192 Iowa 1121 | Iowa | 1922
Answering, defendant denied that it sold the machine to plaintiff as alleged in the petition or in any other way; denied that the parties from whom plaintiff purchased the picker made the guaranties and warranties as alleged, or that said parties had any authority to make the same, if they were in fact made; denied generally the allegations of the petition.
Plaintiff is the brother of S. C. Thornton, of the New Providence Hardware Company partnership. The latter was a witness for plaintiff, and, as we understand the record, was not, at the time of the trial, an agent for the defendant. Johnson was not a witness in the case.
The trial court, construing the different contracts, instructed the jury that Johnson had, as claimed by plaintiff,
If these matters were properly jury questions, and plaintiff failed to establish them, then, under the instructions, the verdict was properly returned for the defendant. We do not understand appellant to controvert these propositions. We have no means of knowing upon what ground the jury found for the defendant. Appellant does not complain as to the form of the instructions, but, as said, complains that there was nothing to submit to the jury. Plaintiff relies upon express warranty. The abstract, as originally filed, did not contain any of the evidence introduced by the defendant. Thereafter, appellant filed two or three amended abstracts, and these in turn have been amended by an additional abstract by appellee.
1. As we view it, the main question in the case is whether tliere was a warranty; or rather, whether the evidence was such as that it ivas for the jury to say whether there was or was not a warranty. If there was no such warranty as claimed by plaintiff, then the fact that the machine did not work as well as plaintiff thought it should, would not be so material. In other words, if there was no warranty, there could be no breach, nor could there be a rescission because of an alleged breach.
The evidence as to the alleged warranty, stated as briefly as may be, is as follows: Plaintiff had about 225 acres of corn to pick that fall, and his boys wanted him to get a corn picker; so he came to town the next morning, to see about getting one. A neighbor introduced him to George Johnson. Plaintiff asked Johnson what the warranty was on the picker, and Johnson replied that it was made — to be made — of good material, with good workmanship, and to do the work it was made to do. The
Plaintiff testifies that nothing was said at that time about the terms of payment, and it is not claimed by plaintiff that anything was said at that time about the'-price, or anything else in regard to the machine, to Johnson or by Johnson. It is not claimed that plaintiff had any other conversation with Johnson in regard to a warranty or in regard to the purchase of the picker than we have stated. The terms of the purchase were stated to plaintiff when he went to get the picker and settle for it, two or three days afterwards. Plaintiff does not remember that Johnson was present at that time. Other witnesses say that Johnson may have been in the store somewhere, or he may have stepped out. At that time, plaintiff gave his note, which was made out by one of the firm. Plaintiff says that he spoke about hitching onto the machine, and his brother said, “You don’t hitch onto that picker until you settle for it.” He then went in, and gave his note for $300. Plaintiff’s brother, S. C. Thornton, testifying for plaintiff, somewhat evasively said that he did not say to plaintiff, at the time of the settlement, that he must settle for the picker at once, before it was taken out, and that witness would then go out and start the machine and test it out for him, and if plaintiff was not satisfied with it, witness would bring it back, and give back the note, and that, if plaintiff wanted to keep the machine, he must say so then, after the test. While witness gives his conclusion that he “does not think it meant what we said all through,” he admits that that is the substance of what was said. After the settlement, the picker was taken to plaintiff’s farm. Johnson and both the partners, S. C. Thornton and Miller, went along, wanting to see how it worked. S. C. Thornton further testified that, after the machine had been started and tested out that day, plaintiff said to Johnson, in his presence, that plaintiff was satisfied with the machine and would keep it; that plaintiff accepted the machine at that time.
The trial court, in its instructions, after defining warranty,
motion for a directed verdict. Ellyson v. Peden, 173 Iowa 217, 223; Tewkesbury v. Bennett, 31 Iowa 83; McGrew v. Forsythe, 31 Iowa 179; Schlichting v. Rowell, 140 Iowa 731, 735; Davis v. Berkheimer, 152 Iowa 270, 272; Ellis v. Barkley, 160 Iowa 658, 661. In cases where representations are relied upon as constituting fraud and deceit, it is held that whether a representation is an expression of opinion or an affirmation is a question for the jury. Hetland v. Bilstad, 140 Iowa 411, 416; Creamer v. Stevens, 192 Iowa 920.
2. Having disposed of the main point in the case, it is only necessary to refer to the other points briefly. Witnesses for plaintiff who operated the machine say that it worked pretty
Other questions of minor importance are argued by both sides, but we have noticed the points which are controlling. There appears to be no error, and the judgment is — Affirmed.