75 Iowa 585 | Iowa | 1888
— The machine for the price of which the notes were given was sold with the following warranty: “ This machine is warranted to be of good material, and well made; and if a single reaper, and properly operated, will cut from ten to fifteen acres of grain per day; or if a combined machine, and properly operated, will cut from ten to fifteen acres of grass per day, with two horses and a driver (and if a self-raker, to do its own raking as well as can be done by hand; and if a dropper, as well as any other dropper), and cut any kind of grass as well as any other combined machine; and if a single mower, and properly operated, will cut as many acres of grass per day, with two horses and a driver, and cut any kind of grass, as well as any single mower of the same size. It is understood that this warranty is invalid and of no effect unless the machine is properly set up and operated, as per our directions. If said machine does not perform as above warranted, notice must be given to Warder, Bushnell & Glessner, Chicago, 111., subject to a second trial in their presence ; when, if the failure is found not to have arisen from any defect in the machine, it shall be kept by the purchaser, and continued use shall be conclusive proof that it fills the warranty. But if on said second trial said machine does not work as above, it may be returned to us, and the money will be refunded.” On the margin of the paper on which the warranty was printed appeared the following: “Not valid unless countersigned by J. M. Paul, agent, without addition or erasure.” The sale was made by Paul, and he delivered the warranty to defendant at the same time the notes were executed. Defendant had received the machine before that, and had set it up and used it in cutting some grass, but it did not work satisfactorily. On the day before that on which the notes were executed Paul took the machine to the field of a neighbor of defendant, and set it up, and gave it a trial in cutting oats ; but defendant was not present at the trial. After Paul left, defendant used it for three days in the same
The district court instructed the jury, in effect, that the agents had authority to waive the conditions of the warranty which required a trial in plaintiffs’ presence before defendant would have the right to rescind the sale by returning the machine, and left it to them to say whether what was done amounted to a rescission. The only question in the case is as to the correctness of the instructions. It will be conceded that as defendant had notice, by the condition on the margin of the warranty,
Affirmed.