McCormick Harvesting Machine Co. v. Williams

Kinne, J.

1 I. The order for the machine in controversy, contained the following provision: “If my crops are a failure, and I do not need a machine, this order to be void.” On the trial the plaintiff sought to show the condition of the defendant’s crops, other than small grain. The court ruled out all testimony relating to the corn and grass crops, and confined the inquiry alone to the oat crop, that being all ■ the small grain the defendant had. These rulings are complained of. We think they were right. The defendant was not buying a harvester to cut his grass or his corn. The palpable intent of this clause in the order was, to cover a case of failure, or substantial failure, of the crop, for the purpose of harvesting which, the machine was ordered. This provision must be construed in the light of the conditions *603 surrounding the parties. The evidence showed, that •the crop of oats was very light — was a substantial failure when measured by the standard of the usual crop, — and the jury were justified in finding the defense of failure of the crop had been established.

2 II. Error is assigned upon the ruling of the court in refusing to withdraw from the jury the defense pleaded in the third count of the answer, — that the machine did not have all brass bearings as represented. And it is urged that the court erred in admitting, evidence of such representations, because they tended to alter and change the terms of the written contract, and because the agent was not shown to have had authority to make such representations. Plaintiff seems to treat the alleged representations as a parol warranty in addition to the written warranty. This is not the proper view. It is not a question of warranty at all. It is not so pleaded. It is pleaded as a false and fraudulent representation which induced the execution of the order. Nor is it a question of whether, in spite of the fact that the bearings were not all brass, the machine was merchantable and reasonably suited for the purpose for which it was purchased. It is always permissible to show by parol that a written contract has been entered into by reason of false and fraudulent representations of the other party, and without which such contract would not have been executed. It hardly seems necessary to cite authorities in support of so plain a proposition, but see the following cases: Nixon v. Carson, 38 Iowa, 338 ; Rohrabacher v. Ware, 37 Iowa, 86 ; Childs v. Dobbins, 61 Iowa, 114 ( 15 N. W. Rep. 849 ); Manufacturing Co. v. Gibson, 73 Iowa, 526 ( 35 N. W. Rep. 603 ); Scroggin v. Wood, 87 Iowa, 502 ( 54 N. W. Rep. 437 ). There was no error in the rulings, nor in the instruction complained of, which correctly states the law. — Affirmed.