Parsons Band Cutter & Self Feeder Co. v. Mallinger

Bishop, J.-

Counsel for appellant seem to think that under the circumstances disclosed by the record no right was reserved to the defendant to work a rescission of the 3. implied warranty. contract. We can agree quite readily with counsel -¿hat onG party alone cannot ordinarily rescind a contract, or force the other party to rescind, unless his *707 act is in some way authorized or acquiesced iu by tbe other. What two at least are needed to make, one alone cannot' ordinarily undo. This is the doctrine of the text,of 2 Mechem on Sales, section 810, and may be accepted as the general rule. But, as we think, the facts of this case do not bring it within the strict operation of the rule thus stated. The record makes it clear that the machine in question was intended to bo devoted to a special purpose — that of feeding a threshing machine. This was the understood purpose for which it was desired by defendant, and, it may be added, the character thereof was such that as a machine, at least, it could not have been adapted to any other use. In a case presenting such facts, the law implies a warranty to the effect that the machine is adapted to the use intended, and that it will reasonably perform the service required. This doctrine finds ample support in the following authorities: 2 Mechem on Sales, section 1344; Davis v. Sweeney, 75 Iowa, 45 ; Blackmore v. Fairbanks, 79 Iowa, 282 ; Harvester Co. v. Brower, 94 Iowa, 145 ; Bank v. Rathmann, 78 Iowa, 288 ; Aultman v. Trainer, 80 Iowa, 452 .

Appellant does not question the doctrine of the authorities thus cited, but its counsel insist that as the writing signed by the parties in fact makes provision for an express 2. warranties: waiver. warranty, and as an implied warranty cannot arise in the presence of an express warranty covering the same ground, there is no room for the application of the doctrine of implied warranty. The argument seems to be that, having made provision whereby an express warranty might be made available, this must be taken to exclude the idea that any other warranty was or could have been intended; that in the presence of such provision a warranty by mere' implication of law could not arise, as the parties must be presumed to have given expression to' their contract as an entirety by the writing. As applied to the facts of this case the argument is without force. The contract as signed provides that the machine must be paid for, either in cash or notes, before delivery, in order that the express war *708 ranty may become effective. Now delivery was in fact made-by plaintiff, acting through the Mitchell Company, before payment was demanded, and defendant then refused to settle until after a trial of the machine was had. In this plaintiff acquiesced, and, through its agents and employes, assisted in tiying to make the machine do the work it was intended for. Defendant having failed and refused to perform the-stipulated condition upon which the existence of an express warranty was made to depend, he must be held to have-waived all benefit to be derived from such express warranty. Certainly under the circumstances the plaintiff could not have been held as upon an express warranty. Summing up the situation, the parties stood precisely as though the subject of an express warranty had never been suggested between them. Counsel for appellant do not cite us to any authority holding that where a vendor tenders an express warranty up-' on conditions, which warranty the vendee refuses to avail himself of by performing the required conditions, such ven-dee cannot thereafter be heard to assert a breach of the warranty implied, as matter of law, in the event that the machine purchased wholly fails to perform the special work for which it was intended and desired. No good reason in support of such a doctrine suggests itself to our minds, and we know of no authority declaring in favor thereof..

II. Counsel for appellant insist that the attempt to rescind on the part of defendant was ineffectual, for the reason that no authority on the part of the Mitchell Company to- 3. rescission: tender. agree to or acquiesce in a rescission is made to appear. That, to effect a rescission, tender must be made either to the vendor or to some authorized rep-' resentative, is true beyond question. Now the facts already stated disclose the circumstances of the return of the machine. The Mitchell Company was confessedly the agent and representative of the plaintiff company, and as such secured the signature of defendant to the contract, and made delivery of the machine. All that was done in trying-to trying to make the machine work was done with the knowl *709 edge of or by or under ibe direction of tlie officers and employes of that company. In point of fact, tbe direct transaction in its entirety was had with the -Mitchell Company; the plaintiff company appears only as it is named as principal in the contract, and by Griffin, who appeared, after the marine had been thrown aside, to demand a settlement. Such being the facts, we think a sufficient showing of authority appears. It is to be borne in mind that to make the rescission effectual it was not necessary that the agent agree to or acquiesce therein. It is sufficient if the agent who made the sale continues to represent his principal as when the sale was made. The following authorities give support to the doctrine thus stated: Scott v. Wells, 6 Watts & Sargeant (Pa.) 357 ( 40 Am. Dec. 568 ); Booth v. Smith, 117 Ill. 370 (7 N. E. Rep. 610); Vawter v. Bacon, 89 Ind. 565 ; McCormick v. Brower, 88 Iowa, 607 ; Pitsinowsky v. Beardsley, 37 Iowa, 9 .

III. A further contention of counsel for appellant is that there could be no right of rescission on the part of defendant, inasmuch as the record fails to show that the ma- 4. rescission: value: evidence chine was wholly worthless and of no value w]latever_ ^ instruction the jury was told that, if it be found that the machine was so defectively made or so defectively designed that it was wholly worthless and of no value, then the defendant received no consideration for the contract, and, such being found to bo the facts, he cannot be held liable. In the sixth instruction it is further said that if, under all the evidence, the jury believed that the machine was of any material or substantial value, then the plaintiff would be entitled to recover the agreed price of the machine, with interest and freight. -charges added. It will be observed that, in the special interrogatory submitted to the jury, the expression “material or substantial value” is also made use of. As to the fact question involved, counsel for appellant make no claim that the machine in fact met the intended requirements, but they insist that the record affirmatively shows that the machine was *710 at least of some value. The evidence as to the value may be stated in brief: The defendant testified to having knowledge of the value of such machines; that the value of this one was nothing. On cross-examination he says that the old iron in the machine would be worth something. Another witness for defendant testifies that the machine was not worth anything. On cross-examination he testifies that it was not worth anything on defendant’s threshing machine. In addition, there was the evidence of several witnesses to the effect that the machine could not be made to do the work it was intended for. Por the plaintiff there is the evidence of Griffin, its general agent. He did not see the machine at work, but examined it as it lay upon the ground, and after-wards in the warehouse of the Mitchell Company. He says that, from his experience in handling the machines, the one in question at the time of its purchase was worth $210. On cross-examination he admits that it would not be worth a penny on the market if it could not be made to do the work. Such is all the evidence found in the record bearing upon this subject. To our minds it is very clear that therefrom the jury might readily reach the conclusion that the machine in question had no value in fact as a band-cutter and self-feeder. So, too, the jury might well find, the question being directly submitted, that the materials of which the machine Avas composed had some intrinsic value, the amount of which, however, is not disclosed. The case was sent to the jury,, however, upon the theory that, if the machine had no substantial value for the intended purpose, then plaintiff could not recover, and this notwithstanding there may have been some value for other purposes.

We have, then, the question whether the machine, which upon trial proved to be a failure, may be returned to the seller and- such failure relied upon to avoid the purchase price, and this regardless of the fact that the materials of which the machine is composed possess some intrinsic value. In our view, this question does not present two sides, and the importance thereof does not warrant any extended discussion. *711 It is tbe rule of the cases that a seller, by accepting an order for 'a machine, impliedly agrees that the article which he supplies shall in fact be reasonably fit and appropriate to the purpose for which it was designed and intended. To such cases the doctrine of caveat emptor invoked by counsel has no application. In Davis v. Sweeney, supra, the facts disclosed by the opinion make it clear that the questions at issue were in the main identical with those in the case at bar. True, there the appeal was predicated upon a ruling on a demurrer to the answer, but such answer presented all the matters of defense relied upon by the defendant in this ease to defeat a recovery. It was held that such demurrer shoulcL have been overruled, and this holding was predicated upon the thought that “the answer makes it perfectly plain that .they [defendants] never received the machine as in compliance with the contract; and, as it appears from the answer that it was worthless, they could not be required to receive it as a fulfillment of the contract.” The point is not expressly made, but it is clear that the expression “worthless,” as used by the court, has reference to the value of the machine for the uses and purposes for which it - was intended. Quite readily it may be supposed that the machine there in question had some value for other than the intended purposes— for kindling wood or old iron, if for nothing else. As applied to a machine designed and intended for a special purpose, and purchased to be used in connection with such purpose, value is to be determined by reference to its adaptability and fitness for the purpose intended. Rogers v. Hanson. 35 Iowa, 286 . Of course, a buyer might keep the machine and continue to use it for the intended purpose — or, for that matter, other purposes — for such a length of time as that the right to rescind might well be denied. J. I. Case, etc., v. Haven, 65 Iowa, 359 , cited and relied upon by counsel for appellant, was a case where plaintiff sued upon notes given in payment of a threshing machine. Defendant pleaded the breach of an express warranty, in that the machine had proven to be of no value. It appears that defendant had re *712 tained tlie machine and used it'through four threshing seasons. It was held that while the defendant might have rescinded within a reasonable time, yet, having elected to retain the machine and use it, he was limited to a recovery under the warranty of such damages only as he could prove. Without doubt, in such a ease, the value of the machine, even for old iron, would be material. We have examined the other cases cited by counsel for appellant, and we find nothing to change our view as above expressed. We conclude that no prejudicial error is presented by the record. The instructions were even more favorable to plaintiff in some respects than it was entitled to, and the finding of the jury was clearly justified by the facts. — -Amlrmed.