Bomberger, Wright & Co. v. Griener

18 Iowa 477

• Court: Supreme Court of Iowa
• Decided: June 7, 1865
• Status: Published

Opinion

Dillon, J.

1. Warranty: absolute and conditional. I. It is, of course, competent for a vendor, engaging to warrant the quality of the article he - sells, to make that warranty absolute or condi- . tional.

2. - contract construed. The court, after a very careful examination of the instrument in suit, in all its parts, have reached the conclusion that the warranties therein contained are conditional; and that this condition extends to the defendant’s agreement, if the machine shall fail to fulfill the warranty, to return the same to the agent at Muscatine, or to the plaintiffs at Dayton.

That is, such a return of the machine is, by the contract the defendant chose to make, an “ express condition,” precedent to his right to hold the plaintiffs for a breach of the warranty.

This conclusion, under the entry which parties agreed the court might make (see statement), clearly disposes of the case against the defendant. The defendant has admitted upon the record “that the agent had no authority to dispense with the return of die machine f or “to alter or vary the terms of the contract,” and it is not stated that the plaintiffs had apparently clothed him with such authority.

In the light of the above construction of the contract and this admission, let us see how the case stands. The defendant, as we have seen, must, under the contract, return the machine in order to avail himself of the plaintiff’s warranty. This he admits he did not do. But he pleads an excuse for not doing it, that the plaintiff’s agent dispensed with the return of the machine at the stipulated place; and yet admits that the agent had no such authority. If the agent had no such authority, and if the plaintiffs had never held him out to the world as possessing such authority, the case is precisely the same as if a stranger or third party, in no way connected with the plaintiffs, had requested the defendant not to return the machine, but to retain the same upon his premises. So that the defendant’s admitted failure to observe the condition precedent upon his part, stands unexcused or unjustified.

An express authority from the plaintiffs, independent of, and in addition to, that which Brent would have by virtue of his agency or employment, might .pot be necessary to enable him to make a valid agreement with the defendant authorizing the latter to retain the machine upon his farm.

This would depend upon circumstances, conspicuous among which would be the nature and scope of the duties and apparent powers of the agent. "We do not understand the contract expressly to forbid the agent from making any other arrangement about the return or delivery of machines, but only to declare that: “No agent is authorized (in making sales and taking orders) to make any representations or warranty beyond the terms of the above contract. The :case is silent as to whether Brent was a general or special ■agent.

But the defendant’s admission that the agent had “ no authority ” is equivalent to saying that he had neither an express authority nor an implied one in favor of third persons derivable from his duties and employment. This ■concession is fatal to the defendant’s case, and the judgment of the District Court must be

Affirmed.