Clarke v. McGetchie

49 Iowa 437

Opinion

Adams, J.

1. co^teact: rescission: warranty. The question is as to whether Dumphy’s action should be considered as brought to recover as upon a rescission of the sale, or merely for damages for breach of warranty. The court below thought that Dumphy’s action was brought upon the theory that the sale had been rescinded, and such we think is the correct view. Dumphy claimed to recover more than the purchase price, and he alleges, as a ground of recovery, that the defendants in that action had received the machine back, and had refused to pay the purchase money. It is true the amount recovered appears to have been only one hundred and fifty dollars, which was at least twenty-five dollars less than the purchase price; but this fact is immaterial. Dumphy recovered something under his petition, and this case must be determined by the construction of that petition.

As favoring the construction which plaintiff puts upon it, it is urged that Dumphy’s action was brought against the guarantors of Warder, Mitchell & Co., as well as against Warder, Mitchell & Co. themselves. It is said that the guarantors cannot be considered liable as upon a rescission of the contract, but only for damages for breach of warranty. We may concede this to be true, yet the fact remains that in Dumphy’s petition it is averred that the machine had been received back. If this constituted no ground of recovery as against the guarantors they might have caused the same to be stricken out. But they did not do it. Dumphy had the benefit of that fact upon the trial, and we do not think that either he or his vendee should now be permitted to say that while it is true that the machine had been received back, it was to be returned again after the trial.

Affirmed.