Sandusky Machine & Agricultural Works v. Hooks

Beck, C. J. i. agency: evidence. I. The answer of the defendants to the plaintiff’s petition alleges that the note was given for a cornsheller purchased by defendants fr0m the plaintiff through one Luce, acting as the plaintiff’s agent; that Luce warranted the machine to do good work, and that it would operate well with a certain horse-power owned by the defendant; that the shelter did not comply with the terms of the warranty; and that the defendants paid the note to Luce, who was at the time of payment the agent of the plaintiff. Other allegations of the answer need not be here recited. The cause was submitted to the jury upon the issues presented by the defenses pleaded by the answer as just stated. The jury, in response to questions submitted to them, found that Luce was the agent' of the plaintiff, and made the warranties stated in the defendant’s answer. Upon these special findings, and a general verdict in their favor, judgment was rendered for the defendants. A motion for a new trial on the ground, among others, that the special findings and general verdict of the jury are not supported by the evidence, was. overruled. [307] 2. practice in cpurtfqnessldered oñ appeal. [306] II. We think the court should have sustained the motion for a new trial, for the reason that there was [307] absolutely uo evidence whatever tending to show that Luce, as the agent of the plaintiff, sold the sheller to the defendants, no one testifying that he was the plaintiff’s agent. It is shown that he sold the sheller to the •defendants, but no witness professed to have any knowledge authorizing him to say that Luce was or acted as the plaintiff’s agent when he sold the sheller. It is not shown that he assumed to be the plaintiff’s agent. One witness testified in the following language: “After looking through some of his catalogues, etc., he told us he could sell us a sheller. He was not agent for any sheller except the Sandusky sheller. He says, ‘I have never seen one of them in the country. ’ ” This evidence is not competent to establish, as against the plaintiff, •agency in Luce.' On the contrary, the plaintiff’s officer managing its business at the time.testifi.es that Luce was not the plaintiff’s agent, but that the plaintiff sold the sheller to Luce. The verdict of the jury is plainly without the support of any evidence. The district court erred in not sustaining the motion for a new trial. 3. _._ III. The case was tried on the issues involving the agency of Luce, and the contract of warranty made by him upon selling the machine. The question of ratification by the plaintiff of Luce’s contract of- warranty, by its acceptance of the note given by the defendants for the machine, was in no way presented in the court below, by pleadings, instructions, or otherwise. It cannot be considered in this court. It follows that Eadie v. Ashbaugh, 44 Iowa, 519, and Farrar v. Peterson, 52 Iowa, 420, in which the doctrine of ratification is considered, have no application to this case. The defendants based their defense in the court below on the grounds that Luce was the agent of the plaintiff, and, as such, warranted the machine. The evidence utterly fails to show agency in Luce, Therefore, the defendants cannot recover on [308] the grounds of the agency of Luce and the warranty by him. They cannot in this court change the defense, and base it upon the ratification of the note by the plaintiff, implied by the acceptance of the note. The same case must be reviewed upon this appeal which was made in the court below. See Garland v. Wholebau, 20 Iowa, 271, and cases cited in 1 McClain’s Digest, p. 48,. sec. 145, et seq. IY. Other questions in the case are not considered, for the reason that it does not appear that they will necessarily arise upon another trial; and for another-reason these questions ought not to be considered. We have no arguments for the defendants. When cases are not argued on both sides, we consider only such questions as are necessary for their disposition. If the-case may be disposed of on a single point, we discuss no others, for the reason that rulings ought not to be-made, further than is absolutely necessary, upon questions not fully discussed. The judgment of the district court is bevekse».