Blaess v. Nichols & Shepard Co.

Waterman, J. [374] Appellant urges three grounds for a reversal, which we shall take up in. the order presented. The contract of sale and warranty was in writing. It was entered into on defendant’s part by one Bradley as agent. This contract provided that, in case the machine failed to work, notice in writing of such failure should be given defendant within five days after the starting of the machine, and that longer use was conclusive evidence [375] of the fulfillment of the warranty. There was also a clause in the contract barring any right of action after the expiration of the year in which the machine was sold, which was 1893. This action was begun in 1897. Plaintiff was. allowed to testify that, after the contract was executed, Bradley presented the notes for his signature; that he then objected to the limitation of five days for the trial of the machine, and that Bradley told him, if the machine failed to work at any time during the season he need not keep it, that the company would not force it upon him; and, further, that in the fall of 1893 Bradley asked him to keep the machine and try it in the falk of 1894, and said that a man would be sent out to fix it. Plaintiff further testified that a man came from defendant in 1894 and helped to load the machine when plaintiff was about to- start work, but did nothing more. In addition to this, plaintiff testified that Bradley told him, if the machine did not work, to “throw it away.” It is said there is no showing that Bradley had any authority to alter or waive any of the terms of the-' written contract. There is no restriction in the contract upon the authority of defendant’s agents in this respect. No question is made but that Bradley had authority to make this sale and warranty; nor could such a question be successfully raised, since defendant received and has kept the consideration paid. Having power to sell and warrant, Bradley, who appears to have been a general agent, presumably could make such reasonable terms-as he saw fit. First Nat. Bank v. Robinson, 105 Iowa, 464. He had - authority, after having entered into the contract, to change or waive its terms. Osgood v. Backer, 81 Iowa, 375; McCormick Machine Co. v. Brower, 88 Iowa, 607; Peterson v. Machine Co., 97 Iowa, 148. [375] II. The next point sought to be made is that, if Bradley had authority to change the terms of the contract,. [376] no consideration is shown for the new agreement. This issue is fully met by a former holding of this court that, where the obligation of one party under a contract as modified has been performed, the other cannot object that such modification was without consideration. Maxwell v. Graves, 59 Iowa, 613. Plaintiff kept this machine under the modified agreement, giving it a full and fair test, using every endeavor to make it work. Now that he has lost his rights under the original contract, it is too late for defendant to say the modification has no consideration to support it. III. Plaintiff attached to his petition, together with the original contract, the following instrument, as an exhibit : “Decorah, Iowa,-, 189 — . Geo. Blaess wants shake belt, feeder belt; also wants old style for shake belt, beater belt, and feeder belt; and if we cannot make the feeder work all right, you are to put on the Barker feeder built by you. S. O. Bradley. “And Nichols & Shepard is to send a man there to put these things on the separator and operate the feeder early in the season on rye. S. C. Bradley.” lie also introduced this instrument in evidence. 4 It is now contended on the part of appellant that this was a substitution for the old contract, so far as relates to plaintiff’s remedy in case of a breach of warranty; that under this last agreement he was entitled only to another machine, and that a demand therefore upon defendant, and refusal by it, were necessary to convert plaintiff’s claim into a money demand. No such issue as this is presented by the answer, nor does defendant aver a readiness to furnish another machine. In this condition, of the pleadings, defendant is perhaps in no situation to take advantage of plaintiff’s omission to malte demand. But we may well rest our conclusion on another ground: While this instrument was an addition to the original contract, [377] there is nothing to show that it was in substitution of any part. It gave defendant the right to furnish another machine, and, if it had done so, doubtless plaintiff could not have insisted on a money claim; hut it did not annul the provision of the original agreement, which gave plaintiff a money demand in case of a breach of warranty, by limiting his claim only to a new machine. No such limitation can be fairly deduced from the language of the instrument. The judgment of the trial court is in all respects correct, and it is therefore aeeirmed.