
    Davis’ Sons v. Sweeney et al.
    
    1. Sale; op machine : conditions : evidence. In an action upon a contract to take a machine and to execute notes for the price of it, where the defense was a breach of the implied warranty that it was suitable for the purpose for which it was intended, it was proper to admit evidence of declarations made by plaintiff’s agent to defendants at the time, of the sale in regard to the excellencies of the machine, and of his pei’mission to them to take and try it before making the notes, and to return it if it did not prove as represented.
    '2. -:--: breach op warranty : evidence. In such case evidence was properly admitted comparing the machine in question with a good machine subsequently purchased by defendants, as it tended to establish the breach of warranty.
    ‘d. The Same. In such case it was proper to permit a witness to testify that he had never seen a machine which did not do better work than the one in question,
    
      
      Appeal from Dubuque District Court. — Hon. John J, Net, Judge.
    Filed, May 31, 1890.
    Action to recover for a threshing machine. There was a judgment on a verdict for defendants. Plaintiffs appeal. This case has before been in this court. See 75 Iowa, 45.
    
      J. C. Longuemlle, for appellants.
    
      McCeney & O’ Donnell, for appellees.
   Beck, J.

— I. The pleadings in the case, and the facts, so far as they were necessary to the decision in the prior appeal, appear in the opinion announcing our decision therein, which will be consulted in connection with this opinion. It will be observed that the defense set up by the answer is to the effect that the machine did not comply with the representations made by plaintiffs’ agent, and was incapable of performing the work for which defendants intended it, and for which it was contracted to them, and that they were authorized by plaintiffs’ agent to try the machine, which they did, and it appeared from such trial that it did not comply with the representations made by plaintiffs’ agent. It is held in our former opinion that the action is upon the contract to take the machine and execute notes therefor, and that the defense is based upon the failure of the implied warranty arising upon the fact that the machine was not suitable for the purpose for which it was intended.

II. Defendants were permitted to introduce evidence of conversations with plaintiffs’ agent, wherein representations and declarations were made touching the character and excellence of the machine, and permission for defendants to try it before executing the notes, and to return it if it proved insufficient, and did not comply with the representations. This evidence was competent, for the very reason that it tended to show the condition and terms of the very contract upon which defendant relied. to support his defense. It does not change nor alter a written contract, nor is it a verbal contract made prior to, or contemporaneously with, a written contract, contradicting or adding terms thereto. The contract sued on is a contract to take the machine. The evidence shows the terms of this contract, and was therefore competent.

III. Defendants were permitted to introduce evidence comparing the machine received of plaintiffs with a good machine bought by them after they returned the machine in question to plaintiffs. This evidence is now made a ground of complaint. It was rightly admitted as tending to show that the machine in question did not comply with the conditions of the contract. It was shown to be insufficient by comparison with a good machine.

IV. A witness was permitted to testify, against plaintiffs’ objection, that he had never seen a machine which did not do better work than the machine m question. Surely the evidence would tend to show the character of the machine, and expressed the knowledge on the subject possessed by the witness.

V. Evidence was rejected, on the motion of defendants, showing what reason the agent of plaintiffs assigned, in a conversation, which induced him to permit defendants to take the machine without requiring them to execute their notes therefor. This evidence is incompetent for the reason, if for no other, that it is hearsay.

VI. The instructions given by the court to the jury accord with prior decisions of this court, and are in harmony with the law. The verdict is supported by the evidence. The judgment of the district court is

. Affirmed.  