Alpha Checkrower Co. v. Bradley

• Citation: 75 N.W. 369,105 Iowa 537
• Parties: THE ALPHA CHECKROWER COMPANY, Appellant, v. DAVID BRADLEY & COMPANY
• Decision Date: 18 May 1898
• Court: United States State Supreme Court of Iowa

75 N.W. 369

105 Iowa 537

THE ALPHA CHECKROWER COMPANY, Appellant, v. DAVID BRADLEY & COMPANY

Supreme Court of Iowa, Des Moines

May 18, 1898

Appeal from Pottawattamie District Court.--HON. N.W. MACY, Judge.

ACTION to recover two thousand, five hundred dollars balance claimed to be due for one hundred and ninety-six "Better Way corncutters," alleged to have been sold and delivered by the plaintiff to the defendant under a written contract set out in the petition. The defendants answered, admitting the execution of the written contract set out, the receipt of the corncutters, and denying every other allegation in the petition. For further defense, the defendant alleges that the corncutters were not well made nor well finished, and were of defective workmanship, and wholly unfit for the purpose of cutting corn. He further alleges as follows: "That the machines which the defendant received of the plaintiff, and placed upon the market, were returned by purchasers, because the said machines would not do the work for which they were intended." "(6) That the defendant did all in its power to put said machines upon the market and sell the same but, because of the imperfections and defects therein defendant was wholly unable to sell the same, except as shown in statement hereto attached, marked 'Exhibit A.'". Defendant further alleges that he has on hand one hundred and twenty-one of the one hundred and ninety-six corncutters received from the plaintiff, and has so advised the plaintiff, "and has tendered same to the plaintiff but plaintiff has refused to receive or accept the same." The defendant, by way of counterclaim, alleges the execution of said contract; that relying thereon "and acting as the agent herein, as set forth in said contract," defendant did, at great cost and expense, proceed to dispose of said corncutters; that "they were not well made, nor of good material, nor properly finished, and failed absolutely to do the work for which they were made"; that "defendant was unable to sell but very few of the same, and a portion of those it did sell were returned to it by the purchasers, because said machines could not do the work represented"; that, under said contract, defendant was to have a profit of five dollars; that, if said machines had been as represented, plaintiff would have been able to have sold the same, and made a profit thereon of nine hundred and eighty dollars, and that defendant has been damaged in the sum of one thousand dollars, for which judgment is asked. Plaintiff moved to strike the parts of the answer and the part of the counterclaim quoted above, which motion was overruled; whereupon plaintiff replied to the answer, and answered the counterclaim, denying that the corncutters were defective or wholly unfit for the purposes of corn cutting, also denying that the machines placed upon the market by defendant were returned by purchasers because they would not do the work for which they were intended, and alleging that said machines were doing the work for which they were intended; denying that defendant did all in its power to sell said machines, and were prevented by imperfections therein; denying that defendant has on hand the number of corncutters named in the answer, and denying that defendant has made a tender to plaintiff of said number, or of any number; further denying that defendant was the agent of plaintiff for the sale of said corncutters; denying that defendant, at great cost or expense, or otherwise, proceeded to dispose of the corncutters; denying that the corncutters were not well made, or that they failed to do the work for which they were intended; also denying that defendant was to have a profit of five dollars each, or that the contract fixes what the profit to said defendant should be; and denying that it has been damaged in any sum. Defendant, for amendment to its counterclaim, alleges that, under the contract said corncutters were to be shipped "nicely packed and bundled or crated in knocked-down condition, and ready for local shipment"; that they were shipped loose, improperly packed, and the parts unprotected. Plaintiff, in reply, denied each and every allegation in said amendment. The case was tried to the court, and the court held that the burden was upon the defendant. Judgment was rendered that the plaintiff was entitled to have delivered to it at the warehouse of the defendant in the city of Council Bluffs, Iowa the one hundred and twenty-one Better Way corncutters which defendant then had in its possession, and the defendant was directed to deliver the same at said warehouse upon demand of the plaintiff. Judgment was rendered in favor of the defendant against the plaintiff, for costs. Plaintiff appeals.

Reversed.

Mahoney & Smyth and J. M. Galvin for appellant.

Wright & Baldwin for appellee.

OPINION

GIVEN, J.

--I.

Plaintiff brings this action against the defendant, as purchaser of the corncutters under this contract. Defendant contends that he received the corn cutters as agent for plaintiff, but insists that, as to this case, it is immaterial whether he received them an agent or purchaser. We think the questions discussed involve a construction of the contract in this respect. The contract, after designating the plaintiff as party of the first part, and defendant as party of the second part provides as follows: "That for one dollar in hand paid, and other valuable considerations, receipt of which is hereby acknowledged, said first party does hereby appoint said second party to be their general Western agents for the exclusive sale of the Better Way ear corncutter, Harry Willitts' patent, made by said first party, in all the territory worked by said second party, from their warehouse in Council Bluffs, Iowa and described as follows: The four western tiers of counties in Iowa from south to north, that part of South Dakota south of a line parallel with the line between Iowa and Minnesota from east to west, eastern Wyoming, all of Colorado north of the south line of Arapahoe county, and all of Nebraska, for the period of one year from the date of this contract. Prices and terms shall be as follows: For above-named corncutters, nicely packed, and bundled or crated in knocked-down condition, ready for local shipment, delivered f. o. b. cars at warehouse of said second party in Council Bluffs, $ 15 each, on four months' time, subject to a discount of 5 per cent. for cash within thirty days from receipt and checking of the goods. In consideration of the above-named price and terms, and for the further consideration that said first party agrees to send their representative, Mr. Graham, immediately into the territory above named, and take orders on bona fide sales of 50 cutters at $ 20 each, delivered at warehouse of said second party in Council Bluffs, said second party does place an order for one car load of cutters, not to exceed 100; and further agrees to canvass said territory faithfully with their travelers, and to rush the sale of said cutters as hard as possible; and further agrees to distribute all the printed matter said first party will furnish, which shall be a liberal supply; and first party also agrees to furnish electrotypes of machines so that second party may get up circulars of their own. It is further agreed by first party to allow said second party to advertise said machine in the Council Bluffs and Omaha...