Boyce v. Timpe
| Decision Date | 10 February 1902 |
| Citation | 89 N.W. 83 |
| Parties | BOYCE v. TIMPE ET AL. |
| Court | Iowa Supreme Court |
Appeal from district court, Lee county; Henry Bank, Jr., Judge.
Action to recover $10 on a written contract for a "write up" in an "illustrated journal." There was a directed verdict, and a judgment thereon for the defendants. The plaintiff appeals, and the case comes to us on a certificate of the trial judge. Affirmed.
John L. Benbow, for appellant.
Watson & Weber and Hamilton & Hamilton, for appellees.
This action is founded on a written contract agreeing to pay ten dollars for a "write up" and "six copies" of the "Illustrated Journal." The defendants deny the performance of the contract on the part of the assignor of the plaintiff. The "Illustrated Journal" in which this "write up" was to be published was to be issued, and in fact was issued, in December, 1897. The six copies thereof were not tendered the defendants until a few days before suit was brought in May, 1898. No waiver of such tender or refusal to accept such copies is pleaded. The suit is based solely upon a strict compliance with the written contract by the assignor of the plaintiff. The failure to deliver the copies of the journal contracted for within a reasonable time after issue thereof was a breach of the contract that would prevent a recovery thereon, in the absence of pleading and proof that such delivery was waived by the defendants. Wernli v. Collins, 87 Iowa, 548, 54 N.W. 365; Courtright v. Deeds, 37 Iowa, 503. It is the settled law in this state that a party may recover upon quantum meruit where he has not complied strictly with the terms of his contract, but he cannot so recover without so pleading. Wernli v. Collins, supra. An appeal may be taken from an order overruling a motion for a new trial. Code, § 4101; Baldwin v. Foss, 71 Iowa, 389, 32 N.W. 389.
The motion to dismiss the appeal is overruled, and the judgment is affirmed.
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