Deane v. Everett

• Decision Date: 02 February 1894
• Citation: 90 Iowa 242,57 N.W. 874
• Parties: DEANE ET AL. v. EVERETT.
• Court: Iowa Supreme Court

90 Iowa 242

57 N.W. 874

DEANE ET AL.

v.EVERETT.

Supreme Court of Iowa.

Feb. 2, 1894.

Appeal from superior court of Council Bluffs; J. E. F. McGee, Judge.

Action at law to recover the contract price of one iron safe sold by the plaintiffs to the defendant. There was a trial before the court without the intervention of a jury, and a judgment for the plaintiffs. Defendant appeals.B. W. Hight, for appellant.

Sims & Bainbridge and Montgomery, Charlton & Hall, for appellees.

ROTHROCK, J.

1. The plaintiffs are general agents for the sale of Hall's safes, bank and time locks, and their place of business is at the city of Omaha, in the state of Nebraska. On the 5th day of October, 1891, one of the agents or solicitors of the plaintiffs called upon the defendant at his place of business in the city of Council Bluffs, in this state, and took from the defendant two orders, which were in these words:

“October 5, 1891.

A. L. Deane & Co., Agents for Hall's Safes, Bank & Time Locks: Please ship, as soon as possible, to Leonard Everett, town of Council Bluffs, county of Pottawattamie, state of Iowa, one number 86 X fire burglar proof safe, as illustrated on page 65 of Hall's Safe & Lock Co.'s catalogue. The inside measurement of same to be 36 inches high, 27 & 1/2 inches wide, 19 inches deep. For the said safe, delivered free in my office, directed as above, I agree to pay to your order the sum of three hundred and sixty dollars, ($360.00,) as follows: Cash on arrival of safe, and my other safes to be placed as I may direct in my office.

Leonard Everett.

To be delivered within 3 days.

C. B. Pope, Agent.”

“Council Bluffs, October 5, 1891.

A. L. Deane & Co., Agents for Hall's Patent Safes, Bank & Time Locks: Please ship, as soon as possible, to Leonard Everett, town of Council Bluffs, county of Pottawattamie, state of Iowa, one number 84 2nd hand fire McNeal & Urban safe. For said safe, delivered free in my office, directed as above, I agree to pay to your order the sum of fifty-five dollars, ($55.00,) as follows: Cash on arrival of safe; the safe shown to me.

Leonard Everett.

To be delivered within 3 days.”

These orders were taken to the place of business of the plaintiffs, when they immediately refused to accept the order for the McNeal & Urban safe, and notified the defendant of such refusal by the following letter:

“Omaha, 10, 5, 1891.

Leonard Everett, Council Bluffs, Iowa.--Dear Sir: Referring to the order for safes given our man to-day, will say that it will be impossible for us to fill the orders at the price mentioned. It would be an extraordinary low price for the safes, delivered here in Omaha on first floor; and taking the cost of hauling to Council Bluffs, and hoisting to 2nd floor, from that, leaves us no margin for doing business. But we will do this: If you will add twenty ($20.00) dollars to your offer, we will accept, and place safes in your office as directed in order; otherwise, we shall have to decline filling it.

Yours, very respectfully,

A. L. Deane & Co.

P.”

The other order was accepted, but nothing more transpired in the matter until October 15th, when the same agent again called on the defendant, and notified him that the second order would not be filled. These two orders were written upon the same sheet of paper, and the defendant detached the last one and kept it, and delivered the first one to the agent, and said to the agent “perform as much of the contract as you can.” The plaintiffs delivered the Hall safe, and put it in position in defendant's place of business. This action was brought to recoverthe amount named in the first order and interest. The defendant set up a defense and cross claim by which he demanded damages because the plaintiffs injured his building in placing the safe therein, and because the lock of the safe was defective. He further claimed damages for a refusal to comply with the order for the McNeal & Urban safe. The pleadings were verified, and the plaintiffs filed a reply to the answer and cross claim, which was verified by one of the plaintiffs' attorneys. The defendant moved to strike the reply from the files because the verification was insufficient. The court overruled the motion, and the defendant excepted to the ruling. The defendant then filed a written motion for the oral examination of the attorney who verified the reply, touching his competency to make the verification. The court overruled the motion, and defendant excepted. Afte...