Lake v. Western Silo Co.

• Decision Date: 29 June 1916
• Docket Number: 30612
• Citation: 158 N.W. 673,177 Iowa 735
• Parties: H. B. LAKE, Appellee, v. WESTERN SILO COMPANY, Appellant
• Court: Iowa Supreme Court

158 N.W. 673

177 Iowa 735

H. B. LAKE, Appellee, v. WESTERN SILO COMPANY, Appellant

No. 30612

Supreme Court of Iowa, Des Moines

June 29, 1916

REHEARING DENIED SATURDAY, SEPTEMBER 30, 1916.

Appeal from O'Brien District Court.--WM. HUTCHINSON, Judge.

ACTION to recover the amount paid by plaintiff for a silo which he purchased from defendant. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

Guy A Miller and O. H. Montzeimer, for appellant.

Herrick & Herrick, for appellee.

DEEMER J. EVANS, C. J., PRESTON and SALINGER, JJ., concur.

OPINION

DEEMER, J.

In June of the year 1912, plaintiff purchased from defendant, through its agent, one Tjossen, a resident of O'Brien County, this state, one silo, known as the Champion, to be delivered to him (plaintiff) at the town of Gaza in said county. The contract was in writing, and consisted of an order, signed by plaintiff, and accepted by defendant, for "one" silo: diameter, 18 feet; height, 36 feet; material, fir; price, $ 445; full length stave, free from knots; freight allowed. The order also provided:

"If, upon receipt of silo, any part or parts are found defective or missing, I will at once notify the Western Silo Co. in writing, and give them reasonable time to replace all such parts, and at such time as such replacements are made, their responsibility ceases. This order can only be cancelled by purchaser sending the Western Silo Co. draft for 25 per cent of the purchase price, before shipment is made."

The silo was shipped "knock down," and was received by plaintiff, at the railway station in Gaza, early in June of the year 1912, and taken by him to his farm, which was about one quarter of a mile from the town of Gaza, and there carefully stored in a barn, where it remained until about the 8th or 10th of September of the same year. In the meantime, and about September 1st, plaintiff paid a note, which he had given for the purchase price of the silo. About the 8th of September, plaintiff concluded to set the silo up; and so, with the help of defendant's agent and three or four other men, a concrete foundation was built, and, in assembling the staves, it was found that not enough were sent to complete the circle, there being six short. Defendant's agent immediately went to the depot, and telegraphed the defendant to send the needed material. Instead of sending full-length staves, in response to this telegram, defendant shipped two-piece staves; that is, instead of 36-foot length staves, it sent 6, 12 feet, and 6, 24 feet in length, so arranged as to be spliced. These, plaintiff refused to accept, and he wired the defendant:

"I have not received what I bought in silo, and refuse same. Will draw on you for amount paid."

Plaintiff also notified defendant's agent that he refused to accept the silo, and that, if the company did not furnish full-length staves, they could take their silo. The defendant never shipped any full-length staves, and plaintiff told the agent, about ten days after the attempt was made to set it up, that the silo "was there subject to defendant's order." Plaintiff expended something like $ 30 for labor and material, in attempting to erect the silo. He employed counsel to protect his rights, and, on or about October 10th, counsel notified defendant that the silo was at plaintiff's farm, subject to defendant's risk. This action was then commenced by plaintiff, to recover the amount paid, and the amount expended by plaintiff in attempting to set up the silo. Plaintiff did not return the materials he had received, to the depot where he got them. In his petition, he alleged:

He "did not discover that said silo was not complete, as represented by the said agent of the defendant, until an effort was made to erect the same, when it was discovered that the same was incomplete, and could not be erected in its then condition, and defendant was duly notified that said materials were held by plaintiff at its risk, and repayment of the amount paid for said silo was demanded. That both said letters are in the possession and under the control of the defendant."

The action was commenced in O'Brien County. Defendant appeared, and moved that the venue be changed to Polk County, its principal place of business. This motion was denied, and the case then went to trial on the issues joined, resulting in a verdict for plaintiff, in the full amount claimed by him.

I. It is claimed that the court erred in denying defendant's motion for a change of venue. Plaintiff relies upon the fact that defendant had an office or agency in O'Brien County, out of which this transaction grew, and that the action was properly commenced in that county. It appears that one Tjossen, a resident of O'Brien County, was employed by defendant to sell silos on commission; that he took many orders for silos in said county, and assisted the purchasers in the erection thereof. Several were delivered on such orders, at the time plaintiff received his silo. True, the agent had no permanent office in said county,--that is to say, no room in which he officed,--but he was defendant's agent for the purpose of soliciting orders, not only in O'Brien, but in other counties, and he took plaintiff's order for the particular silo in question. Under Code Section 3500, as construed by this court, the action was properly commenced in O'Brien County, and the court did not err in denying the motion for change of venue. See Milligan v. Davis, 49 Iowa 126; Locke v. Chicago Chronicle Co., 107 Iowa 390, 78 N.W. 49; Wood v. Rice, 118 Iowa 104, 91 N.W. 902; Gilbert v. McCullough, 140 Iowa 362, 118 N.W. 511; Pleak v. Marks, 171 Iowa 551, 152 N.W. 63.

II. The court instructed that plaintiff might recover, not only the purchase price paid, but also the expenses incurred by him in attempting to assemble the silo. This is said to be erroneous, because, upon rescission, a purchaser is entitled to recover nothing more than the purchase price, the contract being, by that act, out of the case, and insufficient to support a claim for damages. In this case, it was contemplated that plaintiff should incur expense in assembling and erecting the silo; and neither he nor defendant's agent, who was present, discovered the shortage in the staves until the foundation of the silo was laid, and the staves put in place. As plaintiff did not know the number of staves required, until he came to assemble the silo, and, as an ordinarily prudent man, was not bound to make this discovery, we think the trial court properly instructed that plaintiff might recover, not only the money paid, but the expense he was put to in attempting to erect the structure. Mann v. Taylor, 78 Iowa 355, 43 N.W. 220, tends to support this view. See also Warren v. Mayer Mfg. Co. (Mo.), 161 Mo. 112, 61 S.W. 644; 35 Cyc. 645 and cases cited. The cases relied upon by defendant do not run counter to this view.

III. In various forms, it is contended that the court erred in permitting a recovery by plaintiff, for the reason that it was not alleged in the petition, or proved upon the trial, that he had returned, or offered to return, the silo, to the place where he received it. He received it at the depot in the town of Gaza, and hauled it to his farm, at least a quarter of a mile away, and he did not return it to the depot. Plaintiff does not expressly allege a return, or an offer to return the silo. The statement made by him was that defendant was duly notified that said materials were held by plaintiff at its (defendant's) risk. He proved that he told defendant's agent that he would not accept the silo; that they could take it; and that it was there (at the farm), subject to their order. The telegram which plaintiff sent the defendant has already been referred to, and this constituted no more than a refusal to accept the property. Defendant admitted, however, that it received a letter from plaintiff's counsel, before suit was brought, that the machine was there at its (defendant's) risk. Was this a sufficient tender, or offer to return the silo? The general rule is, that, if a buyer rescinds a contract of sale, he must return, or offer to return, all that he has received under the contract; and the tender, or offer, should be to return the property to the place where the property was received by the buyer; and, to make out a case for rescission, such tender must be pleaded, or an offer to return must be made in the pleadings. National Imp. & Cons. Co. v. Maiken, 103 Iowa 118, 72 N.W. 431; Eadie v. Ashbaugh, 44 Iowa 519; Lunn v. Guthrie, 115 Iowa 501, 88 N.W. 1060; McCorkell v. Karhoff, 90 Iowa 545, 58 N.W. 913.

As the law does not require the doing of vain things, if the seller refuses to accept the goods when offered, or indicates a purpose not to rescind, if tendered, no formal tender is necessary. Olson v. Brison, 129 Iowa 604, 106 N.W 14. There are some other exceptions...