McKinney v. Herrick

• Decision Date: 08 June 1855
• Citation: 23 N.W. 767,66 Iowa 414
• Parties: MCKINNEY v. HERRICK
• Court: Iowa Supreme Court

23 N.W. 767

66 Iowa 414

MCKINNEY v. HERRICK

Supreme Court of Iowa, Des Moines

June 8, 1855

Appeal from Ida District Court.

THE defendant pleaded an equitable defense, to which a demurrer was sustained, and he appeals.

AFFIRMED.

Robinson & Milckrist, for appellant.

Rollins & Bradshaw, for appellee.

OPINION

SEEVERS, J.

The plaintiff in his petition sought to recover on two written contracts, which, for the purposes of the case, may be regarded as containing the same provisions in every respect. The following is a copy of one of them:

"ESTABLISHED 1849. THE NORTH AMERICAN LIGHTNING-ROD CO. ORDER FOR ERECTION OF CONDUCTORS.

"It is agreed that, after the erection or delivery of rods, this order is negotiable.

"Mr. L. Knight, Agt. for H. McKinney--SIR Erect (or deliver) at your earliest convenience, on my house, a system of circuit conductors (three points and two rods to the ground) of the Star lightning-rod, in a proper and substantial manner, in accordance with scientific rules, and I will pay for the same on completion of work in cash, or note due June 6, 1885, at the rate of 67 1/2 cents per foot for the rods, $ 3.50 for each point, and the price of five feet of rod for each galvanized brace, $ 7 for each horse, rooster, or points of compass, $ 5 for each arrow, and $ 3 for each ball.

"It is expressly understood by the signer of this order that he signs the same upon his own judgment, after due deliberation by him, without any undue influence having been used, or relying on representations made by any agents other than written or printed on this order. In case of default in settlement as indicated above, when this order is filled, I agree to pay the amount at Ida Grove, Iowa. No charge for guaranty. Discount, $ 9.58. To use three points, three balls, one arrow. ALPHA HERRICK."

"Dated on June 6, 1884.

The amount sought to be recovered is $ 199.64, with interest from the date of the contracts. The defendant sought to reform them on the ground that the true contract was not stated in the writings, and that they had been obtained by fraud and misrepresentation. But it was conceded that the plaintiff was entitled to recover thirty dollars, and a tender was made for that amount. The answer is lengthy. We deem it unnecessary to set it out. Conceding that the true contract is stated in the answer,--and this for the purpose of the case must be done, --the defendant, by fraud and misrepresentation, was induced to enter into a contract whereby he bound himself to pay $ 199.64, when he supposed he was only obligating himself to pay thirty...