Reuber v. Negles
| Decision Date | 16 June 1910 |
| Citation | 126 N.W. 966,147 Iowa 734 |
| Parties | AUGUST H. W. RUEBER, Appellee, v. FRANK NEGLES, Appellant |
| Court | Iowa Supreme Court |
Appeal from Ida District Court.--HON. F. M. POWERS, Judge.
ACTION for damages for breach of contract. There was a verdict for the plaintiff for $ 133.50. On motion of the plaintiff, the trial court raised the verdict to $ 749 and entered judgment for such amount on the theory that the plaintiff was entitled to recover such sum or nothing. The defendant moved for a new trial which motion was overruled. The defendant appeals. Reversed and remanded.
Reversed and remanded.
Johnston Bros., for appellant.
W. A Helsell, for appellee.
The original negotiations between the parties resulted in a written contract entered into on April 13 1905, as follows:
Odebolt, Iowa April 13, '05. This agreement made this day between Aug. H. W. Reuber, of Odebolt, Iowa and Frank Negles, of Arthur, Iowa witnesseth: That said Negles has sold his 1904 and 1905 crops of popcorn to said Reuber. Said Negles agrees to deliver his 1904 crop on or before September 15, 1905, in good marketable condition, shelled, at $ 1.20 per hundred pounds in elevator at Arthur, free from mould, in popping condition, and agrees to deliver his 1905 crop in good marketable condition any time after November 15, 1905, in crib at Odebolt unless crib can be secured at Arthur, in which case said Negles will deliver his popcorn at Arthur, Iowa. Said Reuber agrees to pay for crop of 1904 at rate of $ 1.20 per hundred pounds and seventy-five cents per hundred pounds for 1905 crop at time of delivery, and also agrees to pay said Negles as part payment in July, 1905, $ 300.00. [Signed] Frank Negles. Aug. H. W. Reuber.
At the time this contract was entered into, defendant's 1904 crop was in his crib and the 1905 crop was yet to be planted. On the 8th day of June, 1905, this contract was orally modified to the extent that, in lien of $ 300 to be paid in July to Negles, the sum of $ 75 should be paid in June, and such sum was then and there paid and accepted on the 8th day of June. In August, 1905, the 1904 corn was delivered and paid for; the previous payment of $ 75 being applied on such purchase price. At that time further oral modification was agreed upon to the extent that the delivery of 1905 should be delayed until the summer of 1906. In November, 1905, this latter oral modification was further modified to this extent, that the defendant should then forthwith deliver about 22,000 pounds of corn in crib at Arthur, Iowa; this amount being a surplus for which the defendant had not sufficient crib room. This quantity was received by the plaintiff and paid for. Upon the delivery of this quantity of corn a further oral modification was agreed upon between the parties to this extent, that the 1905 corn to be delivered in the summer of 1906 should be delivered shelled instead of on the cob and in the crib, and that its price as shelled should be $ 1.25 per hundred, instead of $ 75 per hundred on the cob. To this extent, there is no dispute between the parties as to the terms of the modification. Certain points of dispute between them as to such terms will be noticed later on. On May 15, 1906, defendant notified the plaintiff that the corn was in popping condition and he desired to shell and deliver the same. The plaintiff agreed to come out and examine it, and he did come out and examine same on May 29th. He did not see defendant that day, the defendant being absent on a trip; but he left word with the defendant's son that he might deliver the corn. The defendant returned home on June 15th, and on that day received through his son the message from plaintiff. Thereupon he went to plaintiff on June 16th and offered to shell and deliver the corn forthwith. At this time the plaintiff was not willing to take an immediate delivery of the corn on the alleged ground that it was not in popping condition. The final word of this day's conversation, according to the defendant, was: "I told him if he didn't take the corn I will sell it to somebody else." At this time the corn was worth on the market from $ 1.25 to $ 1.40 per hundred. The defendant did thereupon enter into some negotiations with another dealer, but consummated no contract. On the 30th day of June, the plaintiff made a formal demand for the corn which was refused by the defendant. The testimony of the plaintiff at this point is that on this day the defendant first agreed to comply with the demand and afterwards refused. The testimony of the defendant is that he did not on this day agree to deliver, but immediately refused. At or about this time, the corn was worth $ 2.10 on the market. On July 2d defendant sold to another his entire crop, consisting of 81,720 pounds, for $ 2.10 per hundred.
I. Appellant contends that the contract between the parties was one within the statute of frauds, and was therefore required to be in writing; that any alleged oral modification thereof converted it into a parol contract; and that no oral evidence was admissible in favor of plaintiff as a basis for affirmative relief. This point was urged in the form of objections to evidence offered on behalf of plaintiff, and the same question is presented here. On behalf of plaintiff, it is urged that the question thus argued by the defendant does not arise upon this record, and we think the plaintiff must be sustained in this contention. It is conceded and pleaded by both parties that there was an oral modification of such written contract. Each party sets out in his pleading the terms of the alleged oral modification. The defendant in his answer sets out such oral modification as follows:
Avers the facts to be that some time in August, 1905, by mutual consent between the parties hereto, said written contract was abandoned and set aside, and it was then and there orally agreed by and between the parties hereto that plaintiff was to purchase of the defendant his 1905 crop of popcorn. That the same was to be delivered by this defendant at Arthur, Iowa (as soon as the same was in popping condition, for which the plaintiff was to pay defendant $ 1.25 per hundred pounds shelled corn. That in May, 1906, said corn being in popping condition, this defendant tendered the same to plaintiff, and plaintiff failed and refused to accept or to pay for the same. And again in June, 1906, this defendant again tendered said corn to the plaintiff, and this plaintiff refused to accept the same or to pay for the same.
These averments are precisely the same as the averments of the plaintiff in his petition, except that the plaintiff avers that the time of delivery in the summer of 1906 was to be at his option; whereas, the defendant avers that such delivery was to be made when the corn was in "popping condition." Under the evidence this difference in the pleadings has become quite immaterial. Under the undisputed testimony the plaintiff exercised his option, if any he had, on May 29th, and at that time directed a delivery. The only difference in the testimony of the two parties at this point is that the plaintiff contends that he directed such delivery at that time provided the corn was in good popping condition. He also testified as a witness that he ascertained from subsequent tests that it was not in good popping condition. The contention of ...
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