Watson Coal & Min. Co. v. James
| Decision Date | 25 June 1887 |
| Citation | 33 N.W. 622,72 Iowa 184 |
| Court | Iowa Supreme Court |
| Parties | WATSON COAL & MIN. CO. v. JAMES AND OTHERS. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Warren county.
Action at law. The petition is in two counts,--the first upon a written contract, and the other upon a settlement of claims under the contract. There was a judgment upon a verdict for plaintiff. Defendants appeal.Stone, Ayres & Curtis, for appellant.
Parsons & Perry, for appellees.
1. It becomes necessary for a proper understanding of the grounds upon which we base our decision of the case to set out in full the petition, and an exhibit referred to therein. They are in the following language, found in the abstract:
“PETITION.
(1) That plaintiff is a corporation, and that on the twenty-second day of October, 1883, the defendant J. T. James, in the county of Warren, executed to the plaintiff his contract in writing, by which he agreed to pay the plaintiff the sum of $2,500 in coal, at $1.50 a ton, to be delivered at Ford, in said county, according to the terms and conditions of said contract, a copy of which is hereto attached, marked ‘A,’ and made a part thereof; that from time to time, after the making of said contract, the plaintiff demanded said coal of the defendant at the place and according to the terms of said contract, and in all respects performed all the conditions thereof on its part; that the defendant delivered coal to the amount of $467.76, on said contract, and refused to deliver any more coal on said contract.
(2) That on the twenty-second day of October, 1883, the defendant delivered to the plaintiff his contract, a copy of which is hereto attached, marked ‘A,’ and made a part hereof; that said contract was, by its terms, to be performed in Warren county, Iowa, and that defendant failed to keep said contract, so that on the fourteenth day of October, 1884, there remained due and payable thereon the sum of $2,032.34, so that on said fourteenth day of October said parties accounted together of the amount that had been paid on said contract, and agreed upon the amount remaining due on said contract in money, at $2,032.34; $1,000 thereof was then paid, which was applied thereon; and it was further agreed, as a part of said settlement, that said defendant should deliver to the plaintiff, in satisfaction of the amount still due upon said bond, certain good notes, then and there agreed upon; that the defendant failed and now refuses to deliver said notes; that there now is due and payable upon said contract in money, the full sum of $1,032.34, and interest thereon at six per cent. from October 14, 1884; for which sum, with interest, the plaintiff demands judgment.”
DES MOINES, IOWA, October 22, 1883.
For and in consideration of property this day purchased from the Watson Coal & Mining Company, I hereby agree to furnish on the cars, at the coal mine at Ford, Iowa, on demand, commencing as soon as the coal works can supply the same, good merchantable screened coal by the car-load, at $1.50 per ton, as weighed at the International Distilling Company's works in Des Moines, Iowa, to the amount of $2,500, at the above-named price per ton. But the daily demand for coal by said company shall at no time exceed one-half of the daily output of said mine. And it is agreed that, in the event of an increase of price of mining above four cents per bushel at any time during the term of this agreement, I am to have the privilege of paying the amount demanded in cash instead of coal, at the price mentioned above.
J. T. JAMES.”
2. Before answer defendant James filed an affidavit, showing that he was, and had been for a long time, a resident of the county of Marion, distant 30 miles from the place where the court is held, and the expenses he has incurred by attending the court, and based a motion thereon for the change of the venue of the case to the proper county. The motion was overruled, and proper exceptions were taken to the ruling, of which defendants now complain. The other members of the court think that the ruling is correct for the reason that the contract upon which suit is brought, by its terms, is to be performed at Ford. They think that the agreement of the defendant to “furnish on the cars” at Ford the coal is, in effect, an agreement to deliver the coal there to plaintiff. I cannot concur in this view, but am of the opinion that the coal, under the contract, was to be delivered at Des Moines, where it was to be weighed, and thereby fully identified and set apart as plaintiff's property. Until it was thus identified and set apart, the property in it did not pass to plaintiff. The property passed only upon delivery. As no property passed, there was no delivery. The requirement of the contract that defendant was to “furnish” the coal on the cars at Ford, in my opinion simply designates the mine from which the coal is to be taken.
3. It becomes necessary to refer to the other pleadings of the parties. The defendant James, in his answer, denies the allegations of the petition as to the demand of coal and the settlement. He, in substance, alleges that the contract sued on was executed in payment for certain coal lands, or an interest therein, and for machinery, etc., sold by plaintiff to defendant; that plaintiff, through its officers or agents, falsely represented the character of the mine, the quantity of coal therein, and other matters pertaining to the value of the property; and that the consideration of the contract sued on has therefore failed. In another count of his answer (the third) he joins with O. B. Ayers and O. P. Wright and E. Baker, who had before been made defendants in the action, in allegations to the effect that these parties and defendant James were associated in the purchase of the property, and the consideration of the purchase failed, by reason of false representations of plaintiff's officers or agents as to the character of the property, quantity of coal, etc. All these defendants join in asking judgment for the amount of the damages they have sustained by reason of these false representations. In the fourth count of the answer, like allegations...
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