Wernli v. Collins

• Decision Date: 01 February 1893
• Citation: 87 Iowa 548,54 N.W. 365
• Parties: WERNLI v. COLLINS.
• Court: Iowa Supreme Court

87 Iowa 548

54 N.W. 365

WERNLI

v.COLLINS.

Supreme Court of Iowa.

Feb. 1, 1893.

Appeal from district court, Plymouth county; Scott M. Ladd, Judge.

Action in equity for the foreclosure of a mechanic's lien. Judgment dismissing plaintiff's bill, and he appeals.F. M. Roseberry and Geo. C. Scott, for appellant.

Argo, McDuffie & Reichmann, for appellee.

KINNE, J.

1. Plaintiff, on June 17, 1890, entered into a written contract with defendant for the erection on her farm of a windmill pump, tower, well, and the necessary conducting pipes. The defendant was to pay therefor $265, by executing to plaintiff, in 60 days after the mill was erected and in good working order, her promissory note, due in the fall of 1890, or spring of 1891. Plaintiff claims judgment for said sum, and for a mechanic's lien, and makes the necessary averments therefor. The material question raised by the answer is based on the following provision of the contract: “Wm. J. Wernli agrees to dig and fill anchor post holes and ditch for conducting pipe, and to furnish a good supply of water for stock.” The answer, after making certain other allegations, not necessary to be stated, avers that plaintiff did not perform his contract within a reasonable time, and failed to furnish a good supply of water for stock; and that, by reason thereof, defendant, on September 16, 1890, rescinded the contract, and ordered plaintiff to remove said mill and other articles from her land, since which time she has not used said mill. She also denies any indebtedness to plaintiff.

2. The evidence abundantly shows that plaintiff failed to comply with his contract in digging a well that would furnish a good supply of water for defendant's stock. It also shows that plaintiff knew, before the contract was made, the number of head of stock to be supplied with water; that in a few days after the well was dug and mill erected, the water supply practically failed, and though plaintiff had notice thereof, and ample opportunity to remedy the defect, he took no steps to make his contract good by furnishing a supply of water for defendant's stock; that after September 16, 1890, when defendant rescinded the contract, and notified plaintiff to remove the mill and appliances, she never used the same. Now, it is clear that, if this was such a contract as might be rescinded, then defendant was justified in so treating it, and in fact did rescind it. The mill and well failed in the most essential particular to comply with the contract--to furnish a good supply of water. As made by plaintiff, it was useless, and of no value to the defendant. Nor is the fact that the season was dry an excuse for plaintiff's failing to comply with his contract. In terms, the obligations of the contract on plaintiff to supply water was absolute. We cannot alter the terms of the contract by assuming that the plaintiff was to be absolved from complying with that part of his contract in case the season was unusually dry....