Wernli v. Collins

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

54 N.W. 365

87 Iowa 548

W. J. WERNLI, Appellant, v. MARGARET COLLINS, Appellee

Supreme Court of Iowa, Des Moines

February 1, 1893

Appeal from Plymouth District Court.--HON. SCOTT M. LADD, Judge.

ACTION in equity for the foreclosure of a mechanic's lien. Judgment dismissing the plaintiff's bill, and he appeals.

Affirmed.

F. M Roseberry and Geo. C. Scott, for appellant.

Argo McDuffie & Reichmann, for appellee.

OPINION

KINNE, J.

The plaintiff, on June 17, 1890, entered into a written contract with the defendant for the erection on her farm of a windmill pump, tower, well, and the necessary conduction pipes. The defendant was to pay therefor two hundred and sixty-five dollars, by executing to the plaintiff, in sixty days after the mill was erected and in good working order, her promissory note, due in the fall of 1890, or spring of 1891. The 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 the 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failed to furnish a good supply of water for stock and that, by reason thereof, the defendant, on September 16, 1890, rescinded the contract, and ordered the plaintiff to remove said mill and other articles from her land, since which time she has not used said mill.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 the plaintiff.

I. The evidence abundantly shows that the plaintiff failed to comply with his contract in digging a well that would furnish a good supply of water for the defendant's stock. It also shows that the 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 the 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 the defendant's stock; that after September 16, 1890, when the defendant rescinded the contract, and notified the 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 the 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 the plaintiff, it was useless, and of no value to the defendant. Nor is the fact that the season was dry an excuse for the plaintiff's failing to comply with his contract. In terms, the obligation of the contract on the plaintiff to supply water was absolute. We can not 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. To do so would be to make a new contract to that extent for the parties. The contract is...