40 Iowa 421 | Iowa | 1875
I. At the term of court wlien the cause was tried, the defendant filed his verified petition, asking for a rule
II. The evidence tended to show that the defendant ordered of plaintiffs a small cylinder Hoe press, 32x50; that the
III. There were seven instructions given and none refused. The first was not objected to at all. The second and third were objected to as being misleading. It is not necessary to set them out at length. In our view they are not vulnerable to the objection made, or any other. The fourth instruction relates especially to the contract for the sale of the press, and the liabilities of the parties thereon; and the only part of it complained of is the last sentence, to-wit: But if plaintiff only undertook to order said press from Cottrell & Babcock', such an undertaking would not amount to a contract to sell the same to the defendant.” "We do not understand appellant’s counsel to object to the law embodied in it, but that it has no support in the evidence. In this assumption, counsel overlook the testimony of C. H. Smith, that the press “ was bought of Cottrell & Babcock for Mr. Yaughan, at his solicitation, he having written us that they had such a press for sale, and that it was the press he wanted; he had their printed list of second hand presses, and designated to us in his order just what he wanted; ” and also the letters respecting it. A similar objection is also made to a sentence in the fifth instruction, and upon the same mistaken basis, as we read the .evidence.
IY. The sixth instruction is as follows: “ If you find that after the contract had been entered into between the parties,
We frankly confess, that at first view, the latter part of this instruction seemed to us objectionable — that the doctrine of estoppel could not apply to such a case, for that the element of acting to the prej ndice of the party relying upon the conduct or silence-as an estoppel, is wanting. But an examination of the authorities has satisfied us of the correctness of the instruction ; but, probably the doctrine rests upon the idea of absolute waiver, rather than upon technical estoppel. In Milner et al. v. Tucker, 1 Carr & P., 15, ( s. c. in 11 E. C. L. R., 300.) the action was in assumpsit for a chandelier, and said: “Burroughs, J. When the defendant received the chandelier and found it incomplete and inadequate to the room, he should have given the plaintiff notice immediately, and have returned it as soon as-he could; but if a man take an article, and keep it and use it as his own, though it was not according to contract, he is bound to keep it and pay for it.”
In Cash v. Giles, 3 Carr & P., 408, (s. c. 14 E. C. L. R., 3.7-2,) which was an action for the price' of a threshing machine, the court said, “ Pare, J. If the defendant meant to insist that this threshing machine was not a good one, and suitable to its intended purpose, it was his duty either to have immediately returned it, or to have given immediate notice to the plaintiff to fetch it away, as it was of. no use; now, instead, of
Tbe verdict is supported by tbe evidence and tbe ins true-, tions given.
Aefibmed.