Crabtree v. Messersmith

19 Iowa 179 | Iowa | 1865

Code, J.

i new conflict* of svidonco ' I. The first ground on which the new trial was claimed, was, that the verdict was against evidence. Where there is conflict of testimony, as in this case, and the verdict is not palpably against the * weight of evidence, an appellate court will not, as has been frequently held, interfere.

2. coiraeTbt^'aproperty. II. The first and second instructions given on motion of plaintiff, are objected to, on the ground that they improperly assume facts, and do not correctly state the issues made in the case. An examination of ^}ie pleadings and evidence has satisfied us that the objections in this particular are not well founded.

The third instruction embodies the proposition, that where a debt is payable in personal property, to be delivered at- a particular time, and the debtor fails to deliver it at the time, the creditor may sue for the money due without demanding the property. This is correct law, and the objections to it are unfounded. Games v. Manning, 2 G. Greene, 251; and see authorities cited in the digest of this case in support of the same proposition in Dillon’s Digest, pp. 128, 129.

aUIt“ III. The action was commenced on the 23d day of December, 1861. There was evidence introduced tending to show that by the terms of the original contract of sale, the defendant had his option to pay for the machine in money or m grain, as he earned it with the machine, at any time by or before Christmas, 1861. The evidence also tended to show that the defendant had taken the machine back to plaintiffs, and expressly renounced the contract of purchase under which he had taken possession of it, and left the State and did not return until after Christmas, 1861.

The fourth instruction asked by plaintiffs and given by the court was, in substance, that if the jury believed from the evidence that before this suit was commenced, the defendant declared that he would not retain or pay for the machine, and left the State without making provision for the payment, and did not return till after the time fixed for payment; that such acts were evidence tending to showil an abandonment of the contract which would entitle the plaintiff to bring this suit before the expiration of the time' fixed for the delivery of the grain. • •

The defendant claiming that the suit was prematurely brought, relied thereon in the District Court as a defense to the action, and asked the court, in several instructions prepared by his counsel, which were refused, and which embraced the same idea in different phraseology, to instruct the jury that if this suit was commenced before the time had expired in which defendant was to deliver the grain, then the plaintiff could not recover.

The giving and refusing to give these respective instructions was not error. - The rule of law is well settled, that if, before*the time of performing the contract arrives, the promisor expressly renounce the contract, the promisee may treat this as a breach of said contract, and may at once maintain an action in respect thereof. Chitty on Contr. (10th Am. from 6th Eng. ed.), 799; Hochster v. De Latour, 2 Ellis & Bl. (Q. B.), 678 ; Avery v. Bowden, 5 Id., 714; Elderton v. Emmons, 6 Com. B., 160; Bowdell v. Parsons, 10 East, 359 ; Lamoreaux v. Rolfe, 86 N. H., 38.

. So if a party disables himself from performing his contract, he may be sued, as for a breach thereof, before the day for performance arrives. Trask v. Vinson, 20 Pick., 111; McArthur v. Ladd, 5 Ohio, 514; Heard v. Bowers, 23 Pick, 455.

The fifth, sixth and seventh instructions were the same in substance as the fourth, and the giving them was not error.

Without reciting further here each instruction given and refused, we may say that we have carefully examined them, and find that there is no error therein to the prejudice of 'defendant.

The instruction given by the court on its own motion, and which was strongly favorable to the defendant, is the one of most doubtful correctness. But since the error, if any, could not possibly have operated to defendant’s prejudice, .he cannot, complain..

The judgment of the District Court is

Affirmed.