Curtiss v. City of Waterloo

38 Iowa 266 | Iowa | 1874

Cole, J.

i estoppel* contract. — I. It is first insisted that the proposition and the resolution of acceptance do not constitute a contract, for the acceptance is not in the very terms of the proposition. The resolution and negotiations were with the plaintiff' individually, and the recognition of him as the contracting party, would seem to preclude any objection that he is not the person making the proposition.

The resolution of acceptance is very direct and positive. That it contains the phrase “ using the gearing formerly used with the Rotary Pump returned,” as italicised by appellant’s counsel in argument, may well be regarded as language used for the purpose of defining the proposition which the defendant, in terms, by the resolution, accepted.

II. It is next claimed by appellant’s counsel that the court erred in rejecting the testimony as to the conversations with the plaintiff at the time the resolution was adopted.

„ vary'wiuteií contract. We see nothing in this case to take it out of the ordinary .and well settled rule, that parol evidence of a contemporaneons conversation is inadmissible to alter of vary a written instrument. And whether the resolutiou pe regarded as such a contract in writing as would answer the statute of frauds, is immaterial; for it cannot be questioned that the proposition and resolution of acceptance became written memoranda of the agreement of the parties, and, therefore, evidence to alter or vary the same would be inadmissible.

3. contract : time oí per- . formance. .. III. The defendant asked several instructions with reference to the time within which the pump should have been completed. Some of these might well have been . 0 . 7 given; but the court gave the same, m substance, in the instructions given to the jury, to-wit: that if the written contract specified no time in which the pump should be completed, then the law implies that it shall be performed within a reasonable time; and that-the plaintiff was bound to furnish the same within a reasonable time; and in determining what is a reasonable time, the jury should look at the contract and the circumstances under which it was made, as well as the time necessary to put the pump in; and if they found the pump was not put in, through want of reasonable diligence of the plaintiff, then they should find for the defendant.

There is no controversy as to the amount that the plaintiff is entitled to recover, the parties having agreed to the identical amount returned by the jury, in case they should find a verdict for the plaintiff.

Aeeirmed.