89 Iowa 698 | Iowa | 1894
“Eastern Granite Company, Dealers in Foreign and American Granite. Address': Cedar Rapids, Iowa. Three hundred and ninety dollars. Dubuque, Iowa, May 27, 1890. In consideration of three hundred and ninety dollars and other considerations, I have this day bought of the Eastern Granite Co. a' granite monument from design ‘Hall Draped Urn.7 Material to be of the best quality of Barre granite, of the following dimensions and descriptions: Ground base to be in proportion. Die, l-4xl-4. Total height, eight feet. The other parts of the monument to be in proper proportion, and to be made and finished just like design, Inscription on die: ‘John Heim, born*700 Aug. 1st, 1839; died April 3rd, 1890;? including four lines of verse. Inscriptions all in German. Said work to be erected of first class material, and in workmanlike manner; to include family name in raised letters, on second base, and inscription in sunk letters, on die; and to be delivered and set up on good and sufficient foundation. Said foundation to be put in by Eastern Granite Co., in German Catholic Cemetery, at Dubuque, on or before the fifteenth day of September, 1890, or within a reasonable time thereafter. And, when said monument is erected and set up as above specified, the said Mrs. Heim and son agree to pay to the said Eastern Granite Company, or order, at Cedar Rapids, Iowa, the sum of three hundred and ninety dollars, with ten per cent, interest on same from date of erection till paid; but, at the option of the holder hereof, they may accept, for a part or all of said sum, bankable paper, with ten per cent, interest from date till paid. It is further expressly agreed and understood by and between the parties hereto, and it is hereby made a part of the consideration of this contract, that the title, ownership, and right to possession shall not pass from the holder hereof until this contract is fully paid; and if this contract is not fully paid at maturity, time being the essence of the contract, the holder hereof may, upon canceling and surrendering this contract to the maker, and without' other notice, take possession of and remove said monument from said cemetery. No agreement made by the agent will be recognized by the said company unless reduced to writing, on the face of this contract. No countermands or rescissions will be recognized. John 'Heim, Jr. Agatha Heim. Eastern Granite Company. Per G. Sun-dell, Gen. Agent.”
The defendant presented a motion to the court to strike out the second and third counts of the petition, because the defendants were residents of .Dubuque
It is claimed by counsel for appellants that the contract did not make it the duty of the defendants to furnish the inscription. The contract should be construed in a reasonable manner. Of course, the defendants were to determine that question. The plaintiff had no right to do so. And the contract could not be annulled or rescinded by the mere failure to furnish the inscription. The defendants can not be allowed to use their own default as a reason why the contract should not be performed. The evidence on the trial showed that the sum of ten dollars would be full compensation for inscribing an ordinary verse on the monument, and the jury, by their verdict, deducted that amount from the contract price. The defendants claim that the rule adopted by the court is in conflict with the ease of Scale Co. v. Beed, 52 Iowa, 307. The facts of that case involve an entirely different principle, and the case is so clearly distinguishable from this case that we do not think it necessary to consider the question further.
Y. Numerous other objections to rulings of the court are presented in argument, which we do not think of sufficient importance to require separate consideration or special.mention. A full consideration of the whole record shows that the case was fairly tried, and-that, a just result was attained. The whole defense appears to us to be an assault upon a valid contract, which was fully performed by the plaintiff, except in the immaterial matter of part of the inscription, which was not made because the defendants did not furnish the words they desired to be placed upon the monument. The judgment of the superior court is affirmed.