49 Iowa 11 | Iowa | 1878
“5. If you find that the wheat was delivered- in payment -of the notes at Chester, Iowa, and that the defendant refused to pay therefor one dollar per bushel, then the plaintiff is entitled to recover. ”
It is urged that this instruction does not embrace all that is essential to plaintiff’s recovery. It is insisted that before the title could pass, and this defendant could be rendered liable on the contract, the plaintiff' must have delivered the wheat to defendant, or, if the defendant was not present to receive it, then the wheat must have been designated and set .apart for the defendant. But the defendant’s contract is to pay to the Harris Manufacturing Company one dollar per bushel for the wheat delivered to it at Chester, in payment of the notes. When the wheat was so delivered, and defendant was notified of that fact, it became his duty to pay for it under his contract. No further delivery is stipulated for in the contract. Of course, if defendant had tendered the price he would thereupon have become entitled to the manual custody of the wheat. But, as his contract was to take the wheat when delivered to plaintiff, he became liable to an action upon his refusal or neglect to do so, upon due notice of the delivery. In another instruction the court directed the jury that the defendant could not be held responsible unless he had notice that the wheat had been paid on the notes.
IY. The court further instructed as follows:
4._;-: measure of damages. “8, If the plaintiff is entitled to recover, the measure of his damage is the difference between the market value of the wheat at the time of the refusal, and the one dol- , n lar per bushel.
“9. If you should find the plaintiff is entitled to recover, and that at the commencement of this suit he held the wheat*16 for the defendant, then the measure of his damage is one dollar per bushel for the wheat so held, and for such part as he did not hold the measure is as given in the last foregoing instruction.”
This last instruction we think is erroneous. The action was. commenced on the 28th day of December, 1816. Under this, instruction, if plaintiff had the wheat on the 2.8th day of December, he would be entitled to recover from defendant one dollar per bushel therefor, notwithstanding the fact that he may, on the' 29th day of December, have sold all the wheat at ninety cents per bushel. In order to recover the contract price we think it is essential that plaintiff should retain the wheat until the time of trial, so that the defendant, if required to pay the conti act price, may possess himself of the wheat. It does, not appear what became of the wheat delivered to GL L. Hendersou & Co. The plaintiff may have sold it and appropriated the proceeds. For the error in this instruction the cause is
Reversed.