181 Iowa 940 | Iowa | 1917
1. One of the first questions to be considered is whether there was one contract or two, and whether the defendant was bound to keep the tractor even though he was entitled to refuse the threshing machine and the baling press. The
“Tama, Iowa, July 20, 1915.
“The International Harvester Company of America,
“Dear Sirs:
“On the 25th of June I purchased from one of your agents with the name of B. H. Thompson of Cedar Rapids one 8-16 H. P. Mogul Engine, one new Racine Thresher, ■with 20-inch cylinder and 32-inch rear with 100 feet of belt, one 17x22 International Hay Press, belt power, and that on the 27th day of June said R. H. Thompson accepted $70 (Seventy dollars) under the agreement that said machinery should be at Chelsea and delivered on the fifth (5) of July and that on the 8th of July the Engine was here and I paid the freight on same, $8.25, and give said R. H. Thompson Chattel Mortgage and notes for same machines, and on same day, the 8th of July, said R. H. Thompson told me to go to work and cut my hay as he would guarantee
“Yours truly,
“(Signed) S. G. Tjentland/’
The claim is that this letter amounted to a waiver of the right of rescission, and that it amounted to a demand for damages. We do not think that the letter could be contrued as a waiver of his present rights. Even though he had been willing, on July 20th, to affirm the contract and claim damages for the false representations, it does not •foIIoAV that he consented to wait until July 25th, or that he consented to accept delivery at such deferred date. We think, however, that the letter cannot be fairly construed either as a waiver or as a demand. It only purported to be a letter of inquiry, and such inquiry was pertinent, under the circumstances. We think, therefore, that the trial court properly found that the defendant had not waived his right to rescind.
For the reason indicated, the decree entered below will be modified. The order of rescission and cancellation will stand. The defendant will be allowed to recover $98 with interest, and no more, being the amount paid by him on the purchase price of the tractor, including freight. This will restore the status quo. No damages will be allowed. — Modified and affirmed.