180 Iowa 598 | Iowa | 1917
On June 11, 1914, appellant, through its agent F. E. Kabrick, sold a threshing separator, engine and other machinery, to William Rohde, who resided near Rock Rapids, Clay County, Iowa. William Rohde was, at the time, the owner of an old separator and engine, which" appellant agreed to take as part payment on the purchase price of the new machine. .On June 20th, E. O. Kabrick signed an order, in which he agreed to purchase of appellant the secondhand separator, engine and other machinery above referred to, and to execute two notes therefor, one for. $220, due October 1, 1914, and one for $216, due October 1, 1915, at 7 per cent interest. The order was given subject to the approval of appellant. The company accepted the order on June 30, 1914. The new machinery was delivered to Rohde about July 29, 1914. The machinery, at the time of all the transactions above referred to, was situated upon the farm of Mr. Rohde, about 3 miles from Rock Rapids. Appellee did not go to see the machinery
Some time later, the brother, who had conducted the negotiations for the sale of the new machinery to Rohde and the old machinery to appellee, also undertook to sell the secondhand machinery for appellee; but, upon taking a purchaser to the premises occupied by Mr. Rohde, he was informed by him that he would not part with the possession of the old machinery until the company adjusted some difference between them arising out of the purchase of the new machinery. The controversy between Rohde and appellant continued for some time, and, on January 11, 1915, appellee had his attorneys notify appellant that, because he was unable to get possession of the machinery which he had purchased, he elected to, and did, rescind the contract, and demanded the repayment to him of the money which he had paid appellant therefor. The bill of sale executed by Rohde, conveying the secondhand machinery to appellant, provided for the delivery of the machinery to it, loaded, without charge, on the cars at Rock Rapids, Iowa.
Upon receipt of the letter of January 11th, rescinding the contract for the purchase of the secondhand machinery, the manager of defendant at Des Moines wrote a letter to appellee’s attorneys, declining to return the purchase price received from appellee therefor. On January 11, 1915, a representative of appellant called upon Mr. Rohde and adjusted the difficulties between appellant and him, and received an agreement signed by Rohde, agreeing to deliver the secondhand machinery according to his bill of sale. On June 5, 1915, appellant, through the manager of its
This action was brought in Clay County to recover the money paid for the old machinery. The cause was tried to a jury, but, at the conclusion of the testimony, both parties having moved for a verdict, by agreement the jury was discharged, and the cause submitted to the court, which found in favor of the plaintiff, and rendered judgment against the defendant for the amount claimed by plaintiff.
F. E. Kabrick was the agent of appellant, and traveled from place to place in the state 'selling its machinery. The sale of the new- outfit to Bohde, and of the secondhand machinery to appellee, was made in Clay County. F. E. Kabrick resided in Clay County, and the notes given by appellee were made payable at a bank in Spencer, Iowa. It is not claimed that appellant had an office in Clay County or other agency than that of F. E. Kabrick. Section 3500 of the Code provides that suits may be brought in any county in which the defendant has an office or agency for the transaction of business, where the suit groAvs out of, or Avas connected with, the business of that office or agency. The evidence showed that F. E. Kabrick Avas the agent for appellant, having authority to solicit orders for new, and to sell the old, machinery, and that he conducted the nego
“When and where the sale was complete and title to the property passed to the purchaser is largely a question of intent, to be drawn not alone, necessarily, from the writings made or the formal words employed, but also from the conduct of the parties and their methods of dealing. The answer to the question is nearly always a conclusion or inference to be drawn from a consideration of all the circumstances developed by the evidence, and is therefore a question of fact for the jury and not of law for the court.” Hamill v. Joseph Schlitz Brewing Co., 165 Iowa 266.
The bill of sale executed by Rohde, referring to the matter of delivery, stated: “Above machinery to be loaded
The order given by appellee for the secondhand outfit, which was subject to acceptance by appellant, recited:
“You will please deliver on or before the ‘at once’ or as soon thereafter as you can furnish for transportation or deliver to ‘These goods will be accepted where they stand.’ ”
It appears from the evidence that the secondhand outfit was in possession of Rohde at the time he entered into the contract for the purchase of the new outfit, and also at the time of the execution of the bill of sale, and when the written order was signed by appellee and accepted by appellant. The new outfit was delivered to Rohde in the latter part of July, and, some time thereafter, a controversy arose between him and appellant respecting the new machinery, and thereafter, Rohde refused to permit a prospective purchaser of the secondhand outfit to remove the same from his premises. Rohde, however, testified that, after the execution of the bill of sale, and prior to the time the controversy arose between himself and appellant, he would have permitted appellee to take possession of the old outfit, had he sought permission to do so. It is not quite clear from the reeord when the controversy arose between Rohde and appellant regarding the new machinery, but the court may well have found from the testimony that it was near the first of August. He testified that he would not have permitted the machinery to be removed from his premises after the controversy arose. In compliance with the terms of the written order signed by appellee, he executed the two notes and mortgage to secure the payment thereof, and, on or about October 1st, when one of the notes fell due, paid both of them. Up to this time, he had not been to see the machinery, nor had he at any time requested possession thereof.
On June 5, 1915, a letter was written from appellant’s Des Moines office to Bohde, calling his attention to the fact that he had agreed, by his bill of sale, to deliver the old machinery at Bock Bapids, loaded on the cars, subject to the order of appellants, and, as he had failed to do so, demanding the payment of $1,142, which he claimed to be the value of the old outfit. On January 11, 1915, Bohde signed a statement in which he agreed to make delivery of the secondhand machinery in accordance with the terms of the bill of sale. At the bottom of the signed statement appears the following notation, made by the representative of appellant: “I'recommend the delivery to be made where it now stands.”
The above is substantially" a full statement of the evi
Counsel for appellant in argument place much stress upon the following provision of the order signed by appellee: “These goods will be accepted tvliere they stand.” The contention is that this provision of the contract bound appellee to receive the goods on the premises, and that, under the terms of the bill of sale executed by Rohde, he had a right, to take possession of the outfit in question. The language, however, is apparently susceptible of another construction; that is, that it was intended to designate the place of delivery only. This is apparently the construction appellant placed upon this language, as is evidenced by its letter of June 30, as folloAvs: “Same to be delivered to you by your brother, rig being on hand at Rock Rapids.” Evidently the Avriter of this letter understood that delivery of tlie machinery had not been completed, and that some further act was necessary to complete the same. . It is quite clear that the words were not intended at the time as an agreement on the part of appellee to treat the outfit as delivered, because the order was subject to the approval of appellant, and no delivery could have been contemplated until after the appellant had signified its acceptance of the order.
The questions of fact were for the court, and its finding thereon has the force and effect of the verdict of a jury. The court, having the witnesses before it and having heard all the testimony, found the facts in favor of appellee, and, as the inferences necessary to such finding are justified by the evidence, the court’s finding should not be disturbed.— Affirmed.