108 Iowa 676 | Iowa | 1899
A copy of the contract in suit is as follows: “This agreement, made this twentieth day of February, 1893, by and between Kimball Bros., of the first part, and Deere, Wells & Co., of the second part, both of the city of Council Bluffs, state of Iowa, witnesseth: That the said first parties have appointed the said second parties agent for the sale of the Columbia scales for the following territory, to-wit: The three western tiers of counties in the state of Iowa; all of the state of Nebraska; that part of South Dakota lying south of the tier of counties traversed by the Pierre Branch of the Northwestern Railroad; thence west to and including the Black Hills; all of the state of Wyoming; and that part of the state of Idaho traversed by the Union Pacific
The contract must be given a reasonable interpretation to effectuate the intention of the parties to it. It would be unreasonable to conclude'that the parties intended that the identical wooden patterns furnished by the scale company should be used after they had become so worn and out of repair that good castings could not have been obtained by using them. The matter of importance to the defendant was that the scales furnished to it should be made like those manufactured by the scale company, and, if that result was accomplished, it was immaterial whether the patterns were the identical ones furnished by that company or not. No doubt, the parties might have made the use of the identical patterns of the essence of the contract, but we are of the opinion that they did not do so. The language of the contract is not that the scales shall be made by the actual use of the patterns in molding, but that they shall be made “from the patterns,” and that “no change from said patterns” shall be made without the consent of the defendant. If the word “from” were used in its primary signification, there would be no basis whatever for the claim of the defendant as to the necessity of using the same patterns; but the word as first used in the contract means much the same as “according to,” and the negative of that is expressed by the phrase in which it is used the second time. We conclude that the interpretation placed upon the contract by the district court was substantially correct.
It is suggested that, when the defendant rescinded the contract, the plaintiff had a number of scales on hand, and that, as to those scales, the rule of damages given by the court was wrong. The plaintiff had in stock scales, at the time the rescission was declared, but our attention has not been called to any evidence which shows the number of scales of the kind on which the plaintiff made the least profit which it had on hand at that time, nor where the matter suggested was brought to the attention of the district court. We conclude that the rule as to the measure of damages given to the jury was correct as applied to the facts in this case.
Objections to the charge to which we have not referred are urged, but are disposed of by what we have said, or are without substantial merit, and need not be specially noticed.
7 VII. The appellant complains of remarks made by attorneys for the plaintiff in presenting the case to the jury.. Some of the remarks objected to are not to be commended,. but most of them purport to have been in response to statements made by attorneys for the defendant, and some appear to have been permissible, although somewhat free, deductions from facts disclosed by the record. We do not think it can be said that the record before us shows that a new trial should have been granted because of the alleged misconduct of counsel.
What we have said disposes of the material questions in the case. We do not find any sufficient reason for disturbing the judgment of the district court, and it is affirmed.