192 Iowa 458 | Iowa | 1921
"Agreement entered into this 13th day of September, 1917, between the Dearborn Truck Company, of Chicago, Ill., and the Mackie Motors Company, of Des Moines, Iowa, represented by Mr. B. H. Pierce.
"It is understood by this agreement that we are today entering an order for ten (10) two-ton units that are to be shipped as ordered. Credited in amount of $252.00 each, paid by the Mackie Motors Company on ten (10) one-ton units which are in a "car on track in Des Moines.
"In the event that the ten (10) [two-ton] units .'are not ordered out by the Mackie Motors Company by September 22d, we agree to reimburse the Mackie Motors Company in amount of $252.00 each for any of the ten (10) one-ton units remaining in their possession at that time.
"Further, the Mackie Motors Company agree to store the remaining unsold units, without charge, for -a reasonable time.
The brackets and the insertion therein are ours, and are made as indicating the proper construction of the contract. It is this contract which plaintiff alleges in its petition was breached by the defendant. It appears without dispute in the evidence that, some time in July, 1917, the plaintiff ordered 14 one-ton units and 1 two-ton unit, together with housings therefor. The units referred to consisted of a rear axle, gearing, etc., to be attached to an ordinary automobile, thereby converting it into a truck. The one-ton units were delivered at Des Moines, Iowa, with draft for $3,657, the balance due defendant therefor, attached to the bill of lading. These units had not been removed from the car when the agreement above set out was entered into. The full purchase price of the 14 one-ton and the 1 two-ton units was $4,032, $375 of which was paid in advance of shipment. It will be noted that, though 15 units had been purchased by the plaintiff from the defendant, the agreement above set forth purported to deal with only 10 of them. The-plaintiff agreed, in effect, to take up the bill of lading and to pay the draft attached thereto on September 15, 1917. It did not pay such draft on that date, but did pay the same on September 22d following. The reason for this delay will be referred to later.
The first important question presented for our consideration is to construe the contract. The order of the court below construed the contract as an agreement by the defendant to credit the price óf the 10 one-ton units upon the price of" an equal number of two-ton units, and nothing more. The plaintiff contends that, under the agreement, the plaintiff was not bound to order the two-ton units, although it had the privilege so to do; and that, in the event that the plaintiff did not- order the two-ton units on or before September. 22, 1917, then the defendant agreed to “reimburse” the plaintiff to the amount of $252 for each one-ton unit then remaining on hand unsold. If the construction adopted by the trial court be correct, then the failure of plaintiff’s suit necessarily resulted. On the other hand, if the construction contended for by plaintiff be the correct one, then, the direction of a verdict, against the plaintiff was erroneous. Both parties agree that if, before September
(1) Such is tbe literal provision of tbe agreement.
(2) Such was tbe construction which both parties, in their subsequent communication and negotiations, put upon such agreement.
Tbe specific defense put forward by defendant in this ease appears in Paragraph 10 of its answer, as follows:
‘ ‘ Tbe defendant denies that, in tbe event said one-ton units were not purchased by tbe plaintiff, then this defendant was to reimburse tbe plaintiff in tbe amount of $252 for each of tbe aforesaid ten (10) one-ton units; but this defendant alleges and states tbe fact to be that it agreed to credit tbe plaintiff with tbe purchase price of said one-ton units only in the event that said one-ton units were paid for by September 15, 1917.”
Tbe witness Mead, who was a sales manager for tbe defendant company, and who represented tbe company in the execution of tbe contract sued on, testified as follows:
“He [Mr. Pierce] wanted us to take back tbe 14 one-ton units. Tbe intent of that agreement was that Pierce gave us an order for 10 two-ton units, and on that order we agreed to credit tbe Mackie Company $252 for each of tbe 10 one-ton units, and we take back tbe one-ton units. All this' was conditional upon their compliance with tbe contract, i. e., that they should pay for tbe one-ton units by taking up tbe draft, as stipulated in tbe agreement. Tbe draft was then unpaid. In the event that the Mackie Company had not ordered the two-ton units shipped by September 22d [1917], we agreed to pay them $252 for each of the one-ton units remaining unsold on September 22d. In other words, we agreed to reimburse tbe Mackie Motors Company for tbe 10 one-ton units in tbe event that they were not sold by September 22d, and we would order them from Des Moines to other points. Provided they had taken up the draft by Septem
It will be noted that the one breach of the contract charged by this witness against the plaintiff is that the plaintiff did not take up the draft on September 15th. The important thing at this point is that this witness construes the contract precisely as contended for by the plaintiff. There is in -evidence corre-spondence between the parties which adopts the same construction.
A mutual agreement to rescind a contract is not lacking in consideration.. It is supported by the same consideration, of mutual promise as was the original contract. A mutual agreement to rescind is as valid as a mutual agreement of purchase and sale. It is promise for promise. There is, therefore, no lack of consideration in any feature of the contract.
It will be noted from Mead’s testimony that Pierce, representing the plaintiff, wanted the defendant to take back the one-ton units. The defendant agreed to take back ten of them. In legal effect, this was an agreement to purchase back ten of them if so many remained unsold on September 22d. Under the evidence of Mead, the agreement had in it something of the character of a compromise. Mead testified that he consented to it only as a matter of business policy. The agreement was no less valid on that account. But we need not deal with the ques
Whether the contract might be construed as putting upon plaintiff an obligation to order out 10 two-ton trucks within some reasonable timé after September 22d, is a question which we need not consider, if for no other reason than that the defendant has never complained of such failure nor predicated any breach or claim of damage thereon. What is clear, under the agreement, is that plaintiff was under no obligation to order out the'two-ton units before September 22d.
II. We have no argument for appellee. We have to look, therefore, to the colloquies of court and counsel at the trial, as to the grounds upon which the order of dismissal was based. These were, in brief, as follows:
(1) That the plaintiff did not pay the draft on September 15th.
(2) That the plaintiff’ did not furnish storage for a reasonable time without charge, as provided in the agreement.
(3) That the plaintiff did not order the two-ton units.
Our foregoing discussion disposes of the third alleged breach. As to the second ground, the evidence does not disclose any breach. On the contrary, it appears that the plaintiff did store the goods with the Merchants Transfer Company, which, so far as it appears in this record, was its usual method of storing all goods in its custody. It did here store the same until March 16, 1918, and did, during that time at least, protect the defendant against charges for storage. The defendant ordered out one or more of these units, and ordered them shipped to other localities. They were promptly delivered by plaintiff free of charge, as agreed. On March 16, 1918, these goods were ordered out of the hands of the plaintiff by someone, and were shipped by the.Chicago, Rock Island & Pacific Railway to the defendant’s agency at Omaha. This act appears to have been a blunder upon the part of someone, and responsibility for it appears to be disclaimed by both parties. The trial court properly refused to permit the parties to go into an investigation of that question, as being immaterial upon the issues as
We reach the conclusion that, upon the record before us, it was error to direct a verdict for defendant. We have no occasion to pass upon the question whether it would have been error to direct a verdict for plaintiff. The judgment below is, accordingly, reversed. — Reversed and remanded.
