177 Iowa 744 | Iowa | 1916
Plaintiff and defendant are competitors in the grain business at Alexander, Iowa. Plaintiff alleges that, about September 3, 1914, he sold to the defendant firm the corn in question at the agreed price of 73 cents per bushel, and that, on said daté, the corn was delivered to defendant, or its agent, at defendant’s elevator at Alexander. The 226 bushels of corn in controversy are a part of 3,000 bushels of corn purchased by plaintiff from one Christ. Friesleben under the following contract:
“I hereby agree to buy of Chris Friesleben 3,000 bushels or over of white corn on this 31st day of August for 73^5 a bushel, and this corn is to be delivered inside of 10 days. I herewith give him $1.00 in cash to bind the bargain.
“W. H. McDowell,
‘ ‘ Christ. Friesleben. ’ ’
The corn contracted for was all delivered to plaintiff’s' elevator except about four loads, and when Friesleben delivered the last four loads, the plaintiff’s elevator was full, and he sent word by one of his men, John Blue, to defendant, stating the situation, that his elevators were full, and asking them if they would take the four loads of com, being the corn in controversy, at 73 cents per bushel, and was informed by defendant’s agent at Alexander, Chris Shulte, that they would. Whereupon, Friesleben delivered the com to the
There is no dispute as to this, because Blue testified that he asked Shulte if he would take the four loads of corn and if he would allow the market price, and that he told him the market price was 73 cents. Shulte, the man in charge of defendant’s elevator at Alexander, says that, when Mr. Blue came over and Blue told him that they were filled up and that they had four loads of corn'there, and asked Shulte if they would take the last of Friesleben’s corn, he asked if Shulte would pay market price for it, and Shulte said he would make it right with him. Shulte also testifies that he had a conversation with Friesleben’s son in regard to the corn, after the Blue conversation, and when the corn was delivered.
Their defense' is that they themselves had a contract with Friesleben for the same 3,000 bushels of corn and the corn in controversy. Plaintiff paid Friesleben for all the corn, including the four loads sold to defendant, but plaintiff has not been paid by anyone for the four loads of corn so delivered to the defendant.
“That on or about September 2, 1914, at the request of one John Blau (Blue), for and on behalf of the plaintiff, the defendant received of Chris Friesleben at their elevator at Alexander four loads of shelled corn.”
There is no allegation that defendant purchased the corn of Chris Friesleben, but the allegation is that defendant received the corn for and on behalf of the plaintiff. Then follows the part of the amendment to the answer which was stricken out. Furthermore, there is no allegation in the amended answer that defendant took this corn from plaintiff under and according to the terms and provisions of said custom, and that thereby he purchased the corn of Friesleben instead of the plaintiff.
As before stated, the defendant has not paid either plaintiff or Friesleben for the four loads of corn delivered to it. Friesleben is not claiming the money for the four loads of corn, so far as anything appears in the record, and if he was, he would not be entitled to it. Plaintiff has paid Friesleben
We think there was no error in the ruling, but, if there was, we are unable to see that there was any prejudice, because the undisputed evidence is that the corn was delivered to plaintiff by Friesleben, and that he got it, all except the four loads.
When the last four loads of com were delivered, plaintiff, McDowell, was in Hampton, at the deathbed of his sister, and
It seems to us that the question as to the alleged contract between defendants and Friesleben is a matter between them. If defendants had bought the corn of Friesleben and suffered any damages by reason of his failure to deliver it, defendants would, of course, have their redress against Friesleben, but not against plaintiff, who bought all the corn and has paid for all of it." If, as- the evidence shows, the market value of the corn was the same as the contract price, and defendants have not paid anyone for the corn, we are unable to see how it can make any difference to defendants whether they should pay to plaintiff or Friesleben, and, as already shown, Friesleben is not entitled to it.
6. The other assignments of error are that the court erred in overruling defendants’ motion for a directed verdict and in sustaining plaintiff’s motion. We deem it unnecessary to discuss the evidence further. Enough has been said to show that there was a contract between plaintiff and defendants for the 226 bushels of corn at the agreed price of 73 cents per bushel; that such was the market price; that the corn was delivered• and that defendants have not performed their contract by paying plaintiff therefor.
There is no error, and the judgment is — Affirmed.