100 Iowa 299 | Iowa | 1896
I. The part of the contract necessary to be noticed is as follows: “Bought of Ed. H. Prior, Postville, Iowa, one dark Quincy granite monument, design No. 785, dimensions as follows: B. Base 2-8x2. -gxl-S, 2nd base'2-0x2-0xl-2, die. 8-4xl-6xl-6, cap,
II. This action is upon the contract,. and to recover thereon the plaintiff must show that he has performed the contract in the particular in issue, namely, as to the cap. This action being on the contract, is unlike those upon the quantum meruit, where there has only been a partial performance, or where
Defendants complain of the use of the word “substantially,” in the instruction quoted above. The same complaint was made in Loftus v. Riley, 83 Iowa, 505 (50 N. W. Rep. 18), and this court said: “We think it was rightly used. It did not justify any material departure from the contract as to the dimensions and quality of blocks to be furnished, but required them to be in all essential particulars like those required by the contract.” In Des Moines & D. Land & Tree Co. v. Polk County Homestead & Trust Co., 82 Iowa, 664 (45 N. W. Rep. 773), the contract was for