166 Iowa 39 | Iowa | 1914
I. Plaintiff’s suit is based upon a contract entered into between the parties on or about April 1, 1910, which is as follows:
This agreement made'”and entered into this 1st day of April, 1910, by and between Roúndy & McMurray Company*41 of Woodbine, Iowa, and Nicholson Produce Company of Deni-son, Iowa. The first party have this day agreed to sell to second party all of their make of butter from May 1, 1910, until March 1,1911, at a price one cent a pound less than New York market for extras the day of shipment f. o. b. Woodbine, Iowa. Should the first party at any time fail to make their butter of their standard grades, a difference in price shall be adjusted satisfactory to both parties. [Signed] Roundy & McMurray Co., H. J. McMurray. [Signed] Nicholson Produce Co., G. W. Nicholson, Pres.
They claim that, under said contract, they shipped butter to the defendant up to about January 18, 1911, and at such time, upon written notice from the defendant, directed them to ship the butter to other parties for the best price obtainable, and that it would pay for any loss sustained on March 1,1911; that they did so, and sent to the Eastern markets 12,233 pounds of their standard grade of butter, receiving therefor $510.23 less than the contract price as agreed upon between the parties. They further claim that on or about October 24, 1910, they shipped to the defendant under their contract 1,576% pounds of butter, the price under the contract being 29% cents per pound, and of the total value of $457.75; that defendant paid on said shipment $267.53, leaving a balance due of $190.22. Judgment was asked for the sum of the two items stated.
For its answer the defendant admitted signing the paper set out as a contract, and that butter was shipped to it, and also to the Eastern markets. It denied that the shipments on sales are correctly given, and denies any indebtedness, and averred that whatever amounts were due the plaintiff had been fully paid. It further averred that, if any loss occurred on account of shipments to the east, it was because plaintiffs shipped an inferior grade and quality of butter. It also pleaded a counterclaim, alleging that the butter sold and shipped to it was to be of standard grade and best quality, but that it was inferior, and because of such defendant suffered a loss of five cents per pound, or a total damage of $5,000.-
The cause was tried to a jury. In its instructions the trial court held, as a matter of law, that plaintiffs were entitled to recover $190.22 on account of the balance due on the shipment of October 24, 1910, and submitted to the jury the question of liability on the balance of plaintiffs’ claim, and also under the counterclaim of the defendant.
By its verdict the jury found plaintiff entitled to recover $750.94, and by special findings allowed defendant nothing on its counterclaim, and found that the shipments of butter made by the plaintiff to the defendant up to January 18,1911, were of its standard make and grades when delivered f. o. b. at Woodbine for the defendant. From the judgment entered on the verdict, the defendant appeals.
II. The errors assigned relate to the refusal to give requested instructions to the admission and rejection of evidence, and to the giving of certain instructions.
The third and fourth instructions asked by the defendant, and which were refused, were based upon the claim that the paper sued upon as a contract was no more than a
The conclusion of the proposition stated in the refused instructions depends largely upon the construction of the paper sued upon as a contract. If it was, as claimed by the appellee, a contract binding the appellant to take all of its output from May 1,1910, to March 1,1911, of the grade therein required, then the offered instructions were properly refused ; and this regardless of other elements in the instructions which appellee urges were not proper to be included in the charge to the jury.
The claim of the appellant is that by its terms the paper is no more than a proposition. It recites that it is an agreement entered into between the parties, under which the first party agreed to sell to the second party all of their make of butter within the dates given, fixing the price 4o be determined by the New York market, and provides that it should be of the standard grade of the first party. If not of that grade, the price was to be adjusted. The written agreement is silent in terms as to an express promise to pay; but it would be a forced and unreasonable construction to now hold, as claimed by appellant, that it was only a proposition. When 'signed by both parties, and shipments and settlements were made under it, by such acts it presumptively became the written evidence of the respective rights and duties of the parties and of the agreement under which they were acting and by the terms of which they were bound. Des Moines V. R. R. Co. v. Graff, 27 Iowa, 99; Cross v. Snakenberg, 126 Iowa, 636.
III. While counsel for appellant does not seriously challenge the right to consider the instrument as a contract, it is
It appears in the record that on January 18, 1911, the appellant wrote to Roundy & MeMurray that it was impossible to find a market for butter cubes at that time; that it had to reship the butter as fast as it was received, and directed the appellees to “ship the butter on the market, and if we have to stand the loss on it we will do so the 1st of March; hence from this on do not ship us any more butter; ship it to the market, whichever you think best, and take what it sells for, and then you can find out how your butter grades.” The same letter stated that the markets reported the butter received from the appellee as a poor grade of seconds, and “not like the butter you made last season.” In reply to this letter the appellant was advised that under advice of their attorney the appellees would ship the butter on the market, keep account of the loss, and file claim for any loss on March 1st, as per the letter of appellant.
There was evidence tending to show that the butter which was to be furnished under the contracts was intended for the Eastern markets, and the contention of the appellant is that there was an implied warranty that it should
This was the construction placed upon the contract by the trial court, and in answer to a special interrogatory the jury found that all the butter furnished by the appellee up to January 18, 1911, was of its standard make and grade; and this finding must necessarily be conclusive on this appeal as to the quality of all shipments made up to that time.
The correspondence between the parties, a portion of which we have quoted, clearly indicates that both Regarded it as an obligation extending to March 1, 1911, and we think no other construction can properly be placed upon it. The appellant sought to be relieved from it, and, failing in this desire, adopted the means shown in the quotations above given from its letters. The contention of the appellant that it had the right to terminate the contract, and that it could not be held liable for losses in shipments to others hy its direction, cannot be upheld.
IV. In the eighth and seventeenth instructions given by the trial court the jury was told that the plaintiff was entitled to recover the sum of $190.22, being the amount withheld by the
V. Mr. McMurray, one of the plaintiffs, was asked and, over the objections of the defendant, was permitted to answer that they incurred expense in paying added prices for cream
YI. B. Y. Nicholson, manager of the defendant company, was asked what he understood was the grade of the butter contemplated by the contract. Upon objection, he was not
VII. The depositions of several witnesses were taken on the part of the defendant, by which it was sought to prove the grade and market value in Eastern markets of' butter
For the errors pointed out, the judgment is — Reversed.