Russell v. Critchfield

75 Iowa 69 | Iowa | 1888

Robinson, J.

1. Payment : m farmers’ c'óueoübüftyto — I. It is conceded by appellant that there is due the plaintiff the sum of $169.77, besides interest. This, with the notes adjudged to 7 ... jo belong to defendant, with interest, would e<3.ua,l ™-e amount of the judgment rendered in favor of plaintiff. It is contended by appellant that the agreement in question did not require him “ to turn over to plaintiff' notes which were unconditionally good and collectible.” It is true that it does not in terms require notes of that character. Nothing is said as to the value of the notes. But in case of executory contracts for the sale of personal property not open to the inspection of the buyer, or not in existence when the contract is made, and which is not so particularly described as to leave no room for question, there is an implied warranty that the property to be furnished shall be merchantable. 2 Benj. Sales, secs. 988, 989; Hoe v. Sanborn, 21 N. Y. 562; McClung v. Kelley, 21 Iowa, 511. In this case the agreement did not specify the particular notes to be delivered, but provided that a fixed sum should be paid in notes. We must presume that it could not be paid except in good notes. That this is the construction placed upon the agreement by the parties is shown by the fact that, when the notes were-delivered, plaintiff refused to take certain notes which he knew to be worthless, and took others of which he had no knowledge only on the representation of defendant that they were good and collectible.

II. It is insisted by appellant that the three notes rejected by the judgment of the court below were in fact good, and that evidence given to show that they were worthless was hearsay and incompetent. Some hearsay evidence was given, but we think the notes were shown to be poor by competent evidence. In fact, we do not understand that the defendant made any serious attempts to rebut this evidence.

2'demaüd7: III. Appellant claims that no demand for the notes has been shown, and that it was error to render a judgment for the payment of money for that reason. The alleged failure to demand notes before the. commencement of this suit is not made an issue by the pleadings, and the time for the delivery of the notes was fixed by the agreement. A complete delivery of all notes required by the agreement was claimed by appellant, and he refused to make any further adjustment of the matter. A tender of notes to the amount of one hundred and seventy-five dollars, and judgment for costs, was served by defendant after the petition was filed, and before that; but this was made under section 2900 of the Code, and was not accepted. As judgment was rendered for more than the amount of the tender, it was never material. In our opinion the judgment of the district court, so far as it can be considered on this appeal, was not erroneous. It is therefore

Affirmed.