Tufts v. McClure Bros.

40 Iowa 317 | Iowa | 1875

Cole, J.

I. The order of defendants was solicited from them by an agent of plaintiffs, and was made upon a printed form, at the residence of the defendants, Waterloo, Iowa, April 27, 1872. The order was for an Alaska soda apparatus, specifying the size, left hand position, Italian marble, syrups, tumbler stands, etc., etc., and directing that it be sent by “ freight, soon as possible.’ The printed form concluded with: “ Grive exact diagram on separate sheet, indicating how the edges are to be finished, and where apparatus is to be placed.” Following the printed form with its blanks filled as above indicated, was the following in writing, to-wit: “$112.50 on receipt of goods, cash, and 60 day note without interest.”

After the evidence was closed, the court gave, among others, this instruction: “ 4. The defendants having ordered the same 1 sax,k of pert™ time°o£ei" deiivery. shipped as soon as possible, it was the duty of plaintiff to ship the same¡forthwith; that is,’ allowing a reasonable time for the order to go by ordinary course of mail to place of shipment, and also a reasonable time to pack the same and ship.” One of the leading points in controversy was as to the failure to ship promptly; and this instruction was perhaps the most material one, in the case. In view of the order and its nature, we think it does not correctly state the rulp of law. It is manifest from’ the order and from the printed form itself, with its blanks, that the apparatus was to be manufactured or fitted to the particular counter or location where the purchaser wished to place and use it; and to be of such kind of marble as he should direct, and “ to be finished” on the edges as he should indicate. Instead, therefore, of being required to ship the same “ forthwith ” upon the receipt of the order, the plaintiff is entitled to a reasonable time after receiving tbe order to procure or prepare tbe apparatus conformable to tbe order, not to manufacture an entire new one tlirough-out; for it is quite clear from tbe order itself that many, and most of its parts were, or might be already prepared and equally adapted to an apparatus of any size and for any place; but a reasonable time for procuring or manufacturing tbe parts necessary to adapt it to tbe place for wliicb it was ordered, and make it conform to tbe specifications of tbe order as given by the defendants. Tbe same error is also embodied in tbe seventh instruction. Tbe fifth instruction relates to tbe careful manner of packing, etc.; but since there was no evidence or question respecting this, the instruction should not have been given.

II. Tbe plaintiff asked tbe court to instruct tbe jury as follows: “2. If tbe jury find from the evidence that the 2_. es_ toppei. defendants refused to receive tbe soda fountain, and other articles mentioned in tbe order, on tbe ground that they were not sound, but in a damaged condition, and never made any objection to receive them on tbe ground that they bad not been shipped in a reasonable time, and in compliance with tbe terms of tbe order, then they are estopped from claiming in this court, for the first time, for tbe delay in shipping said fountain.” This was refused by the court, and we think properly so. Tbe essential element of an estoppel, to-wit: that another party has acted, or changed bis position to bis prejudice, in reliance upon tbe alleged conduct, is wanting. But tbe matters stated in tbe instruction are proper to be considered as showing a waiver of any claim because of delay in shipping, if there was any delay. "With this modification or change, tbe instruction might be given. Tbe third instruction, asked and refused, was properly refused because it omitted tbe element of shipping within a reasonable time after tbe order was received. Tbe third instruction given, embodied the same rule, substantially, as tbe first asked by plaintiff and refused. We do not state the objection to the question asked McClure, as a witness, because tbe answer shows that no prejudice could have resulted tbereiyom.

Beversee.