143 Iowa 564 | Iowa | 1909
On the former appeal (135 Iowa, 117) ■the contract was adjudged to be ambiguous, and its meaning, whether a purchase of three tanks for $30.45 as claimed by defendant, or for that sum each as contended by plaintiff, to be a matter appropriate for the determination of the jury. That issue was submitted at the last trial; but in the fifth instruction, after directing the verdict to be returned in event the contract price was to be but $30.45 .for the three, the court added: “Unless the plaintiffs have also shown by the greater weight or preponderance of the evidence that the attention of the defendants was called to the fact that plaintiffs were claiming $30.45 for each of said tanks and equipments under said contract before said tanks were received and appropriated by defendants. But if the plaintiffs have thus shown that at the time the defendants accepted and appropriated said tanks they or any one of the defendants knew that the plaintiffs were claiming the contract price to be $30.45 each, then, when defendants accepted and appropriated said tanks, they became obligated to pay $30.45 for each, instead of $30.45 for all. . And if you so find you will find for plaintiffs in the full amount claimed, less the freight paid by defendants.” ;