118 Iowa 117 | Iowa | 1902
On the 16th of August, 1890, Zimmerman, the purchaser, notified the defendants by letter that he would not keep the machine, but asked no directions as to where delivery of same should be made; in fact, he did not mention returning it, but made a demand for his notes and mortgage and for damages. The failure to answer this letter did not constitute a waiver of the return of the machine. Under his contract he was to return it to the defendants, presumptively, at the place where received, and the defendants were under no obligations to remind him of his contract, and to direct, unasked, his action thereunder.
The sale of some of the notes given for the machine did not operate as a waiver of its return. They were sold to a bank in the usual course of business, and, while they carried with them the mortgage security on the machine in question, there is nothing to indicate that they could not be secured for the purchaser if necessary. And the fact that the machine was mortgaged for a part of the purchase pr'ce would not stand in the way of its return under the contract, no matter where the mortgage might be held; for, if any loss was to be suffered on account of the mortgage, it would fall upon the defendants, who then held the property. -Furthermore, the contract does not provide in terms for the return of the notes. It stipulates for a return of the purchase money, and, in any event, the
Instruction 11 given by the court placed a wrong construction on the contract. The purchaser was bound thereunder to give the machine a fair trial, and to furnish the necessary labor and material to so do, and if necessary this trial was to be when the defendant’s experts were present. This is the clear meaning of the contract, taken as a whole, and any other construction thereof would do violence to its language and intent and put it in the power of any dissatisfied purchaser to prevent entirely the test provided for in the contract.
What has been said disposes of the controlling ques tions in the case, and the judgment must be reversed.