Formholz v. Taylor , 13 Iowa 500 ( 1862 )

BALDWIN, C. J.

There is one controlling fact in this case, that leads us to disfavor tbe somewhat technical objections of defendants to tbe ruling of tbe court, in refusing certain instructions asked, and in overruling tbe motion for a new trial. That is, tbe defendants received under their contract, in 1857, tbe sixteen two-borse, and tbe one one-borse wagon, and tbe buggy, property, according to tbe value placed thereon by plaintiffs witnesses, worth tbe sum of $1,460, and that could not at tbe time of delivery, according to tbe testimony of defendants’ witnesses, have been worth less than tbe sum of $1,050, and for which tbe plaintiff has to this day received but tbe sum of $800.

One position assumed by tbe defendants is, that tbe plaintiff, having declared specially upon tbe written contract, be cannot recover upon tbe additional count for tbe value of tbe property delivered, after it bad been made to appear that be bad failed to comply with tbe terms of tbe special contract. \The giving and refusing certain instructions by the court unfavorable to this position of defendants, is assigned as error.

Tbe counsel rely upon tbe ruling of this court, or rather tbe authorities cited by counsel in their briefs, as reported in tbe case of Eyser v. Weisgerber, 2 Iowa, 467, as tending to show tbe incorrectness of this ruling of tbe court.

Tbe court there held that when a party declares specially be must succeed upon bis special case, and cannot recover as upon tbe common counts; that where a party would recover for tbe reasonable value of services rendered or material furnished, upon a special contract, he must either declare in general assumpsit, of unite the common with the special counts. It was for this reason, alone, that the plaintiff had declared specially, and not upon both the special as well as the common counts, that the court held that the plaintiff could not recover on the quantum meruit. In other words, we understand the court, indirectly at least, to sustain the rule as adopted in Britton v. Turner, 6 N. H., 481. If not, however, clearly recognized in this case, it is without doubt in the case of Pixler v. Nichols, 8 Iowa, 106. The plaintiff in this case declares specially upon the contract, and also as upon the common count, for goods sold and delivered, and upon the authority of the above rulings of this court he could recover upon the common count, on the quantum meruit. We however think that the instructions asked by defendant were inapplicable, for the reason that the plaintiff relied upon his special contracts, and the-question was one for the jury whether or not the additional oral contract was made, and if so, whether it was not substantially complied with by plaintiff.

The very fact that the defendants paid the amount due on the bond is strong evidence, to our minds, that the oral contract, as alleged, was made. If it had not been made, the defendants could have complied with their part of the original contract by an assignment and tender of the bond to plaintiff. And if the plaintiff permitted it to be forfeited, it was his loss, not defendants’.

We do not propose to follow further the points assumed by the counsel of appellant. We think the charge of the court fully and clearly presents the law as applicable to the case, to the jury. We see nothing from the whole of the evidence that would justify us in disturbing the verdict, even if it was for a much larger amount. There is some evidence tending to show that the wagons were not, in every respect, finished, and of the best quality, but the defendants accepted of them at the time of their delivery, without complaint. The j ury, however, must have made as large ' deductions for the failure of the plaintiff to comply with the conditions of the contract, both as to the time of delivery, and the character of the work, as the evidence would justify.

Affirmed.