Grimes v. Simpson Centenary College , 48 Iowa 208 ( 1878 )

Adams, J.

s. contract : principal and agent The defendant asked the court to instruct the jury that if the order was drawn by Eeichard upon the defendant’s treasurer for the money sued for, and the plaintiff received the order with the indorsement shown thereon, and has ever since held the same, he could not recover until Reichard had completed the building under his contract with the defendant, as in the indorsement upon such order provided. The court refused to so instruct, and the refusal is assigned as error.

Conceding that the original contract contained a promise to pay the laborers unconditionally and immediately, no names of payees nor sums as due to each being designated, it was competent, of course, for the plaintiff to waive the benefit of such promise in consideration of a promise to pay him specifically a specified sum, even though the payment was deferred and made conditional.- As to whether the plaintiff was wise in doing so is a matter with which we are not concerned. We do not, indeed, understand the counsel for plaintiff as strenuously insisting that the order and acceptance thereon received and held by plaintiff would not express the contract between the parties if such' order and acceptance are in force. But they seem to rely mainly upon showing that they are not in force. They claim that the plaintiff was induced to receive the order so accepted by the defendant’s fraud. We come, then, to consider whether the defendant was guilty of fraud. The fraud, if any, was perpetrated by Griffith, and in the use of the words which we have set out 'in the statement of facts as testified to by Grimes. Griffith, it is claimed, put a false and fraudulent construction upon the acceptance which had been indorsed upon the order. The plaintiff claims that he understood from what Griffith said that the money would be payable in the spring. But it is impossible to suppose that he was made to believe that the terms of the acceptance made the money payable in the spring. He had full knowl-' edge of what the acceptance was, and he cannot be allowed to say that he was led by Griffith to put a meaning upon the words used, of which they are by no possibility susceptible. The fact doubtless is that he relied upon what Griffith said as an agreement outside of the acceptance. His counsel speak of him in their argument as “ an humble stone mason, unaccustomed to interpreting written contracts, unfamiliar with the rules and customs regulating commercial paper, and dealing with a religious corporation represented by a man of ability and experience. ” If this is so, it is easy to believe that he attached more importance to what Griffith said than to the terms of the acceptance; but we are not- allowed to sustain him in such reliance, nor can we hold a promise, unperformed, without something more, to be fraudulent. We think the instruction asked should have been given.

Beversed.