Padden v. Marsh

Cole, J. After the evidence was closed the court gave to the jury, among others, the following instruction. “ If you find, from the evidence, that the defendant notified plaintiff that the defendant would not receive the machine back, in case the same was delivered at Decorah, this will be sufficient execuse, on the part of plaintiff, for a failure to so deliver the same.” The giving of this instruction is assigned as error. The jury, among other special findings, found that “ the plaintiff offered to return the machine to Decorah, and the defendant declared that he would not receive it at all; ” and that “ according to the instructions of the court, the defendant’s, declaration was a waiver of a return and a refusal to receive it, if returned.” "We think the instruction is correct; if the defendant told the plaintiff that he would not receive the machine back, in case it was delivered at Decorah, this surely ought to excuse plaintiff from so delivering it. The delivery would be useless, and the law does not require useless or unnecessary things. Such declaration was manifestly a waiver of the plaintiff’s obligation to deliver the machine. It was equivalent to saying to plaintiff, you need not deliver the machine at Decorah, for I will not receive it if [524] you do; I deny your right to rescind the contract and recover' the money, even if you do deliver it there. I do not rest it upon your non-delivery. That it amounted to a waiver has been frequently decided. Williams v. Bank U. S., 2 Peters, 96; Buford v. Funk, 4 G. Greene, 493; Attix et al. v. Pelan, 5 Iowa, 337; Hall v. Ætna Manfg. Co., 30 id. 215. A waiver of the delivery of property is quite a different thing from a sufficient tender of the property. Bamberger et al. v. Greiner, 18 Iowa, 477; Gammar v. Borgain,, 27 id. 369; McCoy v. Julien, 15 id. 372; Hamel v. Tower, 14 id. 530. The only other error assigned is, that the verdict is contrary to the evidence. But it is not contrary to the evidence giVen by the plaintiff. Affirmed.