Wire v. Foster

Seevers, J. I. The undisputed evidence shows that the defendant agreed to sell to the plaintiff some corn, then on a xto be^eííve£ non-^feíívery: ' tender.d and ^arm> ^ie market price. The evidence was conflicting as to the quantity of corn, but the plaintiff testified that he purchased three hundred bushels.. No part of the purchase money was paid when the contract was entered into. There was evidence tending to show that the contract price was the market value of corn at Storm Lake. The place of delivery was several miles distant from Storm Lake, and the evidence tended to show that it was worth three or four cents per bushel to haul corn from Storm Lake to the farm. If there was any evidence tending to show the value of com at the place of delivery at the time the tender and demand were made, we have been unable to [116] discover it. Befoi’e the plaintiff could maintain an action for tbe corn, or ratlier before he was entitled to damages because of its non-delivery, it was incumbent on him to tender the contract price and demand the corn. He claims that he did this. But the court in substance instructed the jury 2. —r:-: damages. that, as the contract price was the market price. the plaintiff was not damaged by the defendant’s failure to deliver the corn; and this we understand to be the rule adopted in this state. Boies v. Vincent, 24 Iowa, 387. Counsel for the appellant concedes this, but he insists that the rule is based on the thought that the party can go into the market and purchase at the market price, and that, therefore, he is not damaged; but that the rule does not apply where, as in this case, as the plaintiff claims the evidence tended to show, the quantity of corn contracted for could not be had at the place designated — that is, at Storm Lake. We think this immaterial. The plaintiff was required to tender the contract price before he could maintain an action for damages. If he did this, it necessarily follows that he was not damaged by the failure to deliver the corn, for he was compelled to tender the same amount of money that would be required to go into the market and purchase the corn. While the evidence tended to show that it was worth three or four cents per bushel to transport the corn from Storm Lake to the farm, the evidence, as we have stated, fails to show what corn was wprth at the farm. It may have been worth less than in Storm Lake. But if the plaintiff is entitled to recover the price of hauling, his recovery would be for a 111 bU[JlClIi<5 veisaiíor re" nominal dam-nominal amount, and we have declined to reverse, ' ' "where the error involved no more than nominal damages. Watson v. Van Meter, 43 Iowa, 76. We believe the instruction to be correct, and, for the reasons stated, the court did not err in sustaining the demurrer to the first amendment to the petition. II. The issue as to the hay, with the exception to be [117] presently stated, was fairly submitted to the jury, and on 4¿aüsereview-edastnedbe-suc^ issue they have found for the defendant, yye ¿foem it sufficient to say that we cannot disturb the finding. The first count in the petition seeks to recover for a conversion of the hay, and the fifth count alleges that a portion of the hay was converted to the defendant’s use, and the remainder so left that it was utterly ruined by the storms. Counsel for the appellant say that no answer was filed to the fifth count. If this be so, no default was asked or entered. But we understand the answer to deny each allegation in the petition. The fifth count to the petition was filed after the answer, but it is evident that the parties and the court regarded the answer as putting in issue all the allegations of the pleadings filed by the plaintiff. This question was not raised below, and must be disregarded in this court. Appellant further says that the court failed to instruct the jury as to the issue presented by the fifth count. A portion of the eleventh instruction is as follows: “If you believe that the hay belonged to the plaintiff, and that the defendant converted only a portion of it, but left the balance in such shape that it rotted'and was rendered worthless, then he is liable for the value of the whole stack, although he may have taken only a part of the stack.” It is evident that counsel overlooked this part of the instruction. Affirmed.