McCormick Harvesting Machine Co. v. Markert

Waterman, J. 1 Defendant demurred to the petition on the ground that the facts stated therein disclosed that the action was cognizable at law, and not in equity. This demurrer was overruled, as we think, properly. The question presented could not be raised by demurrer. Bibbins v. Clark, 90 Iowa, 230, 241. 2 II. After the ruling on demurrer, defendant filed an answer, and thereafter a motion to transfer the cause to the law docket. The motion was overruled. We think the court erred .in this ruling. That this is a law action, pure and simple, needs no argument to show; and we know of no reason for saying that the motion was not made in time, under section 2519, Code 1873. The cause being properly cognizable at law, defendant was entitled to a jury trial, if he chose to demand it; and the action of the court in retaining and trying it as an equitable proceeding afforded just ground for exception. Watson v. Batholomew, 106 Iowa, 576. 3 4 III. It remains to be seen whether there was any question in this case for a jury to pass upon. If the issues were such that the court would have had to try them in any event, the error committed was without prejudice. The order given by defendant for' the machine was in writing, and it was absolute in terms. The defense is that it was conditional; that" defendant countermanded it, and that it was never accepted by plaintiff, or, if so, that defendant was never notified of such acceptance; and that no particular machine was ever set apart or tendered to defendant. Under the well-known rule, parol evidence was inadmissible to' show that the order was conditional, and this was the only evidence offered. [343] The rule is not different in case of a written order which is accepted orally. Hooker v. Hyde, 61 Wis. 204 (21 N. W. Rep. 52). The order was taken by one McNaughton, an agent of plaintiff. Some time after, defendant went to Manson, and notified one Kenning, who was plaintiff’s local agent at that point, that he wished the order returned to him, and Kenning responded that he would try and get it. Nothing was ever said or written to plaintiff on the subject. This did not amount to a countermand of the order. 5 IV. Again, it is said that the order was not accepted by plaintiff, or that defendant was not notified of such fact. It was enough that plaintiff filled the order within the specified time. .No other acceptance or notice was necesary. Muscatine Water Co. v. Muscatine Lumber Co., 85 Iowa, 112; Griffin v. Bristle, 39 Minn. 456 (40 N. W. Rep. 523). 6 V. Further, it is said that no particular machine was ever tendered to defendant. Inasmuch as he refused to recognize the contract or receive any machine under it, no specific tender was necessary. Williams v. Triplett, 3 Iowa, 518. It will be seen from what has been said that every issue presented by the pleadings resolves itself, under the undisputed evidence, into a question of law, which in any forum would have had to be determined by the court. The defendant was therefore in no way prejudiced by the court’s refusal to transfer the cause to the law docket. 7 VI. Finally, defendant complains of the damages awarded. The trial court gave judgment for the price of the machine, with interest. This we think was correct. The rule in cases of this kind is stated in Scale Co. v. Beed, 52 Iowa, 307, as follows: “When everything has been done by the vendor which he is required by his contract to do, and the manufactured property, in its completed condition, is tendered to the purchaser, and he refuses to receive it, and it is held by the vendor for the [344] purchaser, the vendor may recover, the contract price. The result of the judgment in such cases would be to vest in the purchaser the title to the property.” See, also, McAllister v. Safley, 65 Iowa, 719. The judgment of the district court is AFFIRMED.