Lunn v. Guthrie

Waterman, J. We cannot undertake to follow counsel for appellants in their discussion of the case. Their voluminous argument treats the subject in such detail that we should have to extend this opinion to an undue length, were wo to take up the propositions discussed, and give attention to the reasons assigned and authorities cited in support of their various positions. Let us first consider and settle some general rules. [504] As no fraud is charged, plaintiff has no right of action against defendants, who were her agents, if, as between her :and King, she was bound by the contract with him when this action was brought. In effect, this was the theory adopted by the trial court in its charge. Now, what were her rights, as against King, when she •discovered the consideration was not what she had bargained for? She could affirm or ratify what her agents had done, or she could rescind. To rescind the contract, she would have to return or offer to return what she had received under 'it. National Impr. & Construction Co. v. Maiken, 103 Iowa, 118; Eadie v. Ashbaugh, 44 Iowa, 519. This tender should be made at the place where the property was re•ceived. In such a case the tender must be pleaded, or an offer of return made in the petition, as it is an essential -element of plaintiff’s case. McCorkell v. Karhoff, 90 Iowa, 545. There is no allegation in the petition that plaintiff [505] ever sought to rescind the contract with King. We have; then,, this situation. Plaintiff received and still retains the consideration taken from King. In this action against her agents who made the contract with King, the trial court instructed as follows: “The burden is upon defendant to show by a preponderance of evidence * * * that plaintiff received, accepted, and retained the-securities taken in her behalf for several months.” We do-not think the burden rested where,this instruction places'it. To make her case against defendants, plaintiff ivas obliged to prove such facts as would have enabled her to-rescind as against King. By failing seasonably to object to their acts, plaintiff would relieve defendants from liability. Pickett v. Pearsons, 11 Vt. 470; Darling v. Albert (Com. Pl.) 17 N. Y. Supp. 358; Manufacturing Co. v. Starks, 4 Mason, 296 (Fed. Cas. No. 11,802) ; Menkens v. Watson, 27 Mo. 163. 4 The language of the charge which we have now under consideration is open to further criticism. Appellants may justly complain of the term “several months,” as here used. While very indefinite, it signifies more than two months; and we are aware of no rule that would require the retention of the consideration by plaintiff for that length of time, in order to amount to a ratification. Retention, with knowledge, for more than a reasonable time, is enough; and it is for the jury to say what time is reasonable. Minnesota Linseed Oil Co. v. Montague, 65 Iowa, 67. True it is that in defining the word “acceptance,” in another instruction the court says it Avas plaintiff’s duty to examine the securities she received within a reasonable time, and, if she was not willing to accept them, it was her duty' to return or offer to- return them. . And the jury are told they must determine what is a reasonable time from the evidence. But taking the Avhole charge together, the jury may well have understood that, while they were to fix AA’hat time was reasonable, they must accept any period as [506] being such ¿that was within the limit of “several months.” In other words, only a lapse of “several months” would ■exceed a reasonable time. •5 II. The trial court properly instructed that the mortgage placed by King on-the premises received from plaintiff was for more than $1,500, which was the utmost amount, according to plaintiff, that the mortgage given her was to be subject to. The King mortgage expressly stated that it was for the sum of $2,700. It was made to a building and loan association, and recites that it was given for an advance of $1,500. Doubtless the .•amount of $2,700 includes future interest, dues, and premiums; but this does not make it similar, as appellant •claims, to an ordinary mortgage, in which interest to maturity is added to the principal. Something more is added here, viz., dues and premiums. Just what these would •amount to at any particular date, we have no means of knowing; but certainly they caused the amount due to exceed $1,500, exclusive of future interest. III. The undisputed evidence shows that McConnell was not, in the transaction with King, an agent of plaintiff, and the trial court properly so instructed. 6 IV. A more specific instruction as to the measure of plaintiff’s damages, and announcing a different rule, should have been given. According to her claim, she was to receive as security a mortgage on the property she conveyed, subject to a prior mortgage for $1,500 to be made by King, and a first mortgage on the latter’s grading outfit. She was given, in fact, a mortgage on the property she conveyed, but it was subject to a prior incumbrance of $2,700; and, instead of getting the grading outfit as security, she was given a mortgage on a lot of little or no value. Plaintiff received what she bargained for, except as relates to the security for the notes of $540 and $190; being a total of $730, with interest. The measure of her [507] damages would be the difference in value of tbe security contracted for and that given, — not exceeding, however, $730. Other than in the particulars mentioned, the record discloses no error. Nor the reasons pointed out, the judgment is reversed-