It seems to me that, after drawing all permissible inferences from the plaintiffs' evidence, there is not enough to sustain the judgment. At the most it seems that McClernan told Kirby, if the machinery were returned, the case would be dismissed. The promise to forbear was conditioned expressly upon the return of the machinery. Special comment upon the uncertain, indefinite, nature of the promise, if it was such, need not be made. The place to which the machinery was to be returned was not agreed upon. Kirby did not know where Hoeh wanted it delivered, nor did McClernan, who said he would ask Hoeh about it; but he did not say that he would convey the information to Kirby or to Kirby's agent Carroll. Kirby did not seek any further information from McClernan on the subject; he did not even ask McClernan to communicate with him again. The service of summons on the very next day after the conversation did not make any impression upon him. *Page 229 It does not appear that he left this state during the period in question here.
Ordinary prudence and diligence required Kirby to ascertain the place of delivery if he intended to return the machinery, and do so with reasonable celerity. The obligation was upon Kirby, if he in fact intended in good faith to return the property, to go to McClernan for further information; it was not incumbent upon McClernan to hunt up Kirby to impart the information. The record does not indicate that McClernan intended any deceit, and, if plaintiffs were deceived, it was because of their failure to do what an ordinarily prudent person would have done.
But what is of greater concern is the tendency to extend the application of the doctrine of Bullard v. Zimmerman. That case was decided correctly, but it reaches the limit. The equities in favor of plaintiffs here are much weaker than they were in plaintiff's favor in that case. The precedent now to be established will prove unfortunate.