Hensen v. Beebe

Given, J.

1 I. It is obvious from the evidence that the defects alleged did not render the works.valueless, and that they were such as might have been readily remedied at a moderate expense by ordinary efforts. In Beymer v. McBride, 31 Iowa, 118, it .is said: “It is a general principle of law in cases of a breach of specific contract that, if the injured party can protect himself from damage, he is bound to do so, if practicable, at a moderate expense, or by ordinary efforts; and he can charge the delinquent party for such expenses and efforts, and have such damages only, as could not be prevented by the exercise of such diligence.” In Simpson v. City of Keokuk, 34 Iowa, 568, it is said: “If the plaintiffs, by use of ordinary diligence and efforts, and at a moderate expense, might have prevented the damage, it seems necessarily to follow that their negligence contributed to the injury; and this, upon a well-settled rule, would defeat the plaintiffs’ recovery.” The evidence shows without conflict that the defendant continued to use these works as they were constructed from June, 1894, until the trial of this ease, in June, 1896, without making any effort to remedy the defects complained of, or to prevent damage to his barn or grain, or loss of time, for which he seeks to recover. Under the rule announced in the cases quoted, the defendant would be required to protect himself from damages within a reasonable time. The court instructed in harmony with the eases cited, but did not define to the jury what is meant by reasonable time. Under the instructions the jury was at liberty'to allow the defendant damages for the. entire two years, when it is beyond dispute that he could have, at moderate expense, and by ordinary effort, remedied the defects and stopped the damage in a much less time. While it was for the jury to determine what would be a reasonable time in which to have remedied the alleged defects, the court should have instructed as to what is meant by reasonable time, and that under the undisputed evidence two years was more than a reasonable time. . While the instruction given correctly stated the law so far as it went, and nothing further was asked by the appellant, still we think the. instruction was misleading to the prejudice of the appellant in that it permitted the jury to consider as a reasonable time that which, as a matter of law, was not reasonable.

2 II. As to the third count, the defendant admits the delivery to him of the corn harvester at the agreed price of one hundred and thirty dollars, but claims that he took it on trial, that it did not work satisfactorily, and that he returned it. The evidence shows without dispute that while he had it he loaned it to one Barber to cut his corn with, and that Barber cut six acres with it. The defendant testifies that he loaned it with the knowledge ‘of the plaintiff, and this the plaintiff denies. Plaintiff asked an instruction as follows, which was refused: “You are instructed that if you find from the evidence that the defendant loaned the corn harvester in question to the witness Barber for use, and that said Barber did use the same, and that such loaning to and use by the said Barber was without the knowledge or consent of the plaintiff, then such loaning to said Barber would constitute an acceptance of said machine by the defendant, and in that case paintiff would be entitled to recover for said machine.” In Frey-Scheckler Co. v. Iowa Brick Co., 104 Iowa, 498, we said: “The general rule is that one who seeks to reject an article as not in accordance with the contract must do nothing after he discovers the true condition inconsistent with the vendor’s ownership of the property. * * * If is liable in this case because it did something, and something that is entirely at war with its claim now made that the title of the property never passed to it under the contract.” The receipt of the goods may become an acceptance if the right of rejection is not exercised within a reasonable time, or if any act is done by the buyer which he would have no right to do unless as owner of the goods. 21 Am. & Eng. Enc. Law, 557, and cases cited. See, also, Palmer v. Banfield, 86 Wis. 441 (56 N. W. Rep. 1090); Brown v. Foster, 108 N. Y. 387 (15 N. E. Rep. 608). Surely, the defendant had no right to loan the harvester without the consent of the plaintiff, unless as owner thereof. We think it was error to refuse this instruction.

Other errors assigned and discussed by the' appellant are not likely to arise on a retrial, and therefore are not further noticed. Eor the errors pointed out, the judgment is REVERSED.