Goodale v. Hoy

9 N.W. 130, 56 Iowa 242

• Court: Supreme Court of Iowa
• Decided: June 10, 1881
• Status: Published

Opinion

Day, I.

I. The motion and demurrer, we think, were properly sustained. The written contract which furnishes the plaintiff’s action, contains no stipulation against the removal of the property in question from the State. It cannot be maintained that such a removal converts the plaintiff’s claim into a money demand, and gives him at once a right of action for the unpaid price. Nor can it be admitted that the mere failure for a year to make sale of the property furnishes the plaintiff a Tight of action. It is true it is the duty of the defendant, under the contract, to use reasonable diligence to effect sales and procure notes to apply upon the unpaid price. It is jiossible that a failure to exercise reasonable diligence to make sales would render the defendant liable. Rut no such failure is alleged.

II. It is claimed that the court erred in rendering judgment against the plaintiff in the manner set out. The form of judgment is not prejudicial to plaintiff. When a state of facts different from those set out in the petition arises, he may maintain an action thereon.

Affirmed.