Home Lightning Rod Co. v. Neff

14 N.W. 216, 60 Iowa 138

• Court: Supreme Court of Iowa
• Decided: December 8, 1882
• Status: Published

Opinion

Bothrock, J.

— The appeals are all presented together, and we will proceed to determine them upon questions which are common to all.

Before proceeding to that, however, we deem it proper to say that all of these contracts are conclusively shown by the evidence to have been obtained by a system of base fraud and villainy. The agents of the plaintiff read over to the several defendants what was claimed to be a mere statement to the men with the wagons, so that they would know what to put up, and that the company would have the same to enable them to issue the insurance policy. The instrument was falsely read as to the amount to be paid for the rods, the amount therein named being from three to four times as much as the defendants agreed to pay, and as the agents read from the papers. Some of the defendants were unable to read the order, and all of them relied on the reading of the agent who made the contracts. It is not necessary that we should determine whether or not such of the defendants as could read the papers should have done so.

The plaintiff has made no argument in the case, and until it has some representative here justifying the conduct of these agents and claiming that the defendants are bound by the orders, we perfer to place our decision of the cases upon other grounds which affect all of them alike.

These rods were sold by sample. The sample exhibited was made of copper, which was thick and strong, and as one witness expressed it, more than four times as thick as the rods put upon the buildings. The rods put up are described by the witnesses as about as thick as writing paper, and in some places they are fastened by nails driven through them. They are shown to be not of sufficient strength to withstand the action of the wind, as they are placed upon the buildings. This testimony is not contradicted, and it abundantly shows that the rods are utterly worthless.

Again, the plaintiff pleaded a tender of insurance policies. This was denied, and no proof was offered in support of the averment. The referee correctly found that no recovery could be had without an offer to fully perform the contract upon the part of the plaintiff. And this was the theory of the plaintiff when it amended its petition and averred a tender of the policies. But it failed to make the proof of tender, and for that reason alone there should have been judgment for the defendants for costs. The motion to set aside the report of the referee should have been overruled, and the report should have been approved by a proper decree.

Reversed.