
    Eastern Granite Company, Appellee, v. Agatha Heim et al., Appellant.
    1. Venue: county where contract is to be performed. The right to maintain an action upon a contract in the county where the contract is by its terms to be performed is hot affected by an allegation in the petition excusing complete performance of the contract by the plaintiff because of some default of the defendant.
    2. Sales: representations: fraud. Representations by a vendor which amount to mere words of commendation of the thing sold, though false, do not amount to such fraud as will entitle the vendee to avoid the sale.
    3. -: ACTION FOR PRICE: PERFORMANCE BY VENDOR. A contract for the sale of a monument provided that there should be an inscription on the die, “including four lines of verse,” which were not specified in the contract. Held, that it was the duty of the vendees to furnish such inscription, and that they could not, by refusing to furnish the same, defeat an action for the price. 'In such case the vendor is entitled to recover the purchase price, less the cost-of making the inscription.
    
      i. -: -: -. It being provided in said contract that the inscription should be in German, held, that the vendor was properly permitted to prove that is it usual to use the latin letter in German inscriptions on granite monuments.
    
      
      Appeal from Ceclar Rapids Superior Court. — Hon. John T. Stoneman, Judge.
    Saturday, January 20, 1894.
    Action at law to recover upon a written contract for the erection of a monument in a cemetery. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal.
    
    Affirmed.
    
      Longueville & McCarthy, for. appellants.
    
      Cooper & Crissman, for appellee.
   Rothrock, J.

I. The petition was in three counts. In the first count recovery was demanded for amount due on the written contract; the second count was upon the same cause 0£ p,ut demanded judgment for the sum named in ■ the contract, as “the reasonable price and value of the monument;77 and the third count was on the same cause of action, and judgment was asked therein for damages for the alleged breach of the contract. The written contract, upon which this suit was brought, was in these words:

“Eastern Granite Company, Dealers in Foreign and American Granite. Address': Cedar Rapids, Iowa. Three hundred and ninety dollars. Dubuque, Iowa, May 27, 1890. In consideration of three hundred and ninety dollars and other considerations, I have this day bought of the Eastern Granite Co. a' granite monument from design ‘Hall Draped Urn.7 Material to be of the best quality of Barre granite, of the following dimensions and descriptions: Ground base to be in proportion. Die, l-4xl-4. Total height, eight feet. The other parts of the monument to be in proper proportion, and to be made and finished just like design, Inscription on die: ‘John Heim, born Aug. 1st, 1839; died April 3rd, 1890;? including four lines of verse. Inscriptions all in German. Said work to be erected of first class material, and in workmanlike manner; to include family name in raised letters, on second base, and inscription in sunk letters, on die; and to be delivered and set up on good and sufficient foundation. Said foundation to be put in by Eastern Granite Co., in German Catholic Cemetery, at Dubuque, on or before the fifteenth day of September, 1890, or within a reasonable time thereafter. And, when said monument is erected and set up as above specified, the said Mrs. Heim and son agree to pay to the said Eastern Granite Company, or order, at Cedar Rapids, Iowa, the sum of three hundred and ninety dollars, with ten per cent, interest on same from date of erection till paid; but, at the option of the holder hereof, they may accept, for a part or all of said sum, bankable paper, with ten per cent, interest from date till paid. It is further expressly agreed and understood by and between the parties hereto, and it is hereby made a part of the consideration of this contract, that the title, ownership, and right to possession shall not pass from the holder hereof until this contract is fully paid; and if this contract is not fully paid at maturity, time being the essence of the contract, the holder hereof may, upon canceling and surrendering this contract to the maker, and without' other notice, take possession of and remove said monument from said cemetery. No agreement made by the agent will be recognized by the said company unless reduced to writing, on the face of this contract. No countermands or rescissions will be recognized. John 'Heim, Jr. Agatha Heim. Eastern Granite Company. Per G. Sun-dell, Gen. Agent.”

The defendant presented a motion to the court to strike out the second and third counts of the petition, because the defendants were residents of .Dubuque county, and the said counts could not "be joined with the first count, and the defendants could not be held to answer to the second and third counts in Linn county, as they demanded a judgment for refusal to perform the contract and for damages. The motion was overruled. This is the first ground of objection to the rulings of the court in the trial of the case. The objection demands but very brief consideration. It is possible that the petition was vulnerable to an objection that it set out the cause of action in three counts, when there should have been but one. All three of these counts were founded upon the written contract. The contract expressly provided that the agreed price of the monument should be paid at Cedar Rapids, and, under section 2581 of the Code, action for the price was properly brought in Linn county. The fact that it was alleged in the petition that the defendants failed to furnish or designate the lettering or verse, or a copy thereof, to be inscribed on the monument, in no manner controlled the venue of the action.

II. The defendants, in their answer to the petition, sought to avoid the enforcement of the contract, on the ground that the agent of the plaintiff, who procured the writing to be made, induced the defendants to enter into the same by means of certain false and fraudulent representations, which were set out at length. The defendants complain because the court sustained a motion in behalf of the plaintiff to strike from the answer the alleged fraudulent representations. A careful examination of these averments, in connection with the arguments of counsel, leads us to the conclusion that the ruling of the court was correct. It is unnecessary to set out these alleged fraudulent representations. When all are taken together, they do not constitute such false representations as may be set up as a defense to an action. They are mere words of commendation, or puffing, or what is sometimes called “trade talk.”

III. So far as the record before us shows, the plaintiff erected the monument in all respects as specified in the contract, except inscribing a verse or text thereon. The court permitted the plaintiff to prove that the said inscription was not made because the defendants failed to furnish copy for it; and the jury was instructed that it was the duty of the defendants to furnish the inscription, so that it could be placed on the monument, and that, if the defendants failed or refused to furnish the verse, it was the right of the plaintiff to erect the monument without the inscription, and that, under that state of facts,-the plaintiff would be entitled to recover the contract price, less the cost of inscribing a verse of ordinary length upon the monument.

It is claimed by counsel for appellants that the contract did not make it the duty of the defendants to furnish the inscription. The contract should be construed in a reasonable manner. Of course, the defendants were to determine that question. The plaintiff had no right to do so. And the contract could not be annulled or rescinded by the mere failure to furnish the inscription. The defendants can not be allowed to use their own default as a reason why the contract should not be performed. The evidence on the trial showed that the sum of ten dollars would be full compensation for inscribing an ordinary verse on the monument, and the jury, by their verdict, deducted that amount from the contract price. The defendants claim that the rule adopted by the court is in conflict with the ease of Scale Co. v. Beed, 52 Iowa, 307. The facts of that case involve an entirely different principle, and the case is so clearly distinguishable from this case that we do not think it necessary to consider the question further.

IY. It will be observed that the contract provided that the inscription on the monument should all be in German. That part of the inscription which the plaintiff placed on the granite was in German words, but in the Latin letter. It is claimed that this is notin compliance with the contract; but the court, as we think, correctly permitted the plaintiff to prove that it was usual to use the Latin letter in German inscriptions on granite monuments.

Y. Numerous other objections to rulings of the court are presented in argument, which we do not think of sufficient importance to require separate consideration or special.mention. A full consideration of the whole record shows that the case was fairly tried, and-that, a just result was attained. The whole defense appears to us to be an assault upon a valid contract, which was fully performed by the plaintiff, except in the immaterial matter of part of the inscription, which was not made because the defendants did not furnish the words they desired to be placed upon the monument. The judgment of the superior court is affirmed.  