
    Holt v. Brown & Co.
    1. Practice: motion to strike out part of petition : error without prejudice. The overruling of a motion to strike out portions of the petition is no ground for reversal, even if erroneous, where the motion did not strike at any vital part of the petition, and the sustaining of the motion could not have henefitted the appellant.
    2. Evidence: erroneous admission of: error without prejudice. The admission of evidence which was immaterial and incompetent is no ground for reversal, where it appears that the evidence so. erroneously admitted could have wrought no prejudice to appellant.
    3. -: statute of frauds: objection too date. The objection, made for the first time in the argument in this court, that certain evidence admitted on the trial was inadmissible under the statute of frauds, which was not pleaded as a defense, comes too late, and cannot he considered.
    4. Sale of Personal Property for Future Delivery: demand: time of delivery. Under a contract of sale of personal property, to be delivered at the option of the buyer on or before a certain date, the buyer has the right to demand the immediate delivery thereof at any time up to that date, hut if no demand is made until after the time stipulated, the seller is entitled to a reasonable time after demand within which to deliver.
    5. -: offer to deliver: what is sufficient: readiness to deliver: disposition of perishable property. Under a contract of sale of personal property for future delivery, an offer in writing expressing a readiness to deliver, made on the part of the seller, is sufficient, under section 2105 of the Code, to hind the buyer, in a case where the buyer denies his obligation to accept the goods under the contract; and it is immaterial in such a case whether the seller has or has not the goods ready for delivery at the time ihe offer is made; nor is he compelled to retain the goods, if of a perishable nature, beyond a reasonable time, in order to have them ready for delivery whenever the buyer may choose to accept them.
    6. Practice in Supreme Court: verdict not disturbed where evidence is conflicting. Where the evidence is conflicting, the refusal of the trial court to grant a new trial, on the ground that the verdict is not sustained by the evidence, will not be disturbed, even in a case where this court has doubts as to the sufficiency of the evidence.
    7. Evidence: parol to enlarge written contract : degree of proof required. Where it is sought in an action at law to enlarge a written contract by a subsequent parol contract, the rule applicable to jury trials prevails, viz., that the issues are to be determined by a preponderance of the evidence; and an instruction to the effect that plaintiff must establish the enlargement of the contract by evidence “clear, satisfactory, and not made up of mere loose and random statements, was as favorable for defendant as he could demand. The rule in equity, where it is sought to show that a deed absolute on its face is in fact a mortgage, and in like cases, is different. See cases cited and distinguished.
    
      Appeal from Clarke Circuit Court.
    
    Wednesday, April 23.
    Action at law; trial by jury; verdict for plaintiff, and defendants appeal.
    
      Melntire Brothers, for appellants.
    
      Sfaiart Bros, and Jolm Chaney, for appellee.
   Seevers, J.

The plaintiff and defendants entered into the following written contract:

“Osceola, Iowa, Dec. 5, 1879.
“Geo. O. Holt has this day sold to S. P. Brown & Oo. ten thousand pounds choice factory butter, at 26 cents per pound, put up in patent tin pails, to be delivered at said Brown & Co.’s option up to the 15th day of January, 1880.”

The plaintiff claims that this contract afterward, during December, 1879, was so changed by.parol as to increase the cpiantity of butter to twenty thousand pounds. Ten thousand pounds of butter was delivered and paid for, and defendants denied having made any other or different contract than that in writing. The plaintiff made in writing what he claims was a sufficient offer of performance on his part, and brought. this action to recover damages sustained by reason of the defendants’ failure to perform on their part.

The defendants denied the material allegations of the petition, and pleaded as a counter-claim that the butter delivered was not choice factory butter, and that they were thereby greatly damaged.

Counsel for tlie apellee insists tbat the abstract is incorrect, and they liave filed an amended abstract. The correctness of this abstract is denied by counsel for appellants, and they insist that we shall examine the transcript and determine which is correct. Instead of so doing, we have concluded to disregard the amended abstract; and in the determination of the case have relied alone on the appellants’ abstract.

I; The defendants filed a motion to strike out certain portions of the jjetition, which it is insisted the court erroneonsly overruled. The motion did not strike at any vital part of the petition. If it had been sustained, the defendants would not have been in auy respect benefited, nor were their rights premotion; besides which, the motion was filed after an amended answer had been filed.

II. It is assigned as error that the court erred in overruling' the motion to suppress the deposition of David, Isaac and George Ejfier, Milton Holt, E. B. Shurer and John H. Myer. The abstract does not contain . . any evidence purporting to have been given by was sustained as to the deposition of George Epler. The only question, therefore, which we can consider is, whether the court should have suppressed the depositions of the two Eplers first above named. Several reasons are assigned in the, motion to suppress, more than one of which are apparently well taken, if true; but we cannot determine whether this is so, because the abstract only contains a single question, and answer thereto, of the examination in chief of Isaac Epler, and which purports to be an answer to a question asked David Epler. Among the grounds stated in the motion to suppress was that the evidence of the witnesses was immaterial, incompetent and irrelevant. This objection the record enables us to determine.

The only evidence stated in the record to have been given by Isaac Epler in the examination in chief is as follows:

“ I am well acquainted with the kind and quality of butter put up by Mark Graly. I never to my knowledge handled butter put up in patent tin pails, and cannot say what effect it would have on said butter from Osceola, Iowa, to Leadville, Colorado. My opinion is it would injure it.” The evidence of David Epler is in substance the same. It should be stated that the defendants were doing business in Leadville, Colorado, and the butter was shipped to that market. That the evidence above set out is immaterial we think must be conceded. Mark Graly is the man who packed or put up plaintiff’s butter, but the witness does not state whether the quality of butter put up by Graly was good or bad. Tliis-evidence could not possibly have affected the defendants jrrejudicially. The witness, also, at the close of his evidence, expresses an opinion which we are unable to see he was qualified as an expert to express. Put we are unable to conclude that this evidence had any effect on the jury prejudicial to any one. It must be remembered that the material questioji was not what the condition of the butter was when it reached Leadville, but was it “choice factory butter” at the place of delivery — Osceola, Iowa.

We have examined the whole evidence with special reference to this question, and are forced to the conclusion that we ought not to reverse this case because of the admission of the evidence above set out.

III. It is suggested in argument that, as the enlargement of the written contract was by parol, it was within the statute of frauds, and, therefore, as we understand, it is Maimed that evidence tending to establish such parol contract was inadmissible. It is exceedingly doubtful .whether the subject-matter of the contract is within the statute. Code, § 3665. But, be this as it may, the statute was not pleaded, and no such objection was made when the evidence was offered, nor is it assigned as error that any of the evidence was inadmissible because the statute required it to be in writing. The first and only time we find the statute of frauds mentioned is in tbe argument of counsel. "VVe therefore'are of the opinion that the objection, conceding it to be well taken, comes too late.

IY. The circuit court correctly construed the written contract, and held that, up to January fifteenth, the defendants bad the option to call for the butter at any time, but when that time had passed without a demand, the plaintiff was entitled to a reasonable time to perform. The defendants did not make any call not claimed, therefore, that plaintiff failed to perform on his part; but it is insisted that he was not ready to perform — that is, to deliver any more butter than he did; and, as he was paid for all he did deliver, he is therefore not entitled to recover.

The court held that an offer in writing expressing a readiness to perform was sufficient, under the Code, § 2105, and that, although the plaintiff may not then have bad butter on hand to perform on his part, yet ho was entitled to recover of the defendants, if they denied the contract, or denied that they had evei, agreed to take any more butter than had been delivered. We think the construction adopted by the court is correct. Up to January fifteenth i: may be conceded that the plaintiff was bound to perform whenever he was called upon; but after that time a demand was required to put him in default, and we think he was entitled to a reasonable time to perform after demand.

After the fifteenth of January there was no time of performance fixed, and we think that either party was entitled to a reasonable time after demand; and such seems to be the general rule. 2 Parsons on Contracts, 660. It is, however, said that section 2105 of the Code does not apply to cases of this kind, but to specific personal property; and it is said that this means certain designated, specific or marked property. We do not think this is the proper construction. At. common law, in order to make a valid tender of either money or'cliattels, tbe thing, whatever it. was, must be personally tendered to the party entitled thereto. Now, the statute dispenses with such personal tender, and provides that a written offer to perform is equivalent to an actual tender. Suppose one owes another .$100; under the statute he may offer to pay that amount of money. It is not essential to the validity of the tender that he must have been bound to deliver certain specific or marked coin or bills, and that he must offer to dedeliver such bills. So here, plaintiff was under á contract to deliver butter. The property was specified, and he might offer to perform by tendering butter — the subject-matter of the contract. We understand the statute to mean that, when there has been a contract entered into in relation to personal property, which may be discharged by a tender of the property, a written offer to perform has the same effect as an actual tender. We therefore think the court did not err in allowing the written offer to perform to be introduced in evidence.

It is further insisted that, when the offer to perform was made, the plaintiff did not have on hand the required amount of butter ready to deliver at any time when the defendants chose to say they were ready to receive it;- that the butter should have been set apart and kept ready for delivery. But it appears from the evidence that butter speedily deteriorates, and that it is what is designated as perishable property. Certainly this kind or class of property should not be set apart and kept until the determination of a lawsuit. If the plaintiff had the butter on hand when lie offered to perform, we think the defendants had<a right to expect that hé would only keep the butter a reasonable time, and that he would sell it on the market' before it had materially deteriorated. This we think the plaintiff was required to do, and that it is immaterial whether he had the butter on hand when the offer to perform was made; for, if the defendants declared they were ready to recieve the butter, the' plaintiff was entitled to a reasonable time to perform after such acceptance, which can only have tbe effect of a demand made by tbe defendants on tbe plaintiff.

V. The court on its own motion propounded certain interrogatories to the jury, the answers to which are entirely consistent with the general verdict. Counsel for the appellants insist, however, that the answers to the , , . , ,. interrogatories and the general verdict are against the weight of the evidence, and also that the verdict is against the instructions of the court. ¥e have, after much reflection, concluded that we cannot interfere in this respect. the close point in our opinion is as to the counterclaim, whether the finding is not against the weight of the evidence. This depends to a large extent upon wliat is “choice factory butter?” that is to say, bow is it made or manufactured? Upon this question the evidence is conflicting, and, while we would have been just as well satisfied if the circuit court bad granted a new trial, we cannot, under the established rule, reverse its judgment.

VI. The court instructed that, in “attempting to enlarge the written contract by parol evidence, the burden is upon the plaintiff, and the evidence offered for this pur 1 pose must be clear and satisfactory, and not made j- - ’ UP mere loose and random statements.” It is insisted that this instruction does not state the law correctly, and that an instruction asked by tbe defendants, that tbe evidence “must be clear, satisfactory and conclusive,” should have been given. In support of this view, several cases ' are cited, among which are Corbit v. Smith, 7 Iowa, 60; Cooper v. Skeel, 14 Id., 578, and Dalby v. Cronkhite, 22 Id., 222. Tbe question in these cases, all of which were in equity, was whether a deed absolute on its face could be shown to be a mortgage by parol evidence, or kindred questions. But it lias been held that tbe rule which prevails in equity is not applicable to trials by jury. McAnnulty v. Seick, 59 Iowa, 586. In such actions, tbe rule is that the issue must be determined by a preponderance of the evidence. Tbe instruction given is fully as favorable as tbe defendant was entitled to.

AFFIRMED.  