Hunt v. Winkel
Supreme Court of Iowa
Appeal from Kossuth Circuit Court. Action of replevin to recover possession of a sewing-machine. It appears from the averments of the petition, and from a written contract which is exhibited with and made a part of the petition, that plaintiff received from the defendants the sewing-machine in question, upon which he paid eighteen dollars, and promised to pay the sums of five dollars and seven dollars, at stated times.
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Appeal from Kossuth Circuit Court. Action of replevin to recover possession of a sewing-machine. It appears from the averments of the petition, and from a written contract which is exhibited with and made a part of the petition, that plaintiff received from the defendants the sewing-machine in question, upon which he paid eighteen dollars, and promised to pay the sums of five dollars and seven dollars, at stated times. The written instrument especially provided that the title, ownership and right of possession to said machine should not pass from the defendants until full compliance with the…
1Opinion of the CourtRothrook, J.
r vbactice : pleading.' The plaintiff does not complain that the written agreement in question is unconscionable, nor that it is in any respect illegal and not binding upon him. Upon the contrary he bases his right to the possession of the machine upon the contract. By its terms he had not the right of possession, and could maintain no action therefor without a tender of the amount due thei’eon. Having failed to allege such tender, the demurrer to the petition should have been sustained.
Reversed.
2Cited by2 opinions
- Smith v. RussellSupreme Court of Iowa · 1937
- Hill v. RolfsemaSupreme Court of Iowa · 1939