Hunt v. Winkel et al.
1. Practice: contract: pleading. A party who seeks to recover on a contract must bring himself' within its terms.
Appeal from Kossuth Circuit Court.
Thursday, April 7.
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 contract, and in the event *624of failure to pay any of said installments the machine was to be returned to defendants, and plaintiff was to forfeit the amount paid, which was to be retained by defendants as hire for the use of the machine. It further appears from the petition that the last installment was unpaid at the commencement of the suit, and that no tender thereof was made by the plaintiff. There was a demurrer to the petition upon the ground that it failed to show that plaintiff paid or had tendered the amount due under the contract, and that the petition showed that the right to the possession of said machine was in the defendants until the same should be fully paid for. The demurrer c was overruled. The defendants elected to stand on their demurrer, and they appeal.
George E. Ola/rlte, for appellant.
F. M. Taylor, for appellee.
Rothrook, 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.