No express agree

motive. Griffith v. Hodges, ment was made in this case. The acts relied upon as evincing the agreement were the acceptance of the keys by the plaintiff, and the leasing of the property to another tenant. But the plaintiff insists that these acts are insufficient because, after the premises were vacated and the keys left with him, he could not properly refuse to receive the keys and take charge of the property, and lease it to another person for the Lest rent which he could obtain, so as to diminish the damages which he would otherwise sustain. There is much force in this position. What the inference would be from the mere receipt of the keys and the leasing of the premises by the landlord to another person, we need not determine.

There is a circumstance in this case which we deem of controlling importance. The plaintiff, at the time of the alleged surrender, had brought this action to secure the payment of the rent yet to accrue. He had brought it in view of an apprehended abandonment, and the fact that the rent called for by the lease was greater than the actual rental value; yet not a word was said about dismissing the action, or discharging the lessee from the claim made in the action. In our opinion no discharge was agreed upon, and the defendant Stearns remained liable.

2. But the defendants Smith and Crittenden insist that even if this be so the plaintiff had no lien upon the goods in question. Their position is that as the rent was made payable monthly in advance, and was kept so paid until the commencement of the action, the plaintiff had no claim for rent at that time, and consequently no lien for rent. The question presented involves a construction of section 2017 of the Code, which is in these words: "A landlord shall have a lien for his rent upon all crops grown upon the demised premises, and upon any other personal property of the tenant which has been used on the premises during the term, and not exempt from execution, for a period of one year after a year's rent, or the rent of a shorter period claimed, falls due; but such liens shall not in any case continue more than six months after the expiration of the term.' The plaintiff insists that under this statute he acquired a lien for the rent of the entire term, and that the lien for the whole of such rent attached from the commencement of the lease upon all property of the tenant then on the premises, and upon all other property of the tenant afterwards brought upon the premises, commencing as soon as it was brought. In support of this construction he

relies upon Grout v. Whitwell, 9 Iowa, 125; Carpenter v. Gillespie, 10 Iowa, 592; and Garner v. Cutting, 32 Iowa, 547. This position we believe to be correct. Counsel for appellees endeavor to distinguish the case at bar from those just cited, but it seems to us they determine the very question under discussion. It is urged that in the cases cited the attempted fraudulent disposition of the property by the tenant was an important consideration. consideration. We do not so understand the opinions in those cases. In Grant v. Whitwell et al. it is distinctly held that the statute gives to the landlord a security for his "rent as such and beforehand, his rentage as it may fall due, and not merely for a debt now due." This construction of the statute was followed in Carpenter v. Gillespie; and in Garner v. Cutting the court, upon a full discussion of the previous cases, adhered to the rule that the lien exists not only for rent due, but for what may become due during the term. Now, the disposition of the property by the tenant, as shown in this case, while it may not have been with any actual fraudulent intent upon the part of the tenant, yet it destroyed the security which the law gives the landlord for his rent, and in this sense defrauded him of his statutory lien. In short, if the right to the lien for rent not yet due be conceded, it follows that the landlord should, by proper proceedings, be enabled to prevent such a disposition of the property as would make the security worthless. We are united in the opinion that the case at bar cannot be distinguished from the cases cited.

3. It is insisted that the cases of Grant v. Whitwell, Carpenter v. Gillespie, and Garner v. Cutting should be overruled, because the construction of the statute adopted in these cases is erroneous and unsound. It is not necessary to enter upon a discussion of that question here. It is enough to say that a majority of the court are of the opinion that no sufficient reason exists for changing a rule which has been so long established. The section of the statute in question is a literal copy of section 2302 of the Revision of 1860, and of section 1270 of the Code of 1851.

The case of Grant v. Whitwell et al. was decided in 1859, under the Code of 1851. The case of Garner v. Cutting was determined in 1871, under the Revision of 1860. Notwithstanding the construction placed upon the statute by these cases, the general assembly have twice re-enacted the statute without change or amendment. Under these circumstances, and in view of the fact that leases now in existence, includ

ing the one in controversy, have presumably been made in reliance upon the law as it now is, we do not think a change of the rule should be a question to be entertained by this. court. For the error in holding that there was a surrender of the lease the decree of the court below must be reversed.

Mr. Justice DAY and Mr. Justice ADAMS dissent, upon the grounds expressed in the dissenting opinion of Mr. Justice DAY in Garner v. Cutting, above cited.

MOLINE SCALE COMPANY, Appellant, vs. W. G. BEED, Appellee.. Filed October 28, 1879.

Defendant gave plaintiff's agent a written order for a certain scale to be built for him, he to do certain work and furnish certain material therefor. The same day he telegraphed plaintiff countermanding the order, and also wrote both plaintiff and his agent to the same effect. Held, that plaintiff was not entitled, upon showing performance as far as lay in its power, to recover in an action the contract price agreed upon.-[Ed.

Appeal from Franklin circuit court.

On the fourth day of April, 1877, at Hampton, Franklin county, the defendant executed and delivered to an agent of the plaintiff an instrument in writing of which the following is a copy: "Victor Scale Company: Please send me from Moline one four-ton scale and beam box, and one number seven dormant scale, with drop lever-four-ton scale to have double brass beam-marked to W. G. Beed, Hampton, Iowa, via Ackley; for which I agree to pay one hundred and twentyseven and fifty one-hundredth dollars when the scale is built, as follows: Cash, $127.50. And it is agreed that you do not part with nor relinquish your claim on or title to said scale until it is fully paid for, and in default of payment for the scale as agreed you or your agent may, without process of law, take possession of and remove said scale and collect reasonable charges for the use of same; scale warranted durable and accurate; to be built by Moline Scale Company soon as possible. If the purchaser delays having scale built thirty days after time set for building, then this order shall become due and payable the same as if the scale had been built at the time stated. The purchaser agrees to pay freight, furnish lumber, dig the pit, put in foundation, board the builder,. and take him back to the station. WILLIAM G. BEED."

Immediately after taking the order the agent left the town, and on the same day the defendant telegraphed to the plaintiff at Moline, Illinois, countermanding the order and direct-ing that the scales be not shipped. The telegram was duly

received by the scale company on the same day, and before it had any knowledge that the order had been made. At the same time the defendant wrote a letter to the plaintiff stating that he did not want the scales sent to him, as he had made other arrangements. He also wrote a letter to the agent who had taken the order, stating that he had countermanded the same. These letters were received by due course. of mail.

On the sixth day of April, 1877, the scale company wrote a letter to the defendant, in reply to the telegram, stating that the shipment of the scale would be held until the tenth of that month, for a letter in explanation of the telegram. On the tenth of April the plaintiff shipped a set of scales from Moline, Illinois, to the defendant, at Hampton, which the defendant refused to receive, and refused to pay the freight thereon, and the same still remain at the freight depot at Hampton. This action was brought to recover $127.50, the amount named in the written order as the price of the scales. The defendant admitted the execution of the order, and set up the foregoing facts in defence. There was a trial by the court, a jury having been waived. The court found for the defendant, and rendered a judgment against plaintiff for costs. Plaintiff appeals.

King & Henly, for appellant.

McKinzie & Hemingway, for appellee.

ROTHROCK, J. At the time the plaintiff received the telegram countermanding the order no act had been done by which the scales in question were set apart as the property of the defendant. The evidence shows that "the scales, so far as the iron work could be done, were all perfect." By this we understand that the plaintiff had on hand the iron work of scales such as are described in the order. The single question to be determined is, had the plaintiff the right to select the iron work of the scales after the order was countermanded, and, by shipping to Hampton and offering to build them, maintain an action against the defendant, not for the difference between the contract price and the actual value, but for the amount named in the contract as the price to be paid? The plaintiff must recover, if at all, upon the case made in the pleadings, and recovery is sought upon the theory that, by shipping the scales and offering to build them, the plaintiff is entitled to a judgment for the contract price. We are of the opinion that the action cannot be maintained. It will be observed that the contract was for scales to be built by v3—7 (no. i)

(97)

the plaintiff. It is true the plaintiff had on hand the necessary iron work, already to be set up, but this, without more, is not the property named in the order.

The iron work was to be shipped and the scales built-that is, the frame and platform were to be constructed-for which defendant was to furnish the lumber. Suppose a person should contract with a manufacturer for a wagon to be built, and agree to furnish the iron, and the manufacturer should have all the necessary wood work on hand, ready to be set up and iron, and, before anything was done, the order should be countermanded; we think the manufacturer could not recover the contract price by setting apart the wood work and calling upon the other party to furnish the iron. This is exactly parallel with the case at bar. Both are contracts with manufacturers to build or manufacture an article not yet completed or built. We have been cited to no adjudicated case, and are unable to find any, where it has been held that a vendor can recover the contract price, unless the contract be such as to enable him to put the article sold in such condition as to transfer the title of the property to the vendee. What the law aims to do, in case of a breach of contract, is to make the parties whole by awarding damages equal to the injury. In this case, if the plaintiff should recover the contract price, it will receive more than compensation for the injury. The full contract price would be recovered for the scales without building them. In Bennett v. Smith, 15 Wend. 493, the plaintiff built a sulky for the defendant, according to an agreement, tendered it to him, and, on his refusal to accept it, deposited it with a third person on his account, giving the defendant notice of the deposit, and brought an action of assumpsit. It was held that the plaintiff was entitled to recover the contract price. That case is essentially different from the case at bar. The plaintiff had done every act to be done by him to the property, and it was ready for delivery, and was actually tendered. In the case at bar the plaintiff's obligation could not be discharged without building the scales. We think that, in all the cases where it is held that the contract price may be recovered, it will be found that the article sold was completed and ready for delivery, and a tender made. Gordon v. Norris, 49 N. H. 376; Duston v. McAndrew, 44 N. Y. 72.

Upon the other hand, there are cases which hold that where there is a refusal by the vendee to perform the contract by receiving the property purchased, the measure of damages