193 Iowa 528 | Iowa | 1922
— I. On July 10, 1919, the plaintiff and wife entered into a written contract with the defendant E. A. Sinn, by the terms of which plaintiff undertook to sell to said defendant a certain farm in Story County, Iowa, for the sum of $53,600, to be paid as follows: $1,500 on the execution of the writing, $25,100 on March 1, 1920, and the further sum of $27,000 in 10 years from March 1, 1920, with annual interest at 5 per cent, secured by mortgage on the property. Conveyance was to be made March 1, 1920. Later, on July 19, 1920, plaintiff, claiming to have been defrauded in the transaction, served written notice of rescission of sale upon Sinn, and tendered to him a return of the check given him for the down payment of $1,500. Thereafter, on August 4, 1919, plaintiff instituted this action to rescind and cancel the contract, naming as defendant the said E. A. Sinn, together with S. B. Lee, Ollie Briley, and John Hill. Stated as briefly as practicable, the alleged ground for such relief is that, in said deal, the defendant Lee undertook to act as the plaintiff’s agent, and to protect and care for the plaintiff’s interests therein, and plaintiff relied upon him for that purpose; but that said Lee, in violation of his duty to plaintiff, was in fact acting in the interest of Sinn, and did by his misrepresentations and untrue statements deceive and mislead the plaintiff into selling the land for materially less than it was worth, and did aid and abet the defendant Sinn in obtaining an unconscionable advantage over the plaintiff. The petition also charges that Lee was, in fact, secretly interested as a principal or associate with Sinn in said purchase. The defendants Sinn and Briley answer, admitting the making of the contract sought to be rescinded, and deny all-charges of fraud. By cross-petition, Sinn alleges that, on March 1, .1920, he was ready, able, and willing to complete the purchase of the land on
After hearing the evidence offered, the trial court found for the defendants, and sustained the cross-action by Sinn for specific performance, and ordered that plaintiff and wife should, within 30 days, and upon a tender of performance by Sinn, convey the land to him by warranty deed. It was further ordered that plaintiff should transfer, assign, and deliver to Sinn the rental of the property for the year 1920, and that performance on the part of Sinn should consist of tendering to plaintiff his promissory note, due March 1, 1930, for $27,000, bearing 5 per cent interest, payable annually from date of tender, with optional payments of $1,000 or multiple thereof on any interest day, and also a first mortgage on the property, to secure such payment. Said Sinn was also required to tender in payment the sum of $25,100 in cash, together with the further sum of $1,500, if plaintiff should surrender the cheek given him for that sum. It was still further ordered and adjudged that, if plaintiffs neglect and refuse to make the conveyance of the land and assignment of the rental for the year 1920, as ordered in the decree, “there shall be entered at the next term of said court a judgment against plaintiffs for the difference between $335 per acre for the land in controversy and the value or price of $400 per acre, or the aggregate sum of $10,400,” in favor of the defendant Sinn. The foregoing decree was entered of record on August 19, 1920, and plaintiffs perfected an appeal therefrom on September 20, 1920. On the same day, the defendants filed a motion for judgment against plaintiff for the recovery of $10,400, pursuant to the provision embodied in the decree directing the same in the event of plaintiff’s failure to perform the contract to convey the land. This motion was sustained and, the judgment demanded having been entered, plaintiffs have also appealed therefrom.
While there is much in the record justifying a suspicion that the defendants together organized a-“drive” by which to “rush” the plaintiff and secure the purchase of his farm at a price which, in the piping times of the Iowa land boom of 1919, would insure them a handsome profit, there is lack of definiteness in the evidence of such fraud or undue advantage as would justify the court in ordering a rescission of the contract; and without extending our opinion for a discussion of the facts, we think it must be said that the trial court did not err in holding that specific performance might be enforced; although, had the appellee not waived such performance by electing to take judgment for damages, we should feel compelled to modify the terms thereof in several respects.
“Real value” is defined by the Kentucky court as the market value at a sale “under ordinary, normal conditions, unaffected by any combination of producers or dealers whose object
In State v. Parsons, 109 Mo. App. 432, 440 (84 S. W. 1019), market value is said to be actual money value, and “is established when other property of the same kind has been the subject of purchase or sale to so great an extent, and in so many instances, that the value becomes fixed. ’ ’ To the same purport is Sloan v. Baird, 162 N. Y. 327 (56 N. E. 752). Actual value has been frequently defined as the fair and reasonable cash price for which the property can be sold in the market. Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329 (18 N. E. 804). In Tedens v. Sanitary District, 149 Ill. 87 (36 N. E. 1033), the same court sustained an instruction to the jury that, in fixing the value of property, they were not “to consider the price that property would sell 'for under special or extraordinary circumstances, but its fair cash market value, if sold in the market under ordinary circumstances. ’ ’
There is in this case but very slight evidence of the actual value of the property in question, as defined by the authorities. It is true that some witnesses appear to estimate the value at $400 per acre. Appellee himself put a value of but $390 per acre, in his alleged sale to Hill. The defendant Briley, in a conversation with a witness on July 19th, placed upon it a value of $380 per acre. Lee testifies' that, at the time this contract was entered into, there had been no sales as high as $400 of lands so far from town as this was. On July 2d, Hill had bought a farm immediately adjoining the plaintiff’s for $325 an acre, and on about the same day, he sold it for $366 per acre; and a short time before, he had sold another in the same neighborhood for $325 an acre. Briley testifies that it was his opinion, when Sinn went to Waterloo to buy the farm, that it ought to be bought under $350 an acre. There was testimony also of sales of other lands, at greater or less distance, for $400 or more per acre. Of the alleged sale by Sinn to Hill, we think it may be said that it was merely colorable, and not a sale in fact. The plaintiff had served a notice on Sinn and Lee of his rescission