167 Iowa 652 | Iowa | 1914
On October 2nd, 1909, plaintiff, who was then the owner of a tract of land in Spink county, S. D., entered into a written contract with defendant to sell it to him on the following, among other, terms and conditions:
The land subject to a mortgage of $2,000, five hundred dollars ($500) in hand paid, receipt of which is hereby acknowledged, and the balance due to be paid March 1, 1910; the price of the land fifty-two dollars and fifty cents ($52.50) per acre. The said Martha E. Acord furnishing a good and sufficient abstract of title and conveying by warranty deed. Taxes for the year 1909 to be paid by the said Martha E. Acord. Possession to be given March 1, 1910.
Dated October 2, 1909.
Time of payment was by oral agreement extended, and the plaintiff, with her attorney, met the defendant’s attorney at the latter’s office in Council Bluffs, Iowa, to close the deal. The original contract was not taken to this meeting place, but defendant had sent to his attorney ■ drafts for $2,050 and a $1,900 note, secured by mortgage upon the land. At this meeting plaintiff insisted that defendant was to pay her $8,400 for the land, and it also appears that defendant had not sent enough money to pay for the land on that basis. His attorney did not have the contract, and refused to give his check for the $158, which it was claimed was necessary to make up the purchase price. In lieu thereof he did, however, give to plaintiff the following written statement or agreement:
This is to show that C. ~W. Mitchell owes Mrs. Acord $158, provided the interest is figured correctly, on a land contract, Sec. 4 — 117—63, Spink county, South Dakota, and
[Signed] C. W. Mitchell,
Jan. 1, 1912. By W. E. Mitchell.
A deed, was then executed to the defendant for the land,, which contained the following, among other, recitals:
The said party of the first part, for and in consideration of the sum of eight thousand four hundred dollars ($8,400) to her in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey, unto the said party of the second part, and to his heirs and assigns, forever, all that certain piece or parcel of land situated in the county of Spink, and state of South Dakota, described as follows, to wit: Lots three (3) and four (4) and the south one-half (%) of the N. W. quarter (*4) of section four (4), in township one hundred and seventeen (117) north, of range sixty-three (63) west of the fifth (5) P. M. The said tract containing one hundred fifty-six and ninety-two hundredths (156.92) acres, more or less, according" to the United States government survey thereof. . . . The same are free from all incumbrances whatsoever, excepting one mortgage of two thousand dollars ($2,000) to H. E. Garber by Martha E. Acord.
Thereafter plaintiff made draft on defendant for the $158, and payment was refused. This action followed to recover that amount as the balance due on the purchase price, and upon the written statement of date January 1, 1912. Defendant alleged that he purchased the land by the acre at the agreed price of $52.50 per acre, and that he received but 156.92 acres, there being a shortage in the tract, and that he has paid the full purchase price. He further alleged that the written statement of January 1, 1912, was a mere estimate, and not a promise to pay, and that in any event it was based upon a mistake as to the terms of the original contract and as to the number of acres in the tract; it being assumed by
No error appears, and the judgment must be, and it is,— Affirmed.
