194 Iowa 708 | Iowa | 1922
I. The contract of sale was entered into on March 11, 1920, whereby the plaintiff purported to sell to the defendant a certain 85 acres of ground, for a consideration of $9,000. This consideration was to be paid as follows : $1,000 at the time of the execution of the agreement; $250 April 1, 1920: $250 September 1, 1920; $1,000 March 1, 1921; and $6,500 by assuming an existing first mortgage of $5,000, due March 1, 1922, and an existing second mortgage of $1,500, due March 1, 1921. Possession of the premises was to be given to the defendant on March 1, 1921.
The defense of failure of consideration is predicated upon these facts: That the mortgages of $5,000 and $1,500 which are described in the contract as not becoming due until March, 1922, and March, 1921, respectively, were already past due and subject to suit; that foreclosure was brought thereon, and decrees entered, and sales had; and that the title of .the plaintiff had thereby -been already extinguished. The plaintiff, in his reply, admitted that he lost the land by these proceedings. The plaintiff’s petition was filed prior to March 1, 1921: to wit, on February 24, 1921. The plaintiff does not purport to bring specific performance, nor to declare forfeiture, nor to claim damages as such. He brings his action strictly upon the promise to pay, contained in the contract and note, pursuant to a provision in the contract permitting him to bring such an action for the recovery of ’all past-due installments. His action is, therefore, an action upon the contract. Needless to say, he cannot recover upon such contract without disclosing performance or readiness to perform upon his own part, in that regard. His position is not materially different from what it would have been in a suit for specific performance. In his reply, the plaintiff admits his
With a view of sustaining this contention, the plaintiff offered, upon the trial, to prove by his oral evidence that he advised the defendant, at the time of executing the contract, that the mortgages were due, and that the taxes were delinquent, and that the interest on the mortgages was unpaid, and that he would be unable to pay the same unless the defendant paid him the $1,000 installment contracted for. This proposed evidence was intended to form the basis for charging upon the defendant the responsibility for the default and failure of the plaintiff. This evidence was rejected by the court. Thereupon, the plaintiff rested, and the court directed a verdict for the defendant. The one question presented for our consideration by the plaintiff is, Was the evidence admissible 1 Plaintiff assumes that, if we should hold in the affirmative as to the admissibility of this evidence, he would be entitled to a reversal of his case. This is a mistaken conception of his right as an appellant. His appeal was from the judgment. The offered evidence, if admitted, would not, of itself, have availed him unless the evidence as a Avhole, including the offered evidence, entitled him to go to the jury. The contract required the plaintiff to convey a good title by warranty deed, and to furnish an abstract showing that he had a merchantable title. There is no evidence that the plaintiff had any title, or an abstract of title. Whether his interest in the title, if any, ivas equitable or legal, or whether it arose out of a contract, or out of a conveyance, or whether his title was apparent of record, does not appear. Moreover, it is conceded that the second mortgage was overdue, and that the first mortgage had become due by reason of delinquent interest and delinquent taxes. Plaintiff assumes that, if he could have paid off the interest and taxes, the mortgagees would reinstate him as nondelinquent, and that they would extend the time of maturity of the mortgages. But there is no evidence of any agreement or arrangement to that effect. For aught that appears in the record, delinquent interest and taxes might have been paid without suspending at all the right of immediate foreclosure by the mortgagees. The plaintiff represents himself, in effect,
It must be said, therefore, that, even if the offered evidence had been received, or if we now treated it as though it were admitted, the plaintiff would still be without a. case.
II. It is apparent from the argument that the plaintiff’s theory herein is that, if the plaintiff was unable to pay the delinquent interest and taxes unless the defendant paid him the $1,000 installment agreed to be paid upon the execution of the contract, then the defendant was legally responsible for the loss by the plaintiff of his land, and the plaintiff is thereby absolved from all obligations to perform by conveying it, and yet
In the case at bar, the plaintiff has availed himself of such remedy, but he cannot sue for the purchase money and still refuse or fail to perform on his own part. That he is helpless to perform is conceded. This is decisive of his case.
In view of this conclusion, it is quite immaterial whether any or all of hi£ evidence were received, and we shall not deal with the question. For the reason indicated, the judgment below is affirmed. — Affirmed.