81 Iowa 449 | Iowa | 1890
Ajipellants urge that from the testimony they could properly understand that they were released. To our minds, no such conclusion is properly deducible. There is nothing in the testimony indicating that Jesse McMahon agreed to do more than see Cooper & McGee and secure them as renters if he could. Mr. Wright says he told Schoentgen just the conversation he had with Jesse. Schoentgen says: “That would release us.” What would release them? Evidently, if Jesse secured Cooper & McGee as renters. There had been no talk of a release except renters were secured, and Wright was asking Jesse to do what Schoentgen wanted Wright to do, — see Cooper & McGee, — not to engage positively to secure them. The appellants say that Schoentgen testified that Wright agreed positively that the lease should be terminated. That he so testified is true, but in that he is contradicted, and in such a case we are to take that view of the evidence that will sustain the verdict. But, more than this, appellants well knew, when Wright told Schoentgen of what Jesse said, that Cooper & McGee would not accept the building without repairs, and also knew that they would not be released on such conditions. Cooper had told appellants their terms, and, at that time, appellants were the only parties knowing them. We think the verdict of the jury is fully sustained by the evidence.
Complaint is also made as to the remainder of the same instruction on the ground that, in effect, it required the defendants to prove an agreement with plaintiff for their release, and it is said in argument that they did not plead a contract. But let us test the question by quoting from appellants’ argument: “Defendants did not plead a contract for the •termination of the lease with plaintiff. What they did plead was that plaintiff was informed of the contract with Wright and McMahon for its cancellation, and that he assented to it, and promised that he would make no claim for rent after the termination of the lease, as provided in that agreement, and that they relied upon that promise when they surrendered possession; and their proof was directed to that claim.” With appellants’ statement as to what they pleaded, is there less than a contract set forth? Plaintiff, being informed of certain facts constituting an agreement of Wright with Mrs. McMahon to release defendants, assented to it, and promised that he would make no claim for rent.' And defendants relied upon the promise and surrendered possession of the premises. Plaintiff has assented to a former contract of release, and promised not to do a particular thing; and defendants seek the enforcement of the promise. We think that is pleading a contract. A contract is an agreement between parties for the doing or not doing of some particular thing. 1 Pars, on Cont. 6. The district court seems to have taken that view in its instructions, and its judgment should be affirmed.