198 Iowa 823 | Iowa | 1924
— I. Appellant and A. T. Whittam, as agents of the Western Terminal Elevator Company, located at Sioux City, Iowa, for the sale of .its capital stock, on August 8, 1919, entered into a contract with appellee for the sale to him of ten shares of said'stock at the par value of $100 per share. They also, in a memorandum written below the receipt given for the subscription contract, agreed, at the option of appellee, to repurchase the ten shares “one year from date,” at the rate of $106 per share. The other contract bears date September 11, 1919, is part in typewriting and part in pencil, and appellant and Whittam, by its terms, agreed to sell the 39 shares of stock subscribed for on the above date within six months after date, at $125 per share.
Want of consideration and of mutuality in the contract are relied upon as defenses to Count 1. The contract for the resale of the 39 shares purchased September 11, 1919, provided that, if the stock was not sold within the time agreed upon, the subscription therefor would be canceled, and the payments made would be returned to appellee. The principal defense set up to the cause of action based thereon is that, although appellant made a good-faith effort to sell the stock, he was prevented from doing so by appellee, who, it is charged, negotiated a cancellation of the subscription with the elevator company before the time allowed for the sale thereof had expired. .
The only issue tendered which, under the facts of this case, was cognizable in equity was that of the reformation asked of the second 'contract; but, by failing to move to transfer the case to the law docket, appellant waived his right to a jury trial, and the court retained jurisdiction to enter judgment for damages.
The plea of want of consideration is witho'ut merit. The mutual promises of rescission were sufficient on this point. Mackie Motors Co. v. Dearborn Truck Co., 192 Iowa 458. The evidence shows that appellee exercised his option to sell the ten shares of stock within one year, and again within a reasonable time after the year expired. The contract did not require him to exercise the option until after the year expired. He therefore had a reasonable time after such expiration in which to do- so. Reitz
II. The typewritten portion of the second contract is as follows:
“This is to certify that F. M. Flinn, A. F. Whittam, known as the party of the first part, and H. L. Fitch known as the party of the second part, have entered into a contract this day Sept. 11, 1919, whereby both parties of the first and second parts agree to sell at any time within six months after date Sept. 11, 1920, any part or all of the Western Terminal Elevator Company, capital stock, owned by the party of the second part, for one hundred and twenty-five ($125.00) dollars or more per share. ’ ’
The names of the parties and the dates were all written in in pencil, in blank spaces left for that purpose. The word “within” italicized above, was also written in pencil. Appellee prays that the contract be reformed so as to • make it read, ' ‘ within six months after September 1919,” instead of “six months after September 11, 1920,” as written.
If the contract bound appellant to sell the stock within six months after September 11, 1919, he was in default thereon at the time this action was commenced. If, however, he was to have six months after September 11, 1920, to sell it, the time-had not expired when the subscription was canceled at the instance of appellee, and no recovery should be allowed on this count of the petition. The court below held that the date September 11, 1920, was inserted in the contract inadvertently or by mistake, and decreed a reformation thereof so as to limit the time to six months after September 11, 1919.
The evidence is conflicting; but the circumstances disclosed by the testimony of appellee tend quite strongly to sustain his version of the transaction. Appellant testified that the matter was fully tallied over between the parties, and that the agreement as written expresses, the true intention of the parties. The blanks in the contract were filled out and the memorandum on the margin thereof written by Whittam. The circumstance that militates most strongly against the claim of appellee is that a copy of the contract given to him at the time shows the dates as written in. the original instrument.. Appellee testified, however, that he did not examine the copy nor discover the error until it was later called to his attention by his attorney. Fraud is not charged in the petition. We think the evidence satisfactorily shows-that, the real agreement of the parties was that appellant and Whittam were to have six months in which to sell the stock after September 11, 1919, and that the contract was properly reformed. The conduct of appellant is, to some extent, corroborative *of this conclusion. In conversations with appellee and his attorney after the subscription had been canceled by the Elevator Company, he did not claim that he was -to have one year in which to sell the stock, nor did he then, deny liability upon the ground that he had been prevented from selling the stock by the cancellation of the subscription by the Elevator Company at the request of appellee. We do not deem it necessary to recite the evidence at length nor to discuss the same in detail. We have no doubt that appellee was induced, to some extent at least, to purchase the stock, which promised him a profit, by the agreements entered into by appellant and his associate to repurchase or sell it upon the- terms indicated.
This court cannot, of course, make a new contract for the parties, nor has it undertaken to do so. The court does have