141 Iowa 721 | Iowa | 1908
After the making of this agreement of settlement, the-title to the land was by the voluntary action of both partners vested in J. M. Berry individually, and not as receiver, Berry to- hold the title for C. M. Fritz. S¡ B. Fritz, who was already in possession of the stock of goods, proceeded to treat it as his own property, and to dispose of it without consultation with or accounting to C. M. Fritz. Settlement with Hubbard’s trustee and Plummer was not effected during the January term, 1905, of the court, but at the May term 'following a default was secured in the foreclosure suit which disposed of all claims of Plummer and the trustee of Hubbard against the stock of goods. In the meantime, however, there had been omissions on the part of C. M. Fritz with regard to the carrying out of the terms of the contract of settlement which it is now claimed' justified a rescission thereof by S. B. Fritz, and it is further claimed S. B. Fritz took advantage of such default on the part of the other party to the agreement and did rescind it.
One of the chief claims made for appellant as constituting a showing that the agreement of settlement was .practically abandoned by both parties to it is that nothing was done on either side-to carry out its provisions. -But such a claim is not in accordance with the evidence. Before the time when the foreclosure suit against Hubbard
There was a delay of several months in the adjustment of the settlement with Hubbard’s trustee and Plummer, but it does not appear that any damage resulted to the plaintiff on account of this delay, and, when the judgment by default was secured extinguishing all pretended claims on the part of Hubbard’s, trustee and Plummer on the stock of goods, C. M. Fritz had substantially complied with the agreement of settlement in this respect. Two other small -claims by creditors of the firm were to be satisfied, but it does not appear that such claims have be.en pressed as against plaintiff nor that they are of any validity, and failure of C. M. Fritz' to perform in this respect has never been insisted upon by plaintiff as a ground of rescission. With reference to the failure of C. M.. Fritz.to make plaintiff a cash payment of $98.50', it is enough to say that, before the filing of -the supplemental petition asking a cancellation of the agreement of settlement, C. M. Fritz made a tender to plaintiff covering all his liability arising out of the agreement of settlement not already extinguished.
One other default on the part of O. II. Fritz is insisted upon by plaintiff, which consisted in the failure to pay an installment of interest on the mortgage subject to which the tract of land had been taken in exchange for the stock of goods. This 'installment of interest in the sum of $116 fell.due prior to the date of the settlement, and, as no provision in the agreement had reference to the pay
Other conversations between plaintiff, Berry, and one Steinbilder, with whom it is said plaintiff listed the land for sale in disregard of the agreement of settlement, are also relied. on as showing a mutual abandonment thereof. But here again there is much contradiction between the accounts of the witnesses, and we can do no more than say that plaintiff’s contention is not sustained.
It is of considerable significance that no witness testifies as to any express and specific rescission of the agreement of settlement by plaintiff or renunciation thereof by C. M. Fritz. Whatever was said according to the testimony of- any witness tending to show such rescission or abandonment was said as between plaintiff and Berry, who was the attorney of C. M. Fritz after the agreement of settlement was made, and it does not appear that Berry had any authority from Fritz to agree that this contract should be modified or superseded.
There is some language in .the agreement of settlement as already described which might support the contention that only a performance of the terms of the agreement by C. M. Fritz would relieve him from his previous obligations, hut taking the language as a whole we are satisfied that the purpose of the parties was to extinguish their previous rights and liabilities and substitute therefor the rights and liabilities specified in the agreement. This view is corroborated by the fact that no specific time is mentioned for the performance of several of the obligations named in the agreement, and that after it was made the conduct of both parties was consistent with the theory of a substitution of an executory agreement’ rather than with the theory of an agreement that their previous rights and liabilities should be extinguished only when the settlement ivas completely carried out.
We are satisfied, therefore, that the trial court correctly held the agreement of settlement to be a complete substitution for the pre-existing rights and liabilities of the parties as partners, and that plaintiff therefore failed to show himself to be entitled to any relief under his amended and supplemental pleading.
The decree is (tffirmed.