188 Iowa 1039 | Iowa | 1920
■ The writing then further provides that, on March 1, 1924, Fobian “will pay to the party of the first part $48,-948.73 principal and $2,447.43 interest;” will pay all taxes assessed against the land for the year 1919 and subsequent years, and keep the buildings, insured in the name of the defendant, “as his interest may appear.” Fobian still further undertakes to bring upon the premises personal property free from incumbrance, to the value of $4,000, and to give defendant a chattel mortgage thereon, “to be used as part payment or security of the foregoing option.” Provision is also made by which the option may be accepted and settlement made for the land at any time, and by which any sums paid for the consideration of the option or renewal thereof, except payments of interest, shall be deducted from the purchase price. The concluding clause of the agreement is as follows:
“When the purchase price has been fully paid as aforesaid, and the conditions of this contract fully performed, then the party of the first part agrees to convey said premises to the party of the second part by good and sufficient .warranty deed conveying a good title clear of all incum-brance except taxes as stated.”
I. Is this agreement, upon its face and as a matter of law, a contract for the sale of the land5 or is it a mere option to Fobian to make such purchase, if he so elects? Appellant affirms the latter theory; while appellee contends that, if the agreement be not clearly and conclusively a contract of sale, it is of such ambiguous and uncertain character that the jury could properly find, under all the testimony, that it was so intended by the parties.
For the purposes of this case, it may be admitted at the outset that an agent for the sale of land, or for the production of a person ready, willing, and able to buy on the authorized terms, does not earn his commission by producing a customer who does no more than to take or obtain an option to buy. What, then, is the nature of this agreement, concerning the written terms of which there is no dispute? The writing in question is made to name or describe itself as an “option,” but the name or label attached to an instrument does not always or necessarily determine the real nature or effect of its contents. An option for the purchase of land is a mere privilege or right which the owner confers upon, another person to become, at his own election, the purchaser of the property, on stated terms, within a stated period of time. The holder of such an option is in no sense a purchaser. He acquires thereby no right, title, or interest, legal or equitable, in or to the land. He has no right of possession or control. He may, within the time agreed upon, utilize his privilege to buy, tender performance of the terms, and demand a conveyance; but this is a matter of his own choice, and he may permit the option to expire,
Brought to the test of “these principles, the contract in the case now under consideration is hardly open to reasonable doubt. It provides for much more- than a right or privilege in Fobian, at his election, thereafter to be made, to buy the property at a given price. Taken as a whole, it clearly provides for the actual sale of the land for $60,217.50. Though not so stated in express words, it will be seen, by analysis of its terms, that it was treated as a sale, from the date of the instrument. A cash payment was to be made at that time; further yearly payment was to be made on each succeeding March for four years, together with yearly payments of interest. Interest on what? Not interest on the price of the option, surely, but the accruing, interest on the entire, agreed price of the land. At the end of four years, the remainder of the purchase money was to become due. True, the cash payment and yearly installments, amounting to $5,000 annually, are described as payments for the option and its renewal; but it is further expressly agreed that all these payments shall, in settlement, be credited as payments upon the price of the land, and that, “when the purchase price has been fully paid, as aforesaid,” deed of conveyance is to be made. The purchaser went into possession at once, not as a tenant, nor as a tenant with option to purchase, but as purchaser, and was required by the contract to further secure the seller by chattel mortgage on at lea,st $4,000 worth of personalty. It is not necessary, for present purposes, to inquire or decide whether, upon failure of Fobian to pay one or more subsequently accruing installments, according to his contract, defendant could immediately dispossess him, or would be required to proceed by foreclosure, or other legal or equitable proceedings, to enforce the contract. It is to be noted, however, that the con
In this case, Fobian did not acquire simply a naked right to purchase, if he should so elect. His election was made at the very threshold of the transaction. He made a substantial payment down upon the purchase price. He acquired possession. He paid interest on the full, agreed price of the land, from the date of the agreement. He se
That the contract was intended as one for a sale of the property, we cannot doubt. Such being the case, the plaintiff having, by his agency, found and introduced the purchaser to the defendant, his right to the agreed commission was complete, subject only to the defendant’s contention, if duly established, that payment of such commission was to be made in installments, as payments by Fobian of the price of the land should mature. Quite in point, upon the principal point here discussed, is McGregor v. Ireland, 86 Kans. 426 (121 Pac. 358).
At a witness in his own behalf, the defendant quite uniformly speaks of his deal with Fobian as a “sale.” He further says:
“I admit Mr. Gompert had the farm listed to find a purchaser for me. * * * I told him, if he would find a purchaser, 1 would pay him $2.50 an acre. 1 met Fobian through Mr. Gompert, and took him down to see the farm, * ?> ' The disagreement between Gompert and myself
Defendant’s claim th^t plaintiff had agreed to accept payment in installments, as Fobian’s installments were paid, was denied by the plaintiff. This issue of fact was sribmitted to the jury, with an instruction that, if such agreement had been made, then plaintiff could not recover. The jury appears to have found the fact against the defendant, and, for the purposes of this appeal, this finding must be taken as final. That defendant regarded and still regards his contract as one of sale, is very evident. Indeed, it is the only attitude he can take which is at all consistent with the admitted facts.
It results from our views, as expressed in the first paragraph of this opinion, that, even if this assignment of error be well'taken, and if the construction of the contract was for the court, and not for the jury, the error so committed was without prejudice.
Further discussion is unnecessary. There is no sound theory, upon the proved and admitted facts, on which plaintiff can be denied a recovery. The trial court did not err in refusing to direct a verdict for the defendant, nor does prejudicial error otherwise appear in the record. The judgment of the district court is — Ajfmned.