37 Iowa 290 | Iowa | 1873
The jurisdiction of equity to grant such relief is, perhaps, most frequently invoked in cases of parol contracts, where from part performances, payment of purchase-money, or other ground of equitable interposition, it would be unconscionable to permit a party to repudiate his agreement.
Even the statute of frauds of 29 Charles II did not require that the contract should be in writing. It was a compliance with that statute if the agreement or some memorandum or note thereof was in writing, signed by the party to be charged, or some other person thereunto lawfully authorized. And our statute upon evidence, which supplies the place of the English statute of frauds, simply provides that the evidence of the enumerated contracts shall be in writing. Revision, §§ 4006 and 4001.
And under both'the statute of frauds of Charles II and the
We do not, however, understand defendant to claim that there is any thing in the general provisions of our statute on evidence which prevents the enforcement of this contract.
His position seems to be, that for some cause not clearly set forth in the agreement under this assignment, no specific performance of such a contract as this can be enforced unless it is in writing, signed by the parties to be charged thereby.
We have seen there is no general principle of equity which requires such construction.
Whether there is such special regulation applicable to this contract, we will consider under the other propositions discussed in appellant’s argument.
II. The second and third assignments of demurrer are considered by appellant together.
It is claimed:
First. That section 986 of the Revision, as amended by chapter 77, Laws 1862, declares the only uses to which the swamp lands of counties shall be devoted, and that any contract of the board of supervisors devoting them to any other use is void. We had occasion to examine this question in Allen v. Cerro Gordo County, December term, 1871, and in that case we held, in view of the various provisions of the statute (Revision, §§ 921, 945, 984), requiring the expense of selecting, etc., to be paid out of the proceeds of the sales of swamp lands, that the county under its implied power
If the board of supervisors had authority, in the first instance, to compensate an agent for labor performed respecting the swamp land, by conveying to him a portion of the lands, it is difficult to discover any legal principle which will deny them the right to compromise a suit brought to recover compensation for such services, by a like conveyance of a portion of such lands, unless, indeed, the authority of the board of supervisors to compromise such action is denied altogether, which position we do not understand appellant to maintain.
Second. It is further urged under these assignments of demurrer that a contract for the conveyance or devotion of the swamp or indemnity lands of a county for any of the purposes authorized by law, must be reduced to writing and signed by the respective parties or their duly authorized agents. Section 987 of the Revision. This objection sheds light upon the view maintained by appellant in the first assignment of the demurrer, and the argument thereunder. t The position is that such a contract as the one herein sought to be enforced can be valid only when formally executed in writing. We do not stop to discuss the question whether the contract under consideration is so executed, for the section of the Revision referred to is not, in our opinion, applicable to it.
Section 986 of the Revision, as amended by chapter 77, Laws 1862, provides various uses to which it shall be competent and lawful for the counties owning swamp lands to devote them. These uses are the erection of public buildings for purposes of education, the building of bridges, roads and highways, for building institutions of learning, for a permanent school fund for the use of the county, for building county buildings, and for making railroads through the counties to which the lands belong.
The next section (987) is as follows: “ The proper officer or officers of any county may contract with any person or company for the transfer and conveyance of said swamp or over
The proper officer may contract for the purpose of carrying out any of the objects mentioned in the first section of this act (which is section 986 of the Revision), which said contrast shall be reduced to writing, etc. It is apparent that, if there is any lawful use of the swamp lands, other than those mentioned in section 986, and the amendment thereto, a contract devoting the lands to such use is not governed by section 987. It is, therefore, no valid objection to this contract that it is not executed in the manner which that section prescribes.
The property in question is the property of the county, and under the control of the board of supervisors. Allen v. Cerro Gordo County, supra.
It is the duty of the board of supervisors to represent their respective counties, and to have the care and management of the business of the county. Rev., § 311, subd. 11. The board of supervisors prosecute and defend suits on behalf of the counties they represent. “ The power to prosecute suits on behalf of a corporation includes the power to settle the same. So, the power to defend suits brought against a corporation gives- them the same power of adjustment. They may compromise doubtful controversies, to which the corporation is a party either as plaintiff or defendant.”
“ The law vests them with a discretion in such matters, which they are to exercise for the best interests of the corporation The settlement of an existing controversy, if made in good faith, binds the corporation; but if collusively made, it is not obligatory.” The Town of Petersburgh v. Mappin et al., 14 Ill. 195.
NotMng appears upon the face of the petition to show that this compromise was not made in good faith. Then why should it not be enforced ? Usually the obligee of a contract for the conveyance of real estate has a choice of remedies. He may sue for damages at law, or he may enforce a specific performance in equity.
But it is urged that the-specific execution of an agreement rests in the sound discretion of the court. This is true. But it is not a matter of arbitrary or capricious discretion, dependent upon the mere pleasure of the judge. It rests in a sound and reasonable discretion, which governs itself, as far as may be, by general rules and principles. 1 Story’s Eq. Juris., § 742. Nothing appears upon the face of the petition to show
It cannot be presumed that the agents of the county would refuse altogether to pay Baker his claim for services, and, as soon as they were sued therefor, would agree to pay him, by way of compromise, more than he was entitled to. It is clear that the petition does not upon its face show such to be the fact, and it is with the petition alone that we are now concerned. We have thus examined all the grounds of the demurrer, and we are of opinion that it was properly overruled in all its parts.
Appellant asks that if the court should hold that the demurrer is not well taken, the cause may be remanded, with leave to defend.
From this it appears that the cause was submitted to the court, to be decided in vacation, an exception- to the decision to be noted for either party by the clerk. Plaintiff did not stipulate for leave to amend, nor defendant for leave to plead. '
The abstract further recites that upon the overruling of the demurrer the defendant excepted, and elected to stand on his demurrer. The demurrer was overruled, it seems not in vacation, but during term time, on the 1st day of October, 1872. Judgment was entered upon it the next day.
Section 3086 of the Revision provides that, “ upon a decision of a demurrer, if the unsuccessful party fail to amend or plead over, the same consequences shall ensue as though a verdict had passed against the plaintiff, or the defendant had made default, as the case may be.” If the defendant had any legal excuse for a failure to plead or to ask leave to do so, he should have called the attention of the court below to it, by a motion to set aside the judgment, and for leave to plead.
If it had made such motion, supported by such showing as
The court below, so far as the facts appear to us, had the right to enter a final decree.
“A judgment or order shall not be reversed for an error which can be corrected, on motion, in an inferior court, until such motion is made there and overruled. Rev., § 3545.”
From the whole record, the defendant must be regarded as having elected not to plead, or as having waived the right to plead.
It is not, therefore, entitled to have the cause remanded for trial upon the merits. Dunlap v. Cody, 31 Iowa, 260.
Affirmed.