198 Iowa 942 | Iowa | 1924
— The plaintiffs are husband and wife. The husband was the owner of a quarter section of land in Jasper County, and had owned the same since March, 1921. The oral transaction sued on herein was had in the summer of 1923 and prior to September 15, 1923. Such oral transaction was a tentative arrangement between plaintiff Hixson and the cashier of the defendant bank for the financing of certain incumbrances existing upon the plaintiff’s farm. Such farm was incumbered by a first mortgage of $11,000 held by a bank at Burlington, Iowa. It was further incumbered by a second mortgage to Katherine Wright for $3,000. It was further incumbered by a quitclaim deed to the defendant herein, given as security for a debt of $1,640. On September 5, 1922, a foreclosure decree was
The plaintiff presents a theory of measure of damages to the effect that he lost his farm because of the alleged- breach of contract by the defendant, and that such farm Avas worth from $175 to $200 per acre. He contends that he is entitled to a decree declaring the defendant a trustee, holding the farm in trust for the plaintiff, or else- .to a judgment for damages for the value of the farm and of the crops thereon.
. It may as well be stated at the outset that the loss of plaintiff’s farm cannot be attributed, in a legal sense, to the failure
The appellant cites us to no authority holding that specific performance may be had of an oral contract to make a loan. We know of no such authority. Adequate remedy may be had m damages. Ordinarily, the measure of such damages is the excess of interest, and perhaps ' expense attending the negotiation of another loan.
If specific performance ivould otherwise lie, it was incumbent upon the plaintiff to tender full performance on his own part and to keep the tender good pending the litigation. It appears, however, that the plaintiff had other debts, and that, in January, 1923, a judgment ,for $858 had been entered against him .in Poweshiek County. ’ A transcript of this judgment ivas filed and entered in Jasper County on October 15, 1923. This became a lien on plaintiff’s right of redemption. It became such after the beginning of the suit, but before trial. This judgment lien interposed insuperable obstacles to carrying out the contract here sued' on, and plaintiff must be deemed responsible for the obstacle. He made no tender of any kind in reference thereto. The effect of the continuance of such judgment lien of itself terminated the right to specific performance, if any he otherwise had.
We are not unmindful of the apparent hardship to the plaintiff that he should have been unable to make redemption of his land. His inability to do so can be ascribed only to 'the deficiency of his security. The defendant bank and its officers not only were not required to close their eyes to such deficiency, but they were under a solemn legal obligation to open their eyes to that very objection to the security.
The decree of the trial court was unavoidable, and it is, accordingly, affirmed.—Affirmed.