175 Iowa 198 | Iowa | 1916
The affirmative defense that the delivery was conditional only was admitted by plaintiff in a reply, with a further averment, however, that the condition had been complied with, and a further averment that, subsequent to the date of the contract, it had been orally agreed between the parties that the said written contract should be deemed in force. The case as made in the record is unique, in that it presents no debatable question either of law or of fact. Putting the facts briefly, the plaintiff was a real estate agent and was acting as such for the defendant in the proposed sale of certain tracts of land owned by the defendant in South Dakota and Texas. He purported to have found a purchaser in one Forbes, who also had real estate to be turned in the exchange. The plaintiff was himself the owner of a piece of property which is the real estate involved in this suit. He advised the defendant, that he wanted to turn in his own property in the deal with Forbes. On October 25, 1913, he came to the defendant while .the defendant was engaged in husking
“Each party to this contract reserves the right to rescind this contract without damages, upon giving the other party notice in writing within 10 days from the date hereof.”
This contract was followed by an immediate examination by each party of the property offered to him. Such examination proved so disappointing to each that he immediately notified the other in writing of his repudiation of the contract.
The procuring of the signatures of the parties to this tentative contract is relied upon by the plaintiff as a performance of the condition upon which the contract between him and Wagner was delivered.
No useful purpose can be subserved by an extended discussion of the evidence. Plaintiff’s ease has the unmistakable odor of pus, and we are not disposed to dwell upon it longer than is necessary to ascertain its merits. We find no merit in it.
We are at a loss to. disco ver just what function this testimony had at the particular stage of the trial when'it was introduced, it being true, as urged in plaintiff’s objection, that he had not,'as a witness, contradicted the defendant at any material point; and he did not in fact contradict him thereafter. It is possible that, as a military maneuver, this line of action could be justified as a “curtain of fire” to prevent the plaintiff from bringing forward his supporting testimony. Having served that function, we are still at a loss to discover why it should have been brought into this record by an amended abstract of the appellee, unless it is supposed that this court would be disposed to do less than justice to a bad man, or more to one who had a bad adversary. Even the code duello does not permit the shooting of an adversary after he has fallen. The amended record by appellee has served no other purpose here than as a quasi mutilation of a dead body. No costs will be taxed for the amended abstract.
The decree entered below will be — Affirmed.