31 Iowa 472 | Iowa | 1871
The record presents, for our consideration, a single question, to wit: Is parol evidence of the agreement set out in plaintiff’s petition admissible ? The defendant claims’ that the contract sued on is substantially one of three things, to wit:
1. An agreement by Harstock to indemnify Kauffman against any liability he might assume by signing the stock subscription paper of the railroad company; or
2. A guarantee to Kauffman against loss arising to him out of his stock subscription; or
3. It was a sale by Kauffman to Harstock, of his interest, present or prospective, in the stock of the railroad company. And he insists that, whether the contract be the one or the other of these three, oral evidence is not admissible in its proof under sections 4006 and 4007 of the Revision.
The plaintiff claims that the agreement falls under the last class named, and thereby tacitly concedes that it is not susceptible of parol proof if it falls under either of the other classes named. Ye will therefore confine our examination to a consideration of the question, whether the contract may be regarded as an agreement for the sale of personal property, where the article of personal property sold is not, at the time of the contract, owned by the vendor and ready for delivery, but labor, skill or money are
If the contract is to be regarded as one of sale, it was such upon the day it was entered into, and the happening, at any time thereafter, of the condition upon which the defendant agreed to take the stock would render him liable for the performance of his agreement. Hence, the sale of the plaintiff’s farm upon the day after the subscription, and before he had paid a dollar thereon, would perform every condition of the defendant’s liability, and subject him to an action in the event of his failure. But it is quite apparent that, before he had paid any thing to the capital stock of the company, he owned no personal property therein which could be the subject of sale. Inasmuch, therefore, as the obligation to perform the agreement upon the part of defendant does not depend upon the acquisition by the plaintiff of any property in the stock of the company,' the agreement cannot be regarded as a contract for the sale of such stock. If the plaintiff had sold his farm before he had paid any thing on the stock, and then had brought suit against the defendant, it is plain that he would have sought to substitute the defendant in his place, and to subject him to his liabilities, and that he would not have endeavored to enforce a contract of sale. It seems to us, therefore, that the agreement is simply one, upon certain contingencies, to step into the place of plaintiff, and to assume the performance of his obligations. As such, it cannot be proved by parol. That, as a contract to indemnify Kauffman and hold him harmless, the agreement cannot be proved by parol, see Kingsly v. Balcombe, 4 Barb. 139; Draughan v. Bunting, 9 Ired. 10.
We are of opinion that the evidence was improperly admitted, and that the judgment should be
Reversed.
