194 Iowa 189 | Iowa | 1922
I. On May 1, 1919, the parties hereto entered into a contract of sale of real estate, whereby the plaintiff agreed to sell and convey and the defendant agreed to purchase and take. By such contract the plaintiff agreed to ‘ ‘ convey or cause to be conveyed, ’ ’ etc., by warranty deed. It also provided that the defendant was to take the land subject to a $9,000 mortgage, “which first party assumes as part of the purchase price
(1) That the contract was merged in the deed, and that the deed was silent on the rate of interest borne on the $9,000 mortgage.
(2) That he received his title from Grove; that the plaintiff was not a party to the deed; and that, therefore, he is in no position to recover the purchase price.
The grounds thus stated are not quite consistent. Though the plaintiff was- not a party to the deed as such, he was a party to the contract. The contract bound him to “cause to be conveyed” the land described therein. The defendant’s promise was to pay the purchase price to the plaintiff, not to Grove. In procuring the conveyance of the land from Grove to the defendant, the plaintiff was purporting to perform his own contract, and not the contract of- Grove. Having performed his own contract, he was, by the terms of such contract, entitled to the purchase price. The amount of such purchase price must also be determined
II. There is one other feature of the defense to be considered. One Schulmeister was agent for the plaintiff in the closing up of the transaction with the defendant. The abstract of title disclosed the $450 mortgage as a second mortgage, and the defendant objected thereto, In making payment of the purchase money to Schulmeister, the defendant delivered to him one check for the full amount due, less $450. lie also delivered to him another check for $450. Pie later refused payment of the $450 check, and it went to protest, and was never collected. The defendant contends that he delivered the $450 check to Schulmeister under an agreement that Schulmeister would hold such check until the $450 mortgage question “was adjusted.” Schulmeister testified:
“He gave me the check. He suggested, when he gave me the check, that I hold the money until this thing was settled, some way or other. I thought we would compromise with him for it.”
It is the contention of the defendant that this arrangement with Schulmeister stands as a bar to plaintiff’s present recovery. Why? Upon the testimony of neither witness did it purport to be a settlement. If the plaintiff had himself been present, to agree to such an arrangement, it would have been nothing more than a tentative one, entered into with a view of attempting a settlement later. No settlement has ever been had, and each party stands, as before, upon his legal rights, whatever they may be. There is no evidence of any authority in Schulmeister to enter into such an arrangement, whereby he would arise above his principal and make himself the arbitrary custodian of his
The merits of the ease are clearly with the plaintiff. The decree of the district court is, accordingly, — Affirmed.