119 Iowa 24 | Iowa | 1902
The appellants claim that the contract of November 22, 1886, is of a dual character, — that it'is both a guaranty of performance on the part of Johnson, and a direct undertaking of indemnity on the part of Richards; while the appellee contends that it is a contract of guaranty only and that it was wholly without consideration.
But were we to adopt the view of the statute contended for by the appellants, whenever the expressed consideration should be held invalid the statute would at once provide another and a valid one, regardless of the contract of the parties. So far, then, as the contract in question is one of guaranty, it must be held to be without consideration. Lane’s rights and liabilities under the Johnson contract were in no wise changed thereby. Ayres v. Railroad Co., 52 Iowa, 474; Walker v. Irwin, 94 Iowa, 448. Under the contract between Johnson and Lane and Richards the two- latter parties were not bound to pay any part of the principal remaining unpaid on the purchase price of the land, but, as before stated, they had the option to do so. It does not appear that Lane, in his lifetime, paid anything more than he was obliged to pay by bis contract. The last clahse, however, of the contract of .November 22d,
Strictly speaking, it cannot be said that the contract as to the optional payments was an executory one, and therefore might be performed by the personal representatives of the deceased, because there was in fact no contract for a further payment on the part of Lane, and Eichards’ promise of indemnity to him was, in effect, that if, in the exercise of his personal judgment, he advanced money for which he was not bound, he would indemnify him. There is nothing in the contract indicating an intent on the part of either that the option in question might be exercised by another, or pass to Lane’s representatives, and the undertaking of Eichards survive his death. The character of the entire transaction was such that, in our opinion, a presumption arises that the contract was personal, and that the death of Lane terminated it, and that the plaintiffs had no right to make future advancements on the strength thereof. Marvel v. Phillips, 111 Mass., 399 (38 N. E. Rep. 1117 (26 L. R. A. 416, 44 Am. St. Rep. 370); Cox v.
The judgment is aeexrmed.