Linder v. Lake

| Iowa | Jun 11, 1858

Stockton, J.

— The only question for our consideration is, whether there was error in the ruling of the district court in sustaining the demurrer.

I. The instrument of writing is certainly very clumsily drawn, but we think, there is little chance for mistake as to its meaning. By a slight transposition of the sentence, it may be thrown into proper shape, and all room for misapprehension obviated. If the names of the obligees are not expressed,’they are evidently implied, by the whole tenor of the agreement; and no one, we apprehend, would be liable to be misled into designating any other than the present plaintiffs as the obligees in the agreement.

II. To the objection raised by the defendant on the demurrer, that the agreement is without consideration and void, it may be replied, that by the statute (Code, section 975), all contracts in writing, signed by the party to the bond, his agent or attorney, import a consideration, in the same manner as sealed instruments did at the time of the adoption of the Code; and by the act of January 25, 1839, it was provided that any instrument under seal, was to be deemed valid and binding, according to the fair intent and meaning thereof, in all cases not otherwise declared by express statute, and unless the execution thereof shall have been obtained by fraud, or for an unlawful purpose. Rev. Stat. 1843, 104. At common law, a contract under seal was valid, without reference to the limitation, the seal implying, of itself, a consideration. When not under seal, the law did not, as a general rule, imply a consideration from the fact that the agreement was in writing; and except in the case of mercantile negotiable paper, it was as necessary to prove a consideration, as if the contract were oral only. 1 Parsons on Contracts, 355 and 496; Dodge v. Burdell, 13 Conn., 170; Cutler v. Everett, 33 Maine, 201.

The agreement in this case being in writing, a sufficient consideration is to be presumed, in the same manner, as it would have been presumed at common law, in an action on an instrument under seal. The objection that no consideration is shown upon the face of the instrument, or that none is averred by the plaintiffs in their petition, cannot be taken upon demurrer. The want of consideration, or the failure, in whole or in part, of the consideration of any written contract, must be averred and shown by way of defence. Code, sec. 976. The defendant, Lake, was already bound to the plaintiffs by the covenants of his deeds of conveyance to them, to discharge all incumbrances upon the land. His liability to plaintiffs upon these covenants, ought to be considered a sufficient consideration for his present undertaking. His co-defendant, Clark, must be considered in the light of a surety for the faithful performance of his agreement.

III. The question whether the contract, as to the obligees, is joint or several, or both joint and several, is one of no little difficulty. This difficulty arises, not less from the unusual nature of the agreement, than from the still more unusual form in which it is expressed. As the obligees in the contract, are not expressly named, but may be inferred from the circumstances — the situation and relation of the parties, we think it may also be inferred, that the agreement was joint as to the obligees. We should, at least, feel great difficulty in deciding, that it was not such an agreement as might be sued on in the names of the plaintiffs jointly. The damages to be recovered, (if any damages can be recovered), upon it, may be a gross sum, to be divided between those entitled to it. There is nothing inconsistent in the plaintiffs taking an obligation to themselves jointly, to secure their several demands. In such cases the interest of the obligees is joint. A joint obligation and right, may co-exist with a several obligation, or right; for there may arise from the same contract, one joint duty to all, and also several joint duties to each of the parties. 1 Parsons on Contracts, 20. The action is not brought to recover damages for a breach of the covenants of warranty in the deeds of conveyance from Lake to the plaintiffs, but for the breach of the defendants written agreement, to have the lands conveyed to plaintiffs released from the lien of the mortgage. The covenant appears to us to be single in its nature, though intended to secure several interests; and, we think, was properly sued on in the names of the plaintiffs jointly. "Whether the plaintiffs may not have sued on the same severally, it is not now necessary to determine.

IY. Under the fourth cause assigned for demurrer, the defendants claim that it is not averred or shown by the petition, that plaintiffs have sustained any damage by the non-performance of their agreement by defendants. In actions on penal bonds, the plaintiff must set forth the breaches, and the judgment rendered thereon must be for the actual damages only. Code, section 1888. It is not alleged in this case, what damages, if any, the plaintiffs ha ve sustained by reason of the non-performance of defendants. It is not shown that they have been required to pay any sum or sums of money, to release the lands from the lien of the mortgage, nor that they have been in any manner evicted of the premises. The plaintiffs cannot recover the penalty mentioned in the agreement, nor, indeed, any sum more than nominal, until some damage is averred and shown. Funk v. Creswell, 5 Iowa, 62" court="Iowa" date_filed="1857-06-26" href="https://app.midpage.ai/document/funk-v-creswell-7091293?utm_source=webapp" opinion_id="7091293">5 Iowa, 62.

The judgment of the district court, sustaining the demurrer, will be reversed, and the cause remanded, with leave to plaintiffs to amend their petition.