158 Iowa 15 | Iowa | 1912
On March 17, 1910, the plaintiff, as a real estate broker, entered into a written agreement with the
Substantially, the controversy between plaintiff and the defendants Young, Mullarky, and Long, who will be hereafter referred to as the defendants, is as to whether the written contract entered into between plaintiff and defendants was a mutually binding agreement of purchase by plaintiff, for breach of which defendants must answer in- damages, or whether, on the other hand, it secured to plaintiff only an option to purchase the land, on terms specified, .within sixty days, and by its own terms became void and inoperative on the failure of the plaintiff to exercise such option to purchase within the time specified.
The written instrument referred to consisted of a printed blank, embodying the usual provisions of a contract of sale of land, with certain stipulations written in blank spaces left for the purposes of specifying the description of the property, the names of the parties, and the terms of payment. Without setting out the contract in full, it is sufficient Jo say that the consideration was stated to be $18,000, of which the plaintiff had paid $50, and that plaintiff agreed to assume a mortgage on the land for $8,000, give a note for $3,000, secured by
As to the alleged estoppel, it is sufficient to say that the merely precautionary measure of serving notice, in view of the possible construction which might be contended for by plaintiff, would not, in itself, constitute an estoppel of the defendants to rely upon their construction of the terms of the contract. Such notice was not served until after defendants had, as plaintiff well knew, entered into an agreement for the sale of the land to Wait; and nothing appears to •have been done by plaintiff in reliance on such notice, save to attempt to insist upon his own construction of the agreement. It nowhere appears that if this notice had not been served plaintiff would have recognized the contract as providing for an option only, and abandoned further effort to enforce the contract under the construction which he placed upon it.
Whatever plaintiff may have done in attempting to effect a sale of the property to another purchaser, and on other terms, was plainly, in view of the correspondence between the parties, done in the hope of securing some advantage by way
The suggestions already made practically, dispose of the contention that appellees, having elected their remedy under the instrument, are foreclosed from now taking the inconsistent position that it provided only for an option, which had become forfeited when such election was made. The ease is not one involving election of remedies, but one involving the construction of the contract itself, and in view of this' situar tion the doctrine as to election of remedies has no application.
The decree of the trial court was right; and it is therefore Affirmed.