155 Iowa 447 | Iowa | 1911
The defendant Maggie J. Eoley is
Hcerseh, the agent, was expressly .authorized to sell the property for $1,250, and he did so, accepting as part payment thereon the plaintiff’s check for $50. Had objection to this check as a part payment been made by Hoersch, or by Maggie J. Foley when it-was received by her, it could not be considered as a payment that would take the case out of the statute of frauds. But' no such objection was at any time made, and the form of payment' will be deemed waived. •
The absolute refusal of the owner to sell on'the'terms theretofore fixed by her relieved the purchaser from further tender of price. Webb v. Hancher, 127 Iowa, 269; Primm v. Wise & Stern, 126 Iowa, 528.
Actions for specific performance are addressed to the sound, legal discretion of the court, and we think this a case where such discretion was wisely exercised. The judgment is therefore affirmed.
SUPPLEMENTAL OPINION.
The statute of frauds was in no way involved in this ease and what is said in the original opinion relative thereto was. an inadvertence and the statement is hereby withdrawn.
The petition for a rehearing is overruled.