131 Iowa 160 | Iowa | 1905
It is doubtful whether the contract alone, and without other evidence showing the intent of the parties, will bear the construction contended for by the appellee. The provision that Twentieth street shall be dedicated, “ that the said part of said street be included in the sale ” to the defendant for future dedication, indicates that an acceptance by the city was not contemplated by the parties when the contract was entered into. A dedication for highway or street purposes may become effective as against the dedicator without formal acceptance of the street or highway, and in some instances even without any acceptance thereof. It is true there can be no completed dedication without an acceptance. Code, section 751; Elliott on B-oads & Streets, section 150, and cases cited. But the parties were at liberty to make such a contract with reference thereto as they saw fit, and by it they are bound. The evidence shows, however, that both parties construed the contract to mean a dedication by deeds accepted by the city, and, having so construed the contract themselves, they should now be bound by such construction. McDaniels v. Whitney, 38 Iowa, 60; Thompson v. Loche, 65 Iowa, 432.
2. waiver or S£m0N<w The appellant further contends that there was a waiver of the condition or agreement because the appellee accepted the deed of the land, and executed and delivered the notes and mortgage, when he knew that the city had not accepted the streets. Before executing the papers he had been advised by the appellant’s agent, through whom he bought the land, that the acceptance of the streets by the city was merely a matter of form, and that it would soon be procured. He thereafter forwarded the payment agreed on, together with the notes and the
parties that there should be no merger. Wickersham, v. Reeves & Miller, 1 Iowa, 413; Lyon v. McIllvaine, 24 Iowa, 12.
The case is reversed and remanded.