55 Iowa 174 | Iowa | 1880
Where land is conveyed under an agreement that it shall be re-sold upon the joint account of grantor and grantee, there is much reason for holding that the grantor retains an interest in the land. We are inclined to think that if the agreement in such case were in writing, and the grantee should refuse or neglect to sell, and should appropriate the land to his own use, the grantor would be entitled to have the agreement enforced in a court of equity. But there is nothing in the agreement set out in this ease from which it can be gathered, even by implication, that the defendant was obligated to sell the land. He had the fullest liberty to appropriate the land solely to his own use, or make a gift or devise of the same, or transmit it to his heirs. Such being the fact it is impossible to say that the plaintiff retained an interest in the land.
The agreement entered into between the parties pertained merely to the purchase-price. It was to be at least $1,650, and in a certain contingency more than that. The plaintiff shows that the contingency has happened. We can conceive that $1,650 was considered by the parties to be the fair value of the land, unless it should be found to be of such a character that it could be sold for coal land, in which event it was supposed it would be worth more. But the defendant made no
The provisions of the Code touching the questions raised are as follows: f
“Sec. 2686. No variance between the allegations in a pleading and the proof is to be deemed material unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be ’shown by proof to the satisfaction of the court, and such proof must also show in what respect he has been so misled, and thereupon the court may order the pleading to be amended upon such terms as may be just.
“ Sec. 2687. When the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, and may order an immediate amendment without costs.
“ Sec. 2688. When, however, the allegation of the claim or defense to which the proof is directed is ■ unproved in its general meaning, it shall be not deemed a case of variance within the last two sections, but a failure of proof.”
No objection upon the ground of variance appears to have been made upon the trial, and we do not think that the verdict should have been set aside unless there was a failure of proof within the meaning of section 2688, above quoted. We
If a person should sue for goods sold at an alleged contract price, and the evidence should show that the contract price was less than alleged, and a verdict should be rendered accordingly, there would evidently not be such failure of proof as would justify setting aside the verdict. The claim would not be unproved in its general meaning; the claim in its general meaning being for the price of the goods sold.
In the case at bar the claim in its general- meaning was for the balance of the contract price of land sold. The evidence showed something due, though somewhat less than was claimed, because the evidence showed the contract price to be somewhat less than was claimed.
If, upon the trial, the defendant had claimed and shown that he was misled, to his prejudice, because the contract averred was different from that proven, the court might, under section 2686, above quoted, have ordered the plaintiff to amend his petition, and imposed such terms as would have been just, and even granted to the defendant a continuance if rendered necessary by the amendment.
But such course not having been taken, and the plaintiff’s claim being proven in its general meaning, we do not think that the defendant can now complain.
If the defendant made improvements upon the land, paid taxes, etc., it seems reasonable that l^e should be compensated therefor. We have no doubt the parties had in mind such reimbursements to the defendant as should leave only the net profits to be divided. While in one sense there was an uncertainty as to the amount that should be allowed, the uncertainty, we think, was not of such kind as to render the contract void.
It follows that, in our opinion, khe verdict was too large by $28.75. If the plaintiff shall elect within thirty days to remit that amount he may have judgment in this court for the balance. Otherwise the case' must be reversed and remanded for another trial.
Modified and affirmed.