179 Iowa 377 | Iowa | 1916
“It is hereby agreed by and between the parties, that in the event of the failure of either party to fulfill his part of the contract, the party failing to comply with his part of the contract shall pay to the other the sum of $2,000 as liquidated damages for failure to comply with the terms thereof.”
It appears that, at the time this contract was executed, the defendant paid to the plaintiff $940 of the amount stip
The record discloses the contract made, as alleged by the plaintiff, and that, at the time of the execution of the contract, the defendant paid the plaintiff $910, instead of $1,000. The undisputed evidence shows that, in February, 1911, in a hotel at Washington, plaintiff and defendant had a conversation touching the carrying out of this contract;, that the defendant told the plaintiff at that meeting that he had not yet sold his farm, and did not have the money to meet the contract at the time, and wanted to know if he could sell the farm back to the plaintiff, and plaintiff told him he would not buy it back; that, subsequently, in the same month, another conversation occurred between them, in which there was some talk about extending the time for settlement; that plaintiff testified:
“We had some talk about his wanting an extension of time of settlement for a year, to give him a chance to sell his farm. He said he would like such extension if he could not sell the farm back to me. I said I would see if I could give him a year.”
Plaintiff further -testifies:
“About the 15th of March, I saw him again at his home. I asked him what he was going to do about the farm. He said, U can’t do anything with it. You have to rent it or do the best you can with it.’ He said he was not able to discuss the question. I went ahead and rented it to Joseph Wehr for one year. At the time he was lying on a couch. I believe he was sick.”
This Avas all the plaintiff’s testimony. Defendant testified, touching the conversation had on the 15th day of
“I told him I was sick, and not able to do anything. He said he thought it was time for me to do something, and for me to come to some judgment. I said, ‘When I get out of bed, I will talk to my attorneys, and then I will tell you what I am going to do.’ There was nothing said about re-renting or reselling. I had no knowledge it was rented until I heard it was rented to Wehr. There has never been any notice of the forfeiture of the contract served on me. I told him I was not going to do anything about the place until I got out of bed and saw my attorneys; that I was not able to talk business.”
This is all the testimony. It' appears that, on the 20th day of March, 1914, the plaintiff leased this land in controversy to one Wehr, the lease expiring the 1st day of March, 1915; that, on the 28th day of March, 1914, he sold the land to one I. K. Beal, and assigned to Beal the Wehr lease. Upon this record, the court dismissed plaintiff’s petition, and entered judgment for the defendant for the amount paid by the defendant on the contract; and from this, plaintiff appeals.
AVhile plaintiff assigns many errors for reversál, they may be summed up in this: First, the decision is not sustained by the evidence, and is contrary to the evidence; second, the decision is contrary to law. There are some other errors suggested, to which we will advert later in this opinion.
We have, then, a record in which the original contract was made between these parties to be performed on the 1st day of March, 1914; the contract continued in full force and was recognized by both parties as a binding contract at all times up to the 1st day of March at least, at which time, by the terms of the contract, each was called upon to perform his part of the contract. We may assume this, although the time was not made the essence of the contract. A few days before the 1st of March arrived for the consummation of the agreement, the parties had a conversation in which the defendant, without having any demand upon him for performance, because the time for performance had not yet arrived, told the plaintiff that he did not have money to meet the contract at the time; that he had not yet sold his farm, and wanted to know if he could sell back to the plaintiff the land covered by the contract. Subsequently, and in the same month, and before the time of the performance of the contract, they had a further talk about extending the time for settlement, that the defendant might have a chance to sell his farm and meet the payments required of him in the contract; and in this conversation he also expressed himself as wishing an extension of time, that he might sell his farm to meet the payments. In neither of these conversations, as detailed by the plaintiff, did the defendant repudiate the contract. He simply said he would be unable to meet the contract on the 1st of March,
“There was nothing said about renting or reselling the property. I had no knowledge it was rented until I heard it was rented.”
The contract provides that the conveyance shall be made by warranty deed on or about the 1st of March, 1914, accompanied by an abstract of title showing title in fee simple and perfect of record, without encumbrance, except as provided in the contract. There is no evidence that the plaintiff prepared or tendered to the defendant at any time, on or about the 1st day of March or otherwise, a warranty deed as provided in this contract, or an abstract of title showing title in fee simple and perfect of record, without encumbrance, except as provided in the contract. There is no evidence that the plaintiff ever demanded performance of the defendant of the contract at any time, except as dis
Tn the case at bar, the plaintiff, without any unqualified refusal on the part of the defendant to perform, without demand on the defendant to perform, without notice to the defendant that he would insist upon a performance, disposed of the subject-matter of the contract, and placed it out of his power to perform. The plaintiff breached the contract, the defendant acquiesced in the breach, and therefrom followed what in law amounts to a mutual abandonment of the contract. The only right left was the right to be restored to his position as it was before the contract was made.
Where one party is ready, able and willing to perform, and tenders performance, and the other refuses to accept the tender of performance, or perform, the party tendering may consider the contract as rescinded and no longer binding upon him. He may consider it breached by the party who thus refuses to perform. Where the default is such as to justify the party not in default in rescinding and ter- . minating the contract, the defaulter is presumed to assent to such termination. The circumstances must be such as manifest an intention on the part of the party claimed to be in default to abandon the contract, or no! to comply with its terms in the future. The evidence does not disclose this condition of mind on the part of the defendant.
the answers would have been, had the witness been permití ed to answer.
We find no reversible error in the making of the record, and the cause is therefore — Affirmed.