16 Iowa 216 | Iowa | 1864
Plaintiff claims that the contract for the purchase of the land was abandoned and rescinded by the assent of the parties; and that he is entitled to recover whatever he had paid thereon, including the value of the city lots. Defendant, on the other hand, insists that the contract of sale was not rescinded in toto, but that the parties agreed that defendant should surrender the notes, and
The errors assigned relate principally to the action of the Court, in giving and refusing certain instructions. The following instruction asked by plaintiff, will sufficiently indicate his view of the law, applicable to the case made by the testimony: “ If the bond and notes in question were rescinded by the consent of the parties, and the contract for the purchase of said lands thereby became abandoned, the defendant would be liable to refund to plaintiff the money and the value of the lots (if defendant had incapacitated himself to reconvey the same), unless the jury believe, from the evidence, that the parties, at the time of the rescission and abandonment, made an express agreeinent that defendant should be discharged from all obligation to refund said money, or make such a reconveyance, or to pay the value ■ of the same; and that the burden of proof is on the defendant to establish such agreement.”
This and other instructions embodying the same principle were refused, and instead thereof the following were given:
“ The rights of the parties depend upon the real contract, agreement or understanding, at the time of the alleged rescission. in the fall of 1859. Plaintiff claims that the agreement was to rescind the prior contract in loto. If this is true, then defendant would be liable, if no agreement or understanding to the contrary was made, to restore to plaintiff what he had before received on the contract, or the value of it with interest, and plaintiff could recover. But if there was au agreement or understanding that he was not to be liable for what he had before received, then he woiild not be liable therefor.
“ On the other hand, the defendant claims that he made no agreement to rescind the contract in toto, but that he only agreed >to release the plaintiff from future perform
It will be readily perceived that any real or apparent difference in these several instructions, arise from the different views of the actual agreement or understanding of the parties at the time of the alleged rescission. If the contract was rescinded by the mutual and voluntary consent of the parties, the law implies, in the absence of any agreement to the contrary, a promise on the part of the vendor (the defendant), to refund to the plaintiff (the vendee) the money or the value of the property received upon such contract. An express agreement is not necessary, but each party is to be restored to his former rights, and placed in the situation they severally occupied before the original contract or agreement was made. White v. Wood, 15 Ala., 358; Connor v. Henderson, 15 Mass., 319; Bolter v. The Bank, 3 Comst., 88. And this was the law in substance, as stated in the first part of the instruction given by the Court above quoted. If it be claimed that the instructions asked and refused are but the statement of the same rule, then there was no error, for it was given, though in a different form, and the Court was not bound to repeat it. Moffitt v. Cressler, 8 Iowa, 122. The instruction refused, however, asserts that the defendant would be liable, unless
II. But plaintiff proposed to prove that after his purchase of the land he entered into the possession, and made, before the alleged rescission, large and valuable improvements thereon. This testimony was rejected, and such rejection is now assigned as error. The admissibility or rejection of evidence very often depends upon the actual facts or circumstances developed at the time it is offered. In this instance, it was offered after both parties had closed their testimony. The plaintiff alone testified to the circumstances attending the rescission. The verdict being for the defendant, the facts proposed to be established, could only be material as tending to show the probable agreement, or the improbability, that plaintiff would surrender, without compensation, the value of all such improvements; for, of course, if the verdict upon the main issue is correct, no question could be made as to the right to recover for the labor bestowed, or improvements made upon the land. And, as tending to show the agreement, under the circumstances, it was equally inadmissible. There was no conflict in the testimony. Plaintiff was allowed to state his own version of the transaction, and was in no manner contradicted. The true inquiry was, what was the contract, or what liability devolved upon defendant, according to plaintiff’s own showing. The agreement, in all its parts, was thus established, and the jury had nothing to do with what it ought to have been, nor with what contract plaintiff would be likely to make. They had to. determine what defendant impliedly or expressly agreed to do, and not what plaintiff would have probably required Of him.
It only reinains for us to remark, that we have examined carefully the case of White v. Wood, 15 Ala., 358; Gillett v. Maynard, 5 Johns., 85; Howard v. The W. & S. Railroad
Affirmed.