58 Iowa 714 | Iowa | 1882
Counsel for the appellant insist, as we understand, that upon the execution of the agreement both the accord and satisfaction became an accomplished fact without the delivery of the mare. The agreement took the place of the old debt or right, and the pending action must be dismissed, and an action brought on the agreement to enforce it, if it was not performed on defendant’s part. In support of this position Hall v. Smith et al., 15 Iowa, 584, and Merry v. Allen, 39 Id., 235, are cited. If the premises are correct it is probable the conclusion is. But the Circuit Court held the agreement was conditional, and that the plaintiff did not absolutely agree to dismiss this action, but that he agreed to do so only upon the defendant’s performance of the agreement on his part. That is to say, the delivery of the mare was a condition precedent to the dismissal of the action, the delivery being the satisfaction agreed upon. We think the ruling of the Circuit Court is undoubtedly correct.
“Defendant claims to be the owner of the mare and colt ■in controversy and legally entitled to the possession thereof. Fie does not plead nor prove a tender of said property, that is, the property claimed by the plaintiff, and the question for you to determine is that of the ownership of the identical property sought to be recovered. If plaintiff is the owner of the mare and colt described in his petition, he can recover if defendant wrongfully took and detains said property; if defendant is the owner he can recover, upless the mare he agreed to deliver to plaintiff is the same inare claimed by the plaintiff; if it is, then he cannot recover if he failed to deliver said mare as provided by said agreement, and plaintiff will be entitled to your verdict.”
The objection made to this instruction is that plaintiff is permitted to recover on the written contract, when no such claim is made in his pleadings and it was made long after the action was commenced. We do not so understand the instruction. Under the instruction the plaintiff must recover, if at all, on the ground stated in the petition that he was the owner of the mare. But there was evidence tending to show the mare'described in the agreement was the same as the one the action was brought to recover, and there was evidence ■tending to show the mare described in the agreement was not the one claimed by the plaintiff. To meet this phase of the case the latter part of the instruction was given, that the defendant could recover, that is, defeat the plaintiff if the defendant was the owner, unless the mare he agreed to deliver was the one claimed in the action, and which the plaintiff owned. If the mare was the same then the defendant could
Affirmed.