35 Iowa 451 | Iowa | 1872
I. It is not denied, and indeed cannot be, that it was understood at the time of the subscription, that the church should be erected upon the lots which the defendant proposed to give. Upon this subject C. P. Reynolds, the pastor in charge of the congregation, and who acted for it in procuring the subscription, testified as follows: “ He raised some objection in the first place to giving any thing. That he was afraid it might not succeed. That
The question made is as to whether it was agreed that this condition should be incorporated in the subscription. Respecting this the testimony is conflicting, but it seems to us the preponderance is with the defendant. The defendant testifies as follows: “ The lots were to be used for the purpose of building a church on them, and' this was a condition which was to be made a part of the written subscription. He agreed that if I would sign, that they would build on it the next summer a church, and use the lots for that purpose, and in case they did not, that the subscription should be null and void. Mr. Reynolds said at that time he would make these conditions a part of the subscription, and he accepted of it in that way.” To the same effect is the testimony of W. M. Ellis, except that he states the promise of Reynolds to put this condition in the subscription was after Barker had signed his name. Reynolds denies that any such agreement was made. The cause is here for trial de novo, and it seems clear to us that the position of defendant is sustained by the weight of the evidence.
We are the more readily brought to this conclusion from the reasonableness that such a condition should form part of the written subscription, inasmuch as it is admitted that it was upon that condition that the subscription was made.
II. From the evidence it appears that plaintiffs erected foundation posts upon the lots designated by defendant,
It follows that the judgment of the circuit court must be
Reversed.