Patrick v. Barker

| Iowa | Dec 16, 1872

Day, J.

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 lots might not be used for that purpose, or might be appropriated to some other enterprise, and that it was not the kind of house he wanted to see built. After talking the matter over I satisfied him that the trustees desired the lots for the church only, and to erect a church building upon them. That they could not claim the lots unless they did erect a building upon them. After thus canvassing the matter he cheerfully subscribed the lots and $50 in money toward the erection of the church.”

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, and were preparing to construct the church building thereon, and that defendant refused to execute a conveyance for the lots other than one containing a reversion to the grantor whenever the lots ceased to be used for church purposes, whereupon the trustees removed the foundation and erected the house elsewhere. It may be conceded that the conduct of the defendant was a breach of his agreement, and that it exonerated plaintiffs from their obligation to erect the building on defendant’s lots. But it did not authorize them to abandon the agreement upon their part and still insist upon a performance upon the part of defendant. They had an option either to perform the agreement upon their part, and compel performance upon the part of defendant, or to abandon the agreement and exonerate defendant from his obligation. They elected to pursue the latter course.

It follows that the judgment of the circuit court must be

Reversed.