126 Iowa 528 | Iowa | 1905
The contract of defendants to convey' certain specified 'land in Missouri to the plaintiff, then a resident of Iowa, was made on the 10th of September, 1902, defendants purporting to act, however, as agents of an undisclosed principal, and subject to the owner’s approval. By its terms $2,000 cash was to be paid on the execution of the contract, and the receipt of that amount was acknowledged. It was provided that on February 1, 1903, the plaintiff should malee a further payment of $3,100, assume a mortgage of $2,400, and give a mortgage back for the balance of the purchase price ($4,500) ; and that the defendants should convey, or cause to be conveyed, the tract of land described, to the plaintiff, furnishing him “ an abstract of title, showing from them, or from whom the deed is to come, a good merchantable title.” The plaintiff was also to have ten days in which to ex.amine the title and return the same to the defendants, together with his objections, which the defendants should have a reasonable time thereafter to cure, the nature and kind of objections to be taken into consideration in the length of time to be given to the defendants for curing and remedying the same. It was also provided that possession was to be given to the plaintiff on the 1st day of February, 1903.
Tbe place fixed for tbe performance of tbe contract was at the office of defendants in Kansas City, and as tbe 1st of February, the date of performance named in tbe contract, fell on Sunday, plaintiff appeared there .on Saturday, having with him a draft for $3,100, tbe amount of the cash payment to be made on that date, and professed to be ready to carry out tbe contract. He bad already learned, however, that the land belonged to one Mrs. Gaines, for whom her husband seemed to be acting as agent; and during tbe day plaintiff sought out Mr. Gaines for tbe purpose of negotiating with him for tbe purchase of such feed as there might be on the farm. -Gaines, however, declared that he and his wife would not surrender possession of the premises nor execute a deed thereto until March 1st, whereupon plaintiff took Gaines with him to defendants’ office for the purpose of having the situation as to the title and right of possession of the farm cleared up. After a private interview with Gaines, one of the defendants admitted that he was not ready to make or secure a deed at once. There were further negotiations'between the parties, and it appeared by a preponderance of the„evidence that plaintiff still professed on the 2d of February, at defendants’ office, to be able and willing to carry out the contract on his part, provided defendants were ready to perform on their part.
The facts about defendants’ ability to make title and transfer possession are substantially these: Prior to the execution of the contract with plaintiff, defendants had made a contract with Mr. and Mrs. Gaines, by which, in consideration of a cash payment and a promise to pay the balance of the purchase price on or before March 1, 1903, Gaines and his wife agreed to convey the property and give possession thereof to these defendants on or before that date. Some point is made as to the effect of the stipulation that the deed would be made and possession given “ on or before March 1st,” and it seems to be ■ claimed for defendants that they were entitled to the possession and the deed on February 1st,, should they demand it, and pay the balance of the purchase price. But there is nothing in the contract to justify such a construction. It was not stipulated that Gaines and wife would surrender possession to defendants before March 1st, if demanded, and the balance of the purchase money paid. And, plainly, defendants were not in a situation to compel performance of the contract until March 1st. It appears, therefore, that defendants had .agreed in a contract, in which time was the essence, that on the 1st day of February they would transfer possession, and makei or cause to be made a deed which would convey complete and absolute title to the plaintiff, while on that date they had simply an executory contract for the purchase of the land from Gaines and his wife, under which they were not entitled to possession and
The decree of the -trial court is correct, and it is affirmed.