178 Iowa 943 | Iowa | 1916
In this action, plaintiff seeks to enforce such rescission. He tenders a reconveyance of the Canada land, and asks that defendants be required to reinvest him with the title to the Iowa land, or, upon their failure to do so, that he have judgment for his damages.
The defense made is in substance as follows': That plaintiff employed Willenborg as his agent to sell the Iowa land, at $130 per acre. Having secured the alleged agency, it is the further theory of the defense that Willenborg and defendants entered into an- agreement between themselves whereby, if Willenborg could trade or.exchange a half section
“This agreement made and entered into this 25 day Jan 1912 by and between C. B. Willenborg of New Hampton Iowa. Party of the first part and John H. Rohr of Grinnell Iowa party of the second part to wit the party of the second have this day sold to the party of the First Part his 120 A 2 miles of Iona Iowa for the sum $15,600 subject to $10,000 mortgage with the party of the part is assume party of the second part agrees to bye of the party of First part the east yz of See 18 R 11 T 11 about 50 Miles east of Winnipeg for the sum of $5,600 the party of the first agrees to lone to the party of the second the sum of $3,000 for 6 for 3 years. The party of second part is to let the party of First no on or before Feb 15-1912 if he wants this lone of $3,000 This dale is to be closed on or before March 1-1912.
“C. B. Willenborg
“John H. Rohr”
With this agreement, Willenborg returned to New Hampton. Brown and the Shaffers executed a conveyance direct to plaintiff, but this was done at the request of Willenborg, who proposed also that he would have plaintiff convey to them the Iowa land to hold until he could find a buyer for it, and thus enable him to pay them the agreed consideration of $5,000 for the Canada land. Willenborg and Brown then went to Grinnell together, where the exchange of title papers was effected. Defendants deny that Willenborg was their agent or representative in the transaction, and aver that
The evidence as a whole quite clearly' established the fact that the half section of Canada land is low, wet and swampy, covered to a very material extent with water, and interspersed with a growth of trees and brush, and incapable of being made desirable agricultural land- except by a system of ditching and clearing.
I. It will be seen from the foregoing that the merits of the eontroversjr turn largely upon the nature of the part played by Willenborg. Was he acting for the defendants and in their interests; or as an agent of the plaintiff, representing his interests; or was he a principal, in making this exchange, and looking solely after his own interests?
It appears that plaintiff, desiring to dispose of his Iowa land, first went to Brown’s office for the purpose of proposing a sale to him. Brown happened to be out of town, but Willenborg was in the office, where plaintiff then met him for the first time. Willenborg swears that at that meeting, plaintiff entered into an agreement with him personally, giving him the exclusive agency for 60 days to sell the Iowa land at the list price of $130 per acre. Plaintiff denies that he then, or at any other time, had an agency agreement with Willenborg, or authorized him to sell or find a purchaser for this land. Soon thereafter, according to Willenborg, he told Brown of having secured the agency from plaintiff, when Brown at once responded, “We will trade you a half section of Canada land for it,” and followed this by a suggestion, “You better go down stairs and talk to Mr.' Shaffer about it, too.” The witness further quotes Brown or Shaffer as saying, “We will trade you a half section of Canada land for $5,000.” Willenborg then went to Grinnell, where he
Upon this issue of veracity, we find the preponderance of evidence to be with the plaintiff. That Brown and Willenborg had come to Grinnell for the express purpose of effecting the deal, only to express absolute ignorance of the character of the land they were tendering 'in exchange for property of the conceded value of more than $5,000, imposes only little less strain upon human credulity than that plaintiff, seeking an assurance of the quality of the land before making the exchange of the title papers, should have at once accepted their utter disclaimer of knowledge on that subject as .a sufficient solution of his doubts. Such things may happen, but they are so infrequent that an allegation of that kind will hardly command the credence of the average man
II. Appellants make the further point that, in any event, plaintiff has not acted with reasonable diligence, and should be held, as a matter of law, to have waived his right to a rescission because of unreasonable delay in declaring the same. It is also argued that such delay amounts to laches sufficient to work an estoppel upon his claim for equitable relief.
“The law does not require action to rescind before the defrauded person is reasonably certain that he has been defrauded. If he acts with reasonable promptness thereafter, it is sufficient. The law of laches should be used as a shield and not a sword.” Barron v. Myers (Mich.), 109 N. W. 862, 863.
If this view be correct, the suit was brought in proper time, and the plea of laches and waiver constitutes no defense under the record made. Appellants in argument insist that other information was acquired by plaintiff in the summer of 1912, but we think .the record does not show the fact, nor show the alleged information so acquired.
The fact that defendants have sold the Iowa land makes no such change in the situation of the parties as will bar plaintiff’s right to relief. While they have not the land to reconvey in kind, they must be presumed to have received its value in consideration paid therefor by the purchaser, and there is no pretense that they did not receive and now have as proceeds of such sale the full value of the equity plaintiff conveyed to them — $5,600.
The judgment of the trial court, that defendants pay plaintiff that sum with accrued interest, as well as the further amount of taxes paid by plaintiff on the Canada land, is correct, and must be — Affirmed.