186 Iowa 784 | Iowa | 1919
On August 19, 1915, the plaintiff and defendant Belle Holliday entered into a written contract for the sale of certain real estate, which contract was to be performed March 1, 1916. Though plaintiff’s wife .and defendant’s husband signed the contract, the defendant’s husband, E. B. Holliday, did not obligate himself to pay for the property. The vital part of the contract follows:
“Said W. A. Smutz agrees to convey his home in Van Burén County, Iowa, consisting of (5%) five and one-eighth acres (more or less) to Mrs. Ed. R. Holliday for the sum of ($6,000.00) six thousand dollars, ($100.00) one hundred dollars to be paid down on contract, ($900.00) nine hundred dollars on March 1,” 1916, ($5,000.00) five thousand dollars to be secured by mortgage March 1, 1916, on delivery' of deed for the land, the mortgage to bear 6 per cent interest, and to be given for (5) five ,yeai*s, interest to be paid semi-annually.”
The contract was not carried out; and in April, 1916, plaintiff sold the premises covered by the contract at public sale, for $3,250, and made conveyance thereof at that time to the purchaser, one Bent. Thereafter, plaintiff bi’ought this suit for damages, claiming that defendant contracted to purchase the real estate for $6,000, and did not carry out the contract, and that he was damaged thereby in the sum of $2,650. The answer admits the signing of the contract, but claimed that appellant had committed a fraud by representing that the premises were worth $6,000, when they were not worth over $3,000, arid asked that the contract be reformed. All other allegations of the petition were denied. The equitable issue was transferred to the equity side of
It appears that defendant Belle Holliday paid $100 down, but did not take the property, and paid no further sum on it. It also appears that, at all times covering the period in regard to this transaction, plaintiff was a married man. There is no evidence that either plaintiff or his wife ever tendered a deed to Mrs. Holliday, and there is no evidence in the record as to the attitude of plaintiff’s wife as to whether or not she was willing to sign the deed. The plaintiff himself, as a witness, sought to testify that she was willing; but objection thereto was sustained, and there was no exception. Plaintiff testified that he was willing to convey, but did not show or testify that he was able to do so. The motion to direct a verdict in favor of defendant Mrs. Holliday, which the court sustained, is on substantially the following grounds: that the evidence fails to show that plaintiff ever tendered conveyance, or performance of his part of the contract, and that the evidence does not show that plaintiff was ready, willing, and able to perform his part of the contract on March 1st. It is claimed that the trial court based its ruling upon the principle announced in Nelson v. Wilson, 75 Iowa 710, holding that no action at law could be maintained by plaintiff without first ten
The facts relied upon by appellant as a waiver, or as excusing tender, are that, on February 26, 1916, defendant Mrs. Holliday sent plaintiff the following letter:
“Dear Sir: Eeceived your letter the other evening, will say in reply that it will be impossible for us to get money on my part of mother’s place for it is not divided & you remember we said we would hafto depend on the place being sold. Why couldn’t you get the money from the bank on the place then you could rent the place & get the Ints. & then if the place was sold soon we would take it, but if you need the money before the place here is sold, if you found someone else would give you your price for your place you could sell it to them. I hate it that the place was not sold but things like this happen to the best of people sometimes. I think you could get the money on your place better than I could get it for I don’t have nothing to give security on for. it would be impossible for one to give it on my part of the place as it isn’t divided & I will just hafto be patient until it is sold. You could rent the place then you wouldn’t be losing anything. There was several that wanted to rent it from us but we had promised you we would not rent it so we done as we agreed as far as we could so I don’t think you will have any trouble renting it. There is no use for me to try to get any money for T can
On February 28, 1916, plaintiff sent to defendants the following letter:
“Fairfield, la., Feb. 28-16.
“Mr. and Mrs. Ed. Holliday,
“Kind friends:
“I reed a letter from the Hillsboro Savings Bank today saying Ed had turned over the key and that you were going to forfeit the $100.00 you paid on the place. Now I don’t want you to do that, as I have bought up here and I certainly have gave you the best of terms on that place, now for the payment you can give me your note with security for it, that certainly is as fair a proposition anyone could make. Now I want you to reconsider this, and not be too hasty in your answer, think it over one day at least, then let me hear from you direct.
“Yours. Respectfully,
“W. A. Smutz.”
And on March 2d, after the time for performance had expired, defendant Mrs. Holliday wrote plaintiff, acknowledging the receipt of his of the 28th, and that they had thought the matter over and decided to let it go. The property was sold, as before stated, and in July, 1916, this suit was brought. Plaintiff testified that, after the first of March, he tried to sell the place to three or four other people; that his wife had no interest or ownership to the title in the property, other than the fact that she was his wife; that, after the first of March, he had a conversation with Mr. Holliday, and tried to get him to take the place, and