167 Iowa 266 | Iowa | 1914
The parties hereto entered into a written contract whereby the defendant sold to the plaintiff; one hundred and sixty acres of land at $140 per acre, and whereby the defendant agreed to accept payment therefor in the following manner: (1) A house and lot at valuation of $8,000. (2) A note of $2,100, signed by-Walter Fitzgerald et al. (3) A note of $2,200, signed by Walter Fitzgerald et al. (4) The balance of the purchase money to be paid in cash and in the assumption of a certain incumbrance upon the farm. The contract was entered into February 17, 1913, and was to be performed March 1st following. Nothing was done by either party on March 1st or March 2d. On March.3d the defendant formally repudiated the contract'and served notice of rescission upon the plaintiff, with full tender. The plaintiff brought this action, and the defendant pleaded a rescission.
Various grounds of rescission are urged, as follows: (1) The house and lot constituted the homestead of plaintiff and his wife. The plaintiff’s wife did not join in the contract. It is urged, therefore, that the contract lacked mutuality at this point. (2) It is further urged that the note of $2,100 was usurious, in that the principal part of its amount consisted of usurious exactions; that the makers thereof had so notified the defendant, and threatened defense. (3) The written contract represented the $2,200 note to be secured by a first mortgage upon real estate, whereas in fact such mortgage was inferior to incumbrances amounting to $3,000. (4) That the defendant was overreached, and that the contract was unconscionable, in that the house and lot in question was not worth approximately $8,000, and in that the transfer
I have the leases, my deed and the mortgage of your land made out, and I am ready to close up the deal as soon as I examine your abstract and you are ready. Kindly advise me.
We find nothing in the foregoing which indicates in any way that the plaintiff’s wife had signed either the deed or the contract. Nor is there any other evidence tending to show that the plaintiff’s wife bound herself to the defendant in any manner to the performance of her husband’s contract. The ratification is therefore without support in the evidence. The trial court, therefore, properly dismissed the petition. We may say, further, that the case is one wherein specific performance might well be denied on other grounds.
Specific performance, therefore, was properly refused, and the decree below is accordingly — Affirmed.