Stotts v. Miller

128 Iowa 633 | Iowa | 1905

McClain, J.

Plaintiff alleges that he was employed, in connection with one J. K. Olds, to find for defendant a purchaser for certain described real estate of defendant, on the basis of a specified price per acre, and upon terms satisfactory to defendant, and that the right of said Olds to compensation under the contract has been assigned to him, and he seeks to establish the right of himself and Olds to such compensation by alleging and proving that defendant entered into a binding contract with one Dilenbeek for the exchange of the property referred to for said land of Dilenbeck, situated in North Dakota. The contract between Dilenbeclc and defendant was made “ subject to inspection of' land furnished by each party, if inspection is made within fifteen days. Otherwise, if the land is not inspected at oncer the trade is considered closed.”

i. Sale of land: bSrf”ñss‘ofns; pioof‘ The first error assigned is in an instruction of the court to the effect that the burden was on the plaintiff to establish the failure of defendant to examine the lands of Dilenbeek ™- North Dakota. Dnder the issues the bur-¿en unquestionably was on the plaintiff to make- ' out a binding contract between Dilenbeek and defendant, and it is plain under the pleadings and the evidence that, unless this contract became binding by reason, of the failure of defendant to examine the Dilenbeek land,, there was no binding contract between the parties and no-sale was made entitling the plaintiff to a commission, for it is conceded that defendant refused to accept the Dilenbeek land under the contract between them. As plaintiff’s right, to recover therefor would not be made out without proof that the contract between defendant and Dilenbeek became binding by reason of the failure of defendant to inspect the Dilenbeck land, we think it clear that, to entitle plaintiff to recover, this fact must be established affirmatively by him. The instruction was therefore corróct. Other objections are-made on account of failure to properly instruct the jury that the burden of showing an excuse for failure to inspect theDilenbeck land was on the defendant, but what has just been said disposes of all such objections.

2- ^0”T0I? 0NE elect*1 Complaint is also made of an instruction relating to the effect of evidence tending to show that Olds undertook to-conduct defendant to the Dilenbeek land in North Dakota. for the purpose of inspection, and that, by reason of a storm rendering it impracticable for defendant and Olds to proceed to the Dilenbeck'land, it was agreed between defendant and Olds that other land, as-assumed to be of the same character, should be inspected by defendant for the purpose of determining whether he would accept the Dilenbeck land. The objection made to this instruction substantially is that Olds could not bind the plaintiff by any arrangements made with defendant. But, so far as the plaintiff claims as assignee of Olds, any action of Olds with reference to the earning of a commission would be binding on plaintiff; and,' so far as plaintiff claims in his own right, he would also, as we think, be bound by the action of Olds, for he alleges that the contract was made with him, in connection with Olds, to find for defendant a purchaser, and evidently plaintiff and Olds as joint contracting parties would be bound, each by the action of the other in relation to the subject-matter. Each would‘be entitled to the benefit of the acts of the other, and each musff clearly be subject to any defense under the contract arising out of the1 action of the other with reference to its performance. If Olds, attempting to conduct defendant to the Dilenbeck land for the purpose of having him inspect and accept it under the contract between .him and Dilenbeck, suggested and consented that defendant should examine other lands of the same character, and defendant on making such examination elected to reject the-Dilenbeck land, we do not see how plaintiff can complain. We think, therefore, that the instruction was. correct. •

s. Exchange os property: inspection: rejection. Counsel for appellant further complain of the construction placed by the court on the contract between defendant, and Dilenbeck to the effect that defendant had the right to rejec't the land on inspection without any good reason for doing so, but we think it is well settled that, where parties agree that property shall be accepted if satisfactory, the property may be rejected in good faitb because unsatisfactory, and .that tbe grounds of rejection cannot be inquired into. Inman Mfg. Co. v. American Cereal Co., 124 Iowa, 737. If, therefore, defendant by arrangement with Olds inspected lands assumed by them to be of the same general character and exercised his option under the contract between him and Dilenbeck to reject the Dilenbeck land, the grounds for rejection could not be inquired into by the jury in the absence of any contention that such rejection was not in good faith. That the contract between defendant and Dilenbeck employed language authorizing defendant to reject the Dilenbeck land if on examination he was not satisfied with them seems to us perfectly clear. What object could there have been in providing for such inspection if defendant was bound to take the Dilenbeck land without inspection ?

We find no error in the instructions complained of, and no other errors are urged.

The judgment is therefore affirmed.