196 Iowa 363 | Iowa | 1923
I. The contract was in writing. The subject-matter thereof was a farm of 240 acres, near Ida Grove. The agreed purchase price was $290 per acre. The contract was entered into in May, 1920, and was to be performed on March 1st following. The record is very voluminous. The evidence on the trial was directed largely.to two issues: (1) Whether the plaintiff complied with the contract on his own part; (2) whether the contract was induced by false repi*esentations.
It will not be practicable for us, within the appropriate limits of an opinion, to discuss the details of the evidence on these questions of fact. We have read the evidence carefully, and are in accord with the finding of the trial court thereon.
The defendants contend that this variance was fatal to an enforcement of the contract, and that the court was not warranted in reforming the contract. The variance had no substantial or material effect upon the rights of the purchaser. We so held in Kladivo v. Gaines, 191 Iowa 943; also in Kilby v. Murray, 194 Iowa 189.
It is very clear that plaintiff’s action as for specific performance was prematurely brought. Plaintiff is in error in contending otherwise. Plaintiff could properly have brought his action for damages forthwith, upon a repudiation by the defendant. By the bringing of such an action, plaintiff would waive the right of specific performance. The plaintiff had no right to specific performance at any time prior to March 1st. Manifestly, therefore, he had no basis for a suit for specific performance prior to that time. If the defendants had been ready and willing upon March 1st to perform, they could thereby have defeated the plaintiff’s suit at his own costs. In such event, they would have been entitled necessarily to an abatement of the action. But the defendants elected to resist performance, and to defeat the action upon the merits. The fact that plaintiff had brought his suit prematurely became thereby of minor consequence. The old rule that an action prematurely brought must in any event be abated on that ground has become obsolete. The prevailing present rule is that, if only time is wanting to mature the action, and if such time has elapsed when an issue is presented and tried upon the merits, the action need not be abated. The plaintiff will be permitted to file supplemental pleadings, and to proceed with the trial of his case on
No other legal questions are presented for our consideration. The predominating questions are those of fact. We are content with the finding of the district court upon these. The decree is, accordingly, — Affirmed.