217 N.W. 879 | Iowa | 1928
Plaintiffs' principal proposition is that, by virtue of a mutual agreement of the parties, canceling a part of the term, made after the alleged fraud was discovered by defendants, the fraud and cause of action for damages on account of it were waived.
Defendants' claim is that plaintiffs showed them the farm when it was covered with snow, representing that it was well tiled and drained. In reliance on the representation, a lease was executed, December 10, 1925, for the term of two years from March 1, 1926, for the annual rental of $1,046.50, payable in December and February of the rental year. The lease was signed by the defendants, husband and wife. It gave a lien upon all their property on the premises, whether exempt or not, for the whole amount of the rent. Defendants discovered the fraud during the planting and cultivating season of 1926. On September 11, 1926, all the parties met, and signed an agreement indorsed on the lease, whereby the plaintiffs agreed to cancel it on March 1, 1927, provided all its terms "have been complied with except the payment of the second year's rent, which is to be canceled." Defendants agreed to surrender the farm March 1, 1927. "All other conditions and stipulations contained in said lease [were] to remain in full force and effect." It does not appear that the defendants, prior to their appearance in this action, ever made any claim of fraud or for damage or offset for any reason. On November 27, 1926, defendants wrote one of the plaintiffs that they could not meet the rent note December first, on account of unexpected storm.
"We hate to have you wait, but it is the best we can do. Are willing to pay interest on note until we get corn hauled." *37
When defendants found out that fraud had been perpetrated, they had an election to rescind the contract, restore what they had received, and recover what they had parted with because of it, or to affirm, and seek relief in damages. They could not both rescind and affirm, nor could they rescind in part and affirm in part. This is the general rule, and we need not discuss the question whether, in the case of a lease such as that before us, its provision as to the second year was so separable that it may be considered as severable, and separately rescinded. See Defielv. Rosenberg,
Defendants urge that the assignment of errors does not sufficiently point out the rulings which raise these or other questions discussed. We think they do. Defendants have not been misled.
On the record before us, the plaintiffs were entitled to directed verdict in their favor for the amount of the note sued on. This conclusion makes it unnecessary to discuss the other propositions argued. — Reversed.
STEVENS, C.J., and De GRAFF, ALBERT, and WAGNER, JJ., concur. *39