181 Iowa 992 | Iowa | 1917
“Prior to delivery of bonds to us, you are to furnish us full certified copy of records of all proceedings had preliminary to and authorizing the issuance of said bonds necessary to satisfactorily evidence their legality to our counsel.”
There is the further statement that there is given over therewith a check for $1,000, “to be held by you as a guaranty of good faith, said check to be returned to us forthwith in case said bonds are not legal to the satisfaction of our counsel, without expense to us.”
There is a controversy over whether the amount of
The theory of the defendant is that this opinion is reviewable, and that it was rightly disregarded because the issue is in fact legal. The trial court proceeded as it would have if no contract provision making the attorney’s opinion a factor existed — treats that provision as redundant and surplusage. It may not so be dealt with. Haney-Campbell Co. v. Preston C. Assn., 119 Iowa 188, at 192, 193. And see Butler v. Tucker, 24 Wend. (N. Y.) 447; Barton v. Hermann, 11 Abb. Prac. N. S. (N. Y.) 378; Gray v. Central R. Co. of N. J., 11 Hun (N. Y.) 70; Boyd v. Woodbury County, 122 Iowa 455, 458. The point is as well stated by the Supreme Court of Nebraska in Thurman v. City, 90 N. W. 253, a bond bid case, as it is anywhere. It is there said that, where a party stipulates that his contract of purchase shall be subject to the opinion of his attorney as to the title to or legal status of the thing to be purchased, the plain purpose being to make his act dependent upon the personal opinion of his legal adviser, the sole requirement is that such legal adviser in fact pass upon the subject and give his honest opinion, and the merits of an honest opinion actually given are not subject to review — that his decision is conclusive, provided he really passes upon the question and reaches a conclusion honestly, whether his conclusion is right or wrong.
The question is not whether the buyer “ought to be,” but whether, acting in good faith, he is, satisfied. Inman Mfg. Co. v. American Cereal Co., 124 Iowa 737; Singerly v.
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It is not disputed that counsel, to whom the matter was submitted, gave it as their opinion that the $10,000 bond issue was not legal. There is neither claim nor proof that the opinion is arbitrary and in bad faith, unless that is made out by the fact that counsel for appellee and the trial court differ from that opinion. Indeed, the only argument here is that the opinion is and was held to be an erroneous one, and therefore cannot control. Reliance is placed upon Hoffman v. Colgan, (Ky.) 74 S. W. 724. It does not rule this case. It turns wholly on the status of an opinion founded on a mistake of fact. In its essence, it is a rightful decision that, when it would presume fraud if the giver of the opinion knew what the true facts are, therefore it should rather be presumed that the opinion would have
People v. Alameda County, 45 Calif. 395, seems to us to have no applicability. It holds, on a motion for writ of mandamus on pleadings, that it shall be tried as a question of fact whether a petition alleged to have been presented to the board of supervisors was signed by as many as 1,355 persons who were, at the time of such signing, qualified electors of the county.
In Pope v. Porter, (N. Y.) 7 N. E. 304, at 306, the
In Pacific Tim. Co. v. Iowa Windmill & Pump Co., 135 Iowa 308, there was an order for a car of lumber. We Said that, where the consideration to be paid is entire, the contract must be so held, although the subject of the same consist of several distinct and independent items; that the simple fact that the dimensions of the timber were specified and the prices per thousand named would not make the contract a divisible one; that such an order contemplates and intends that each and all of its parts and the consideration shall be common to each other and interdependent; that the question is largely one of intention, and, where it reasonably appears from the language of the contract, or from its terms, that the parties intended a full and complete performance should be made with reference to the subject matter of the contract by one party in consideration of the obligation of the other, the contract is entire. In Smith v. Lewis, 40 Ind. 98, at 101, it is said that, wherever the failure as to a part would materially defeat the objects of the contract, and would have affected the sale had such failure been anticipated, the contract is entire.
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We conclude that plaintiff is entitled to recover as prayed, because the $10,000 issue was invalid in the opinion of its attorney. — Reversed.