71 Iowa 255 | Iowa | 1887
But we suppose the theory of plaintiff was that it was important to prove that he bought the real estate, machinery, and tools. The defendants objected to the introduction of this evidence, and the objection was overruled. We think that it should not have been admitted, especially as there was no evidence that the plaintiff ever took and held possession of the property under it, or that he at any time paid any of the purchase money. It is true, the contract provides that for non-payment of the sums of money agreed to be paid Briggs might consider the contract at an end, and consider the plaintiff as a tenant at will, and have the right to remove him from said premises by a proceeding in forcible entry and detainer. It might seem from this that plaintiff took possession under this contract. But, if he did, we think the evidence shows he did not retain the possession. When he went east, two or three years before Briggs died, he left no one in charge of the property, and he admits in his evidence that he gave up the key of the building to Briggs, and Briggs took possession of the property, and continued in possession until he died. But the plaintiff testified that there were two keys, and that he gave but one to Briggs. We think that, under this state of proof, without any evidence that the plaintiff ever paid a dollar on the agreement, and with the evidence tending very strongly to show that Briggs resumed possession of the property, the written agreement was improperly admitted in evidence.
' For the errors above discussed, the judgment is reversed, and the cause is remanded for a new trial.
Reversed.