In March, 1890, the defendant gave to the United States Investment Company his promissory note for the sum of two hundred and fifty dollars, payable on the first day of January, 1892, with interest at the rate of six per cent, per annum.. The note was transferred to the Citizens National Bank of Grand Island, Nebraska. In December, 1893, that bank failed, and tbe plaintiff was appointed its
I. The appellee has filed an additional abstract to which there is no response, in which he denies that the appellant’s abstract contains all the record in the case. Some exceptions to rulings which were omitted from the abstract of the appellant, are given, and statements are made as follows: “This abstract and abstract of the appellant, do not contain all the evidence. This additional abstract will enable the court to partially understand the case, and it may be submitted, so far as the single point on instruction 18| is made, without a transcript.” The abstract of appellant purports. to contain all the evidence introduced on the trial, and, if it does not, the appellee should have set out all the omitted parts, or show some reason for not doing so. The failure to set out evidence in the additional abstract, taken with the statements which we have quoted, shows an intention to waive all question as to the sufficiency of the abstract, to present the questions which are raised by the paragraph of the charge referred to, and no objection to the abstract is made in argument. Therefore, we shall treat it as sufficient to enable us
II. Paragraph 18f of the charge to the jury is as follows: “The jury are instructed that, under and by the terms of the written contract made between the United States Investment Company and the defendant, in connection with the note sued on in this case, said United States Investment Company, on default of payment by the defendant, of any of the notes given by virtue of said contract, became entitled to the right of possession of the land sold, and the contract became utterly null and void, so far as said company was concerned, and said property reinvested in said company, and they are entitled to hold all money received under said contract from defendant as a forfeit, but said company could not hold defendant liable upon any note or notes in default; and if you find, by a fair preponderance of the evidence, under these instructions, that the Citizens National Bank of Grand Island, Nebraska, at the time it is alleged it purchased the note in suit, had knowledge of the contract above, or bought said note after maturity, or for no valuable consideration, then plaintiff cannot recover in this action, and your verdict must be for the defendant. The notes sued on are part of the contract for the conditional sale of lots in an addition in Grand Island, Nebraska, and must be construed together. This contract gives the payee of the note, the investment company, the right to forfeit the payments now made, and keep the lots as their only remedy, if the notes given for the purchase are unpaid, or, if any of them are unpaid; and they are from that time without consideration. The company having drawn their contract with the absolute terms that it becomes void without any other condition, they cannot collect the notes unpaid when default occurs.” The contract referred to provides for the sale to the defendant of
It is argued on the part of the appellee that the contract falls within section 8652 of the Code, which is as follows: “When the terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party in which he had reason to suppose the other understood it.” But the theory thus presented is not the one on which paragraph 18-| of the charge was given, and we do not find anything in the record to sustain it. The intent of the parties must be gathered from the language of the contract, and the real question presented for our determination is whether that provides that the failure of the defendant to pay any of the notes given as a part of it had the effect to terminate the contract and his liability on the note. If it does, then the contract is unilateral, to be performed, or not, as the defendant shall elect. It is well settled that such contracts may be made; but, before a contract can be held to be of that character, it must appear clearly and satisfactorily that the parties to it so intended. Barrett v. Dean, 21 Iowa, 426; Nowlin v. Pyne, 40 Iowa, 168. It is the general rule that a stipulation, in a contract for the sale of land, that it shall be void in case the purchaser
It follows, from what we have said, that the paragraph of the charge which we have quoted was erroneous, and the judgment of the superior court is therefore reversed.