172 Iowa 743 | Iowa | 1915
The parties hereto entered into a land contract on June 10, 1912/whereby the defendant agreed to sell and the plaintiff to buy a certain farm of 120 acres in Hamilton County, at an agreed price of $135 per acre. $500 was paid by plaintiff at the time of the execution of the contract. Performance of the contract was to be had on March 1, 1913, and possession was to be given at such time. The plaintiff, however,, had the privilege of entering upon the farm for the purpose of plowing in the fall of 1912. The contract included the following provisions:
“Second party can pay $1,170 cash on March 1, 1913, and give second mortgage for balance of $4,000 for 10 years at 5% interest from March 1, 1913, or give first mortgage for $7,500 for 10 years with interest at 5% from March 1, 1913, and 1% commission, payable annually till all is paid. And the party of the second part shall also annually pay all taxes and assessments that may accrue on said property as they become due, or before they become delinquent, and including the tax for the year 1913. . . . But if such sums of money, interest and taxes are paid as aforesaid, promptly at the time aforesaid, the party of the first part will, on receiving said money and interest, execute and deliver, at his own cost and expense, a warranty deed of said premises, as above agreed, and abstract showing perfect title, clear of any incumbrance.”
The plaintiff’s testimony, tending to show repudiation by defendant on February 28th, was as follows:
“I had a conversation with Mr. Swigart, sometime after I was on this land in February, in regard to this abstract.” Q. “What did he say to you in regard to your taking this land or not taking it on the abstract that he had given you ? ’ ’ A. “I either had to take the papers, the abstract, as it was there, or-get off the place.” Q. “Did he, at that time, offer to fix this abstract up — was there anything said about that at that time?” A. “No, sir, I don’t think so.” Q. “Was there anybody present at that time, during the conversation, in which he said that you could take this abstract or get off the place?”. A. “Yes, sir; my brother was present. I got off after that.”
Elva Wright, brother of plaintiff, testified as follows:
“I recall hearing a conversation between him-and Mr. Swigart, the defendant here, on this farm, some time in February, 1913. Mr. Swigart wanted to close the deal, and my brother told him he would not with that kind of a title'. He told him if he wouldn’t, to get off the place. That was near the latter part of February, I think. . . .” Q. “You just repeat that conversation; tell us what Swigart said, then what*746 your brother said. ” A. ‘ ‘ He asked him if he would settle for the place. My brother told him ‘no’, not then without he had a different abstract; that was no good, he told him — he said that Covil said that. No particular abstract was referred to. The papers on the place — Swigart told him that if he did not settle by the 1st day of March to get off the place. That is all I remember hearing.” Q. “Did your brother say that he was ready to go ahead with the deal ? ” A. “ If he could get the papers.” Q. “What papers did he want?” A. “The abstract. ’ ’
In view of the mutual abandonment, each party was entitled to be put in statu, quo as far as possible. This necessarily included the return to plaintiff of the $500 paid. We think he was, for the same reason, entitled to the $60 paid for plowing. This was contemplated by the contract, and the expense was incurred pursuant thereto. Not only so, but its benefit accrued to the defendant as the party holding the land.
The more difficult question is as to whether, under the circumstances, plaintiff could properly recover the item of $137.50. It was not an expense contemplated by the contract, nor did it operate in any way to the benefit of the defendant. Its recovery by plaintiff was not a restoration of the status quo. While it saved plaintiff.from loss, it imposed the loss upon the defendant. On the question of the breach and abandonment of the contract, the parties stand on an equality, and there is no legal reason why this loss should be transferred to the defendant. Whether it would have been a proper item if the plaintiff had been free from default, we need not consider. If the plaintiff shall elect to remit from his recovery the item of $137.50 and to take an affirmance for the balance of his judgment, the judgment below will be conditionally affirmed; otherwise it must be reversed; plaintiff’s notice of election, if any, to be filed within 60 days of the filing of this opinion. — Affirmed on condition.