Andrew v. Miller
| Citation | 250 N.W. 711,216 Iowa 1378 |
| Decision Date | 24 October 1933 |
| Docket Number | No. 42002.,42002. |
| Parties | ANDREW v. MILLER. |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Warren County; E. W. Dingwell, Judge.
Action for specific performance of contract. From a decree in favor of the plaintiff, the defendant appeals.
Affirmed.
J. W. Kridelbaugh, of Chariton, for appellant.
W. M. Wilson and Watson & Watson, all of Indianola, for appellee.
Plaintiff, in his official capacity at the time in question, was the owner of a 200-acre farm located in Warren county, Iowa. On the 29th of August, 1931, he entered into a written contract for the sale of said land to the defendant, Bert Miller. There was $500 paid down on the contract at that time, and subject to an outstanding mortgage of $11,000 the balance of the purchase price was payable on March 1, 1932, when the contract was to be performed.
The plaintiff alleges that he performed each and all of the things he was required to do under the contract, and that the defendant refused to perform his part of the contract, and he asks for a decree for specific performance. The defendant admits the contract and its terms, and denies the balance of the claims of the plaintiff, and further admits that on the 4th day of March, 1932, he served notice on the plaintiff of his (the defendant's) refusal to perform said contract. He further pleads that he was ready, willing, and able to perform his contract and all the terms thereof on the 1st day of March, 1932, and that the plaintiff was in default because he did not have an abstract, the taxes were not paid, and the land was in the possession of another party and the plaintiff could not deliver possession, and that plaintiff failed and neglected to deliver the abstract in accordance with the terms of the contract, and he prayed that the plaintiff's petition be dismissed and that he have judgment against the plaintiff for the down payment of $500.
[1] The evidence quite conclusively shows that the plaintiff was not ready and able to perform this contract on his part on the 1st day of March, 1932. It also shows that the defendant went to the office of Konrad & Rogers, in Lacona, Iowa, which was the place of performance under the terms of the contract, but that, not finding the plaintiff or his representative there, he later met the representative of the plaintiff and they had a conversation about the performance of this contract. The defendant told Scoles (who was the representative of the plaintiff) that he was ready to make settlement and was ready, willing, and able to perform all the terms of the contract so far as he (the defendant) was concerned, and Scoles told the defendant that he had sent to the loan company for the abstract on the 11th day of February prior, and had not yet received it, but that he was expecting it every day and that the defendant need not pay anything further on the contract until he received the same. Scoles also told the defendant that the tenant on the farm would move off on the first of March if he so desired, and that he (the defendant) could have possession that day. The evidence further shows that the plaintiff had that day sent to the county treasurer of that county a check to cover the taxes then due, and also had sent to the Hartford Insurance Company a check to cover the interest due to that date on the outstanding mortgage. It is further satisfactorily shown that the defendant made no objection at that time, but, in fact, after this conversation with Scoles he went to the farm and had a conversation with the wife of the tenant as to their moving off the place, and the defendant told her that they need not be in a hurry about moving as the roads were practically impassable. On the 2d, or 3d day of March, the defendant was in the office of Attorney Proudfoot, and Proudfoot called Scoles over the telephone and asked him whether the abstract had yet arrived, and on being informed that it had and had been sent to the county seat to be brought down to date, Proudfoot said that he wished to examine the abstract, and the defendant testified that he was in Proudfoot's office...
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