Awe v. Gadd

• Decision Date: 12 March 1917
• Docket Number: No. 31037.,31037.
• Citation: 161 N.W. 671,179 Iowa 520
• Parties: AWE v. GADD.
• Court: Iowa Supreme Court

179 Iowa 520

161 N.W. 671

AWE

v.GADD.

No. 31037.

Supreme Court of Iowa.

March 12, 1917.

Appeal from District Court, Winnebago County; M. F. Edwards, Judge.

Action at law to recover of the defendant an alleged balance due of the purchase money or consideration to be paid plaintiff by the defendant upon the sale of land. There was a verdict and judgment for the plaintiff for $1,000, and the defendant has appealed. Reversed.Burt J. Thompson and Alan Loth, both of Forest City, and Senneff, Bliss & Witwer, of Mason City, for appellant.

E. H. Lundy and Dean Peisen, both of Eldora, H. A. Brown, of Forest City, and Maurice O'Connor, of Ft. Dodge, for appellee.

EVANS, J.

This case bristles with trouble. The plaintiff based his right of recovery upon an alleged oral agreement. He was confronted with the twofold necessity of (1) avoiding the legal effect of a written contract, and (2) avoiding the statute of frauds. The case was originally brought in equity. After several amendments and substituted pleadings filed by the plaintiff, he obtained a transfer of his cause to the law side, and it was so tried to the jury. Because of the narrow course open to the plaintiff in any view, and of the double menace on either side, he became involved in some inconsistency in the course of the trial both in the matter of pleading and in the matter of his own testimony; and this in turn became the occasion of some errors which appear in the record. In the final form of his petition, the plaintiff declared upon an oral contract, whereby he sold to the defendant an incumbered farm, and whereby the defendant, as a consideration for the conveyance, assumed to pay the incumbrances and further agreed to pay the plaintiff all the surplus which defendant should realize by a sale of the farm, if any, and the reasonable value of the farm above incumbrance if no sale were made. The defendant pleaded that the transaction had between the parties was in the form of a written contract known in this record as “Exhibit B,” and that the conveyance of the land was made pursuant to such written contract. By a reply the plaintiff admitted the writing Exhibit B, but assailed its validity on the ground of false representations. He also pleaded that, by mutual agreement, after its execution the written contract was set aside by the parties thereto and that a new oral agreement or modification was substituted therefor. On the trial, the evidence wholly failed to sustain the attack upon the validity of the written contract, and the trial court so instructed the jury; and instructed, also, that such contract, Exhibit B, was binding upon the parties unless the jury found that it had been set aside or modified by the mutual agreement of the parties after its execution and before the execution of the deed.

It is the contention of the defendant, appellant herein, that the evidence wholly failed to show such mutual agreement of substitution or modification and wholly failed to show any consideration for the alleged modification. This question goes so deeply into the heart of the case that we give it our first consideration.

1. Exhibit B was a written contract entered into by the parties hereto on March 28, 1908, whereby the plaintiff agreed to convey to the defendant by warranty deed, to be signed by himself and wife, the farm in question, and whereby the consideration specified was the assumption by the defendant of all the record incumbrances thereon. The incumbrances amounted approximately to $10,860. The jury by its verdict found in effect that the farm was worth $1,000 in excess of such sum. By the provisions of the contract the conveyance was to be made on March 30, 1908. On March 30th, the plaintiff did deliver to the defendant a warranty deed duly executed by himself and wife.

[1] Starting with the proposition, as we must, that the written contract was valid and enforceable, the case at this point turns wholly upon the sufficiency of the evidence to sustain the claim of a subsequent mutual agreement to set aside or modify the written contract. The written contract was entered into on Saturday afternoon. The deed was executed and delivered on Monday. Referring to what transpired between the parties on Monday the plaintiff testified on direct examination as follows:

“Q. Did you mention this contract to him at that time? A. Yes, sir; I told him that we come in to do as we agreed, to give him a deed, but I noticed that the agreement was not carried out in writing, but I hoped that he would do just as he said he would. He said, ‘I surely will, Mr. Awe.’ The deed was turned over to him.”

On cross-examination he testified substantially to the same effect, as follows:

“ ‘Now,’ I says, ‘we come in here to do just as we agreed, to give you that deed, but,’ I says, ‘I find that the agreement is not carried out in writing in the contract, but I hope that you will do just as you said.’ He says, ‘I certainly will.’ That is all that was said about it that morning. There wasn't anything more definite said than that. I don't remember anything else. Then I and my wife signed the deed. After we gave the deed, we entered into a written lease renting the farm from him and gave him our notes for $500.”

The foregoing comprises the entire testimony upon which the claim of substitution or modification is based. Accepting the testimony as true, can it be said that it shows any mutual agreement of the parties to set aside the written contract or to modify it, or to adopt a new oral contract in lieu thereof? If yea, what was the substituted contract or the new modification?

[2] It is not entirely clear from the pleadings or from the briefs whether the plaintiff contends for a strictly substituted contract in lieu of the written contract, or for only a modification of the written contract. It is undoubtedly true that the parties may by oral agreement...