Benedict v. Nielsen
| Decision Date | 25 October 1927 |
| Docket Number | 38543 |
| Citation | 215 N.W. 658,204 Iowa 1373 |
| Parties | ALLEN BENEDICT, Appellee, v. JENS NIELSEN, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED JANUARY 13, 1928.
Appeal from O'Brien District Court.--B. F. BUTLER, Judge.
Action at law, to recover the advance payment on a contract for the purchase of real estate. Judgment for plaintiff, as prayed and the defendant appeals.
Affirmed.
Nelson Miller, for appellant.
T. E Diamond and W. P. McCulla, for appellee.
A brief recital of facts is necessary to a proper understanding of the questions presented for decision on this appeal. On or about June 28, 1920, the plaintiff in this action, as purchaser, and defendant, as vendor, entered into a written contract for the purchase and sale of 160 acres of land in O'Brien County, Iowa. The consideration expressed in the contract was $ 64,000, and was to be paid as follows: $ 3,000 on the execution of the contract, which was paid; $ 21,000, March 1, 1921; and by the assumption of two mortgages for $ 15,000 and $ 25,000, respectively. The contract was not consummated on March 1, 1921, the date fixed therefor, nor at any other time. On or about September 9, 1921, the vendor, defendant in this action, commenced an action in equity, to compel specific performance of the contract. Benedict, the defendant in that action, answered the petition, denying that he was in default in the performance of the terms of the contract, and alleging, as an excuse for nonperformance on his part, that the plaintiff did not have a merchantable title to the land, as required by the contract; that he failed to furnish an abstract, as agreed; that, on or about the first day of May, 1921, he voluntarily executed a mortgage of $ 5,800 upon the O'Brien County land, thereby himself abandoning the contract. A trial upon the issues joined in that case resulted in a decree in defendant's favor, which, upon appeal, was affirmed. Nielson v. Benedict, 196 Iowa 173, 194 N.W. 83. Thereafter, Benedict, defendant in the specific performance suit, and appellee herein, commenced an action at law against Nielsen, appellant, to recover the $ 3,000 paid at the time of the execution of the contract. The petition in the present action alleged that the defendant defaulted in the performance of the terms of the written contract on his part, in that he was not the owner, and could not convey a merchantable title to the land in question. The petition also set up the adjudication in the former suit and attached copies of the pleadings therein in full as exhibits.
The appellant in due time answered the petition, and, in addition to a general denial, alleged certain affirmative defenses, in substance as follows: that appellee was in default, and wholly unable to consummate the written contract on March 1, 1921; that, on or about February 1st, the parties modified the same by an oral agreement which extended the time of performance and made it easier for appellee to ultimately carry out the same; that subsequently, appellee refused to consummate the contract as orally modified; that by his conduct he misled appellant to his damage; and that, by reason of all of the aforesaid matters and others set up in the answer, which it is not necessary to recite in detail, appellee abandoned the contract, and waived all of his rights thereunder.
In addition to the affirmative matters pleaded in the answer, appellant filed a counterclaim, based upon the alleged breach of both the written and the oral contract by appellee, and demanded judgment on account of such breach for $ 10,000. The answer, by way of admission, or affirmative allegations, in substance pleaded the facts relied upon by appellee in this action as constituting a prior adjudication of all of the affirmative matters set up by appellant in the answer and counterclaim.
A motion was filed to strike the affirmative defenses pleaded by appellant, upon the ground that it appeared upon the face of the answer that all of the matters pleaded were res adjudicata, and constituted immaterial, irrelevant, and redundant matter.
A demurrer to the counterclaim, based upon the claim of prior adjudication, was also filed. Both the motion and the demurrer were sustained by the court. A trial to the court without a jury followed. Appellee introduced in evidence the contract, the pleadings, and the decision of this court in the specific performance suit, and, after identifying the parties and showing the cash payment by appellee of $ 3,000 on the execution of the contract, rested. No evidence was introduced by appellant.
The arguments of counsel in this court apparently treat the rulings of the court upon the motion and demurrer as presenting the question of prior adjudication for review at this time. We shall, therefore, give no consideration to technical matters of pleading. It was contended by counsel for appellant in oral argument that the estoppel is as complete against appellee, to recover the cash payment of $ 3,000, as it could be against appellant, to set up the alleged oral modification of the contract which it is alleged he was able and willing to perform. No counterclaim was pleaded by the defendant in the specific performance suit, nor was it necessary for him to plead same. His right to recover the cash payment was not necessarily involved in that action, and therefore not adjudicated thereby. Oswalt v. Cronk, 195 Iowa 230, 190 N.W. 162; Thomas v. McDonald, 102 Iowa 564, 71 N.W. 572; Snouffer & Ford v. City of Tipton, 161 Iowa 223, 142 N.W. 97; Lindley v. Snell, 80 Iowa 103, 45 N.W. 726; Griffith v. Fields & Bryant, 105 Iowa 362, 75 N.W. 325; Thomas v. McDaneld, 88 Iowa 374, 55 N.W. 499.
Furthermore, appellant did not plead a prior adjudication of that issue. Assuming, as counsel appears to have done, that the issue of prior adjudication is presented for our consideration, we proceed to a discussion thereof. It is a familiar and well settled rule that, if the vendor does not have title to the land, and cannot make conveyance in accordance with the terms of his contract, the purchaser may rescind the same, and recover any part of the consideration paid. Tague v. McColm, 145 Iowa 179, 123 N.W. 960; Frey v. Stangl, 148 Iowa 522, 125 N.W. 868; Perrin v. Chidester, 159 Iowa 31, 139 N.W. 930; Norris v. Letchworth, 140 Mo.App. 19 (124 S.W. 559); Sherman v. Good, 21 Ala.App. 546 (109 So. 893); Lloyd v. Weinstock (N. J.), 135 A. 65; Burton v. Ryther, 38 S.D. 342 (161 N.W. 350); Wayne v. Butterfield, 50 S.D. 463 (210 N.W. 663).
The action for specific performance was based solely upon the written contract, and the alleged...
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