Bombei v. Schafer, 47871

• Decision Date: 08 May 1951
• Docket Number: No. 47871,47871
• Citation: 242 Iowa 619,47 N.W.2d 842
• Parties: BOMBEI et al. v. SCHAFER.
• Court: Iowa Supreme Court

Page 842

47 N.W.2d 842

242 Iowa 619

BOMBEI et al. v. SCHAFER.

No. 47871.

Supreme Court of Iowa.

May 8, 1951.

T. A. Michels, of Washington, and Edward L. O'Connor, of Iowa City, for appellant.

Louis J. Kehoe, of Washington, for appellees.

SMITH, Justice.

On January 16, 1947, these parties entered into written contract by which plaintiffs sold and agreed to convey to defendant a certain farm adjoining one already owned by defendant. The contract provided for a conveyance and 'abstract of title showing merchantable title of record * * * free from encumbrance.' A down payment of $5,000 was made leaving $20,987.50 of the agreed purchase price to be paid on or before March 1, 1947.

On March 3, 1947, when the parties met to complete the transaction plaintiffs tendered abstract and a deed subject to a railroad right of way and 'to all easements and rights of way affecting said real estate.' Defendant objected to a telephone easement shown on the abstract.

The meeting was held in the office of defendant's attorney now deceased. Besides the three parties and this attorney there was at first present plaintiffs' agent Breitenbaugh, who had negotiated the sale, and later plaintiffs' attorney who represents them on this appeal was brought in. The parties and Breitenbaugh all testify to what took place there.

All agree defendant objected to the telephone easement and at first proposed to withhold $1,000 of the balance of purchase price. Later he reduced the amount to $500, signed and delivered a check for $20,387.50 ($100 additional was withheld on account of some formal abstract defects, later corrected, and the $100 has since been paid) and received a warranty deed that recited payment of the full $25,987.50 original agreed purchase price.

Plaintiffs plead the $500 was withheld 'fraudulently, without any just reason or excuse' but the pleading makes clear they delivered the deed and accepted the check for the reduced amount. The present suit is in equity for specific performance but there is a suggestion in defendant's answer that there was either a former action at law or that the present case was commenced as a law action. The Record however makes no explanation. The Record does show a demand by defendant for jury but no ruling. No reason for the request in an equity case is offered.

The suit as it stands is based on the contention there was made at the time the deal was closed an oral agreement that the $500 was withheld conditionally, subject to a later court decision as to the validity of defendant's objection; and it is claimed the deed was delivered and the check accepted by plaintiffs on that understanding.

Defendant denies there was such an understanding and claims the whole controversy was finally and completely settled for the $500 withheld.

The trial court held with plaintiffs, awarded them judgment against defendant for $500 and he appeals.

I. The appeal at this point involves a fact question upon which plaintiffs had the burden of proof. Marsh v. Pilcher Hardware Co., 190 Iowa 592, 180 N.W. 648; 15 C.J.S., Compromise and Settlement, § 51b, page 776; 1 C.J.S., Accord and Satisfaction, § 48a, notes 29 et seq., page 559. They and their agent, Breitenbaugh, testified to the alleged oral understanding. Plaintiff, Leonard Bombei, said defendant first wanted to hold back $1,000 but 'I said I wouldn't settle that way. I wanted all of it and he finally agreed to take $500 off if I would settle that way. I said that I wanted all that the contract called for. * * * so I finally went over and got Mr. Kehoe (plaintiff's attorney) to come over and we talked awhile * * *I told Mr. Shafer I wouldn't consent to take off $500 and he didn't want to agree * * * I told him * * * if the court decided he should pay the $500 he was to pay it. If not, that he wasn't. He said he didn't want to do this and wouldn't do it so I told him if he would give me a check, we would leave the court decide, so he said he would give me a check for $20,387.50 and I told him that I would do that under one condition, that I would take off the $500, the $100 for railroad right of way that was on the farm and I was to get the $100 when I gave him the abstract to it and he was to give me the $500 if the court decided he was to pay. That was under these conditions that he gave me the check and then I gave him the deed and abstract under that condition.'

We have quoted at some length from this plaintiff's somewhat confused testimony as to the alleged oral understanding. Evidently the testimony was not all that was confused. Mrs. Bombei, the other plaintiff, testifying to substantially the same general effect, was asked: 'Q. Was there anything said by Mr. Bombei at the time he gave that check to Mr. Shafer (sic)? A. Well he said he would settle this on the condition if Mr. Shafer would give us the money and the court decide on it and he would give him the deed. Q. And with that understanding you saw them exchange the deed and the check? A. That is right.' After the last quoted answer was in defendant objected to the question 'as wholly incompetent, irrelevant and immaterial, leading and suggestive and wholly improper.' There was no motion to strike and no ruling.

The testimony of Mr. Breitenbaugh consisted principally of his own conclusion and understanding that 'they made a settlement all but $500' which 'was to be determined later by the court.' There was a motion to strike the quoted language 'as a pure conclusion and volunteer statement * * * and not in answer to the question as to what was said by the parties.'

Defendant testified he objected not only to the easements (railroad and telephone) but also to plaintiffs' removal of hog houses, chicken house and oil furnace. 'At first I refused to take it (the deed) and demanded $1,000 and then in order to settle the thing up I told them I would compromise with them on $500.'

During the negotiations the deed came into defendant's hand and Breitenbaugh had the check defendant had signed for $20,387.50. Just how this came about is not clear. 'I had the deed in my hand and threw the deed on the table and demanded my money back. * * * They didn't answer on that. There was nothing said for a long while * * * Breitenbaugh didn't give me back my check.' Defendant testified Mr. Kehoe said 'You have got the deed and abstract and Mr. Bombei has got the check'; and that as plaintiffs and Kehoe walked out of the office the latter said, 'Bombei you can sue on it if he wants to' (sic). 'Q. After you threw the deed and the abstract down on the table and demanded your money back, did Mr. and Mrs. Bombei make any further statements about going to court? A. No.'

It appears without denial Breitenbaugh, who drew the check that was signed and delivered by defendant also, during the negotiations, drew another one for $500 that defendant refused to sign. That represents the only suggestion of written evidence of the claimed condition to the settlement and it was rejected by defendant. Had it been signed by defendant and placed in escrow the matter would have been beyond controversy. His failure to sign it is significant.

The testimony on behalf of plaintiffs is vague and unsatisfactory. It does not indicate whether plaintiffs were to bring action for the unpaid $500 or defendant was to bring suit to compel removal of the title defects complained of or a judicial pronouncement of the validity of his objections.

We have set out a fair summary of the evidence. Unfortunately we do not have any version from the attorneys present...