Buechler v. Olson

• Decision Date: 19 September 1922
• Docket Number: 34411
• Parties: DEWEY H. BUECHLER, Appellee, v. CHARLES OLSON, Appellant
• Court: Iowa Supreme Court

189 N.W. 741

194 Iowa 245

DEWEY H. BUECHLER, Appellee, v. CHARLES OLSON, Appellant

No. 34411

Supreme Court of Iowa, Des Moines

September 19, 1922

Appeal from Boone District Court.--R. M. WRIGHT, Judge.

ACTION for damages by a vendee against a vendor, for breach of a contract to sell and convey land. The defense was a general denial, and a denial of the authority of alleged agents to make the contract. There was a verdict for the plaintiff, and the defendant appeals.

Reversed.

J. R Whitaker, for appellant.

Dyer Jordan & Dyer, for appellee.

EVANS J. STEVENS, C. J., ARTHUR and FAVILLE, JJ., concur.

OPINION

EVANS, J.

This suit is brought upon an alleged oral contract entered into on behalf of the defendant by an alleged agent, under oral authority. One Garvey purported to sell to the plaintiff a farm of the defendant's, and purported to have oral authority so to do. This purported contract of sale was reduced to writing, and embodied in a receipt for a part of the purchase money given by one Grant, as another alleged agent for the defendant. The plaintiff, however, brought his suit upon the antecedent oral contract, and not upon the written contract. Upon the trial, however, he introduced his written contract in evidence. The salient facts in the case are that, about May 16, 1919, the defendant became the purchaser of an 80-acre farm. The real estate agents who were instrumental in selling the farm to him were Garvey and Edson. Upon completion of the purchase, he orally authorized them to make a quick sale of the same at $ 280 an acre net. A few days later, he raised his price to $ 290, and advised Edson to that effect, and directed Edson to advise Garvey. Edson testified that he did tell Garvey; whereas Garvey denies it. Garvey found the plaintiff as a purchaser, ready, able, and willing to buy at $ 280 per acre. The evidence is in conflict as to the details of what transpired thereafter, and these will be referred to later. The net result thereof was that the defendant refused to recognize the sale, and refused to accept any tender made thereon by the plaintiff. This was on the ground that the purported sale by the agent was unauthorized. This purported sale was made on or about June 2, 1919. The contract as made called for the payment of $ 1,000 cash, with further payments to be made March 1, 1920, on which date the contract was to be fully performed, and the possession of the farm delivered to the plaintiff. The defendant having repudiated the purported sale, the plaintiff made a final offer to him to enter into a formal contract embodying the alleged terms of sale. This being refused by the defendant, the plaintiff elected to claim damages for breach of the purported contract, and brought his suit for damages on the 20th day of August, 1919. This is a sufficient statement for the purpose of the first point which we shall consider.

I. Trial of this case was had in September, 1920. The plaintiff claimed, as his measure of damages, the difference between the contract price of the farm and the value of the farm on March 1, 1920, this being the date when the contract was to have been performed and the possession of the farm delivered. For the purpose of such measure of damages, he was permitted to introduce evidence of the market value of the farm on such date, all of which was received over appropriate objections by the defendant.

In the introduction of defendant's testimony, the defendant offered to prove the value of the farm in August, 1919, at about the time of the commencement of the suit. This offer of evidence was rejected, upon objections by the plaintiff. The question raised upon this state of the record is: What was the appropriate rule as to the date upon which the value should be ascertained and considered? The testimony on both sides disclosed that there was a great and rapid advance in real estate values in Boone County during the intervening period between August, 1919, and March, 1920. Witnesses for the plaintiff testified to its value as high as $ 350 an acre on March 1st, and this valuation was approximated in the finding of the jury by its verdict. One of the errors assigned by the defendant is that the measure of damages, if any, should have been based on the valuation of the farm as it was just prior to the commencement of the suit, and at the time the breach occurred; whereas the plaintiff contends here, as he did in the trial court, that he is entitled to recover on the basis of the value of the farm as it was on the date when the contract was to have been performed. In a general sense, both rules obtain. Each has its appropriate application to the circumstances of the particular case. The rule as stated by plaintiff's counsel is set forth in Foley v. McKeegan, 4 Iowa 1. See, also, 2 Sutherland on Damages (4th Ed.), Section 566. In Warren v. Chandler, 98 Iowa 237, 243, 244, 67 N.W. 242, both rules are stated as equivalents:

"But where there is evidence given showing a change in the value of the land, the value at the time the breach occurred and when the conveyance ought to be made will furnish the standard of damages."

The evidence in the case at bar furnishes a good illustration of the appropriate application of each rule. Assuming that the plaintiff proved his contract, and that the defendant breached it by his immediate repudiation thereof in June, 1919, the plaintiff had a right of election to keep his tender good until March 1st, and thereafter to bring an action for specific performance; or he had a right, at any time after the breach by the defendant in June, to elect to claim damages. Whenever he elected to claim damages, he waived his right to specific performance, and he likewise released himself from all obligation to keep his tender good.

From the moment that the plaintiff elected to claim damages, and brought his action thereon, he became wholly released from further obligations of the contract. He was at liberty to ignore the same wholly, and to use his resources for other investment. He was not bound to keep his tender good, nor to keep the contract alive. When he brought his suit for damages, his election of remedies was irrevocable. His remedy became fixed as an action for damages. His right to an action was mature, if he chose to make it so, and he was entitled to bring his action forthwith. If his right of action was mature and suable, his measure of damages was necessarily accrued and mature also. If the land had depreciated in value after the beginning of his suit, and before the first day of March, he could not be prejudiced thereby. He would be entitled to measure his damages by the price at which he could have sold his purchase on the day that he brought his suit. His cause of action neither diminished nor increased, pending suit.

We deem it clear that his damages should have been measured upon the basis of the value of the land at the time he began his suit.

II. The more serious question presented to us is whether the court should have directed a verdict for the defendant. For the purpose of this question, further details of the record must be stated. Garvey, the alleged agent of the defendant, testified as a witness for the plaintiff, as follows:

"Live in Boone, and am in the real estate and stock business. I sold this 80 acres of land to Olson. It was owned by Sutton. This was about the 10th or the 15th of May. He relisted it with me the same day, for a $ 1,000 down on the contract, or $ 280 net to him, but for not more than $ 285 an acre. Nothing was said as to how long I was to have to sell it at that price. Olson was to let Grant know if he changed his mind. Grant, Olson, and myself were eating dinner. Olson said he wanted Grant as a witness. There was no limit to the time to sell the 80. I sold the 80 to Buechler, the last of May. It was Saturday afternoon. Told Buechler the terms. Met Buechler that evening in Boone, and he said he would take the place. Buechler gave me a check for $ 100. After that, I called Olson up on the telephone, between 8 and 9 o'clock. He was at his home in Beaver. Told him that I had sold his 80, and that I had got a $ 1,000 on the contract by Monday. Told him I had got his price. Olson told me to go to the city bank or to Grant's and make a contract. Don't think he made any objections to my making the deal. Do not remember. He did not say that he would go through with the deal. The following Monday, went to Grant's office with Buechler. Grant was there, but not Olson. Told Grant to make out a contract, and Grant said that Olson was not there, but he would make out a receipt for $ 1,000. Grant said he would not make a contract, but would make a receipt. He made a receipt, and gave it to Buechler. Did not see the receipt. I gave Buechler back his check for $ 100."

The only evidence of authority in Garvey to make the sale, offered by the plaintiff, is the foregoing.

Grant was an abstracter. He had prepared the papers in the transaction of the defendant's purchase of the land from Sutton. Reference is made to him in Garvey's testimony. He was called as a witness by the defendant, and testified as follows:

"I heard a conversation between Garvey and Olson in Boone, in which Garvey asked Olson to list the 80 back with him; that he had a buyer in view; that he could make a quick sale. Olson told him, if he could make a quick...