Conner v. Baxter

• Decision Date: 12 May 1904
• Citation: 99 N.W. 726,124 Iowa 219
• Parties: T. M. CONNER, Appellee, v. CHARLES BAXTER, Appellant
• Court: Iowa Supreme Court

99 N.W. 726

124 Iowa 219

T. M. CONNER, Appellee, v. CHARLES BAXTER, Appellant

Supreme Court of Iowa, Des Moines

May 12, 1904

Appeal from Calhoun District Court.--HON. Z. A. CHURCH, Judge.

ACTION in equity to enforce specific performance of contract to convey land. Judgment for plaintiff for damages, and defendant appeals. Modified and affirmed.

MODIFIED and AFFIRMED.

Healy Bros. & Kelleher and D. D. Murphy, for appellant.

E. C Stevenson, for appellee.

OPINION

WEAVER, J.

Under date of October 1, 1901, the defendant, by an instrument in writing, appointed one McDermott his agent "to sell the following described property: the north half of section 9 township 86, Calhoun county, Iowa at $ 62.50," upon terms of payment therein stipulated. Defendant also by the same writing authorized McDermott in his name to enter into a written contract for the sale of said property, and agreed to furnish an abstract showing good title to the land, and to make warranty deed of conveyance to any buyer whom the agent might produce upon the authorized terms. On November 8, 1901 McDermott, having had some negotiations with the plaintiff, telegraphed to defendant: "Can sell farm at sixty per acre. One thousand cash. Seven thousand Feby. 1st, 1902. Balance as per contract" -- to which communication defendant responded: "Accept sixty net to me. Try and do better. Wire." Upon receipt of this reply, McDermott, in defendant's name, entered into a contract with plaintiff, which agreement is the principal subject of the present controversy.

The contract is partly in print and partly in writing, and the portion most material to our present consideration is as follows: "This agreement made this 18th day of November, 1901, between Charles Baxter of the county of Allamakee, and State of Iowa party of the first part, and F. M. Conner of the county of McLean, and State of Illinois, party of the second part, as follows: The party of the first part hereby agrees to sell to the party of the second part on performance of the agreements of party of second part, as hereinafter mentioned, all his right, title and interest in and to the real estate situated in county of Calhoun, in the State of Iowa to wit: All of north one-half of section nine (9), township eighty-six (86), range thirty-two (32), west of the 5th P. M., Iowa containing three hundred and twenty acres (320), more or less, according to government survey, for the sum of nineteen thousand two hundred dollars ($ 19,200), payable as hereinafter mentioned, and the said party of the second part in consideration of premises hereby agrees to and with the party of the first part to purchase all his right, title and interest in and to the real estate above described, for $ 19,200, and to pay to the party of the first part, his heirs or assigns, as follows: $ 1,000 on execution of this agreement, and the balance of the $ 18,200 as follows, to wit: The second party to pay $ 7,000 on Feb. 1, 1902, and the first party agrees to make warranty deed to the party of the second part on Feb. 1, 1902, and also agrees to furnish abstract at that time showing good title. Second party agrees to give first party a mortgage back on said land for $ 11,200 to be paid on or before 10 years from Feb. 1, 1902."

The foregoing description of the land and the terms of payment are in writing, while the body of the agreement is a printed form, such, apparently, as the agent used in his business. Upon the signing of the contract, plaintiff paid McDermott $ 1,000 for the defendant, and, in addition thereto, an agent's commission of fifty cents per acre. On the following day the latter sent draft for the $ 1,000 to defendant, advising him of the making of the contract and of its substance. On November 20, 1901, defendant, by letter, acknowledged receipt of the draft, saying: "It was a fair sale, but the land is worth it, and more, too, or will be soon. I shall be pleased if you will inform me if there is any probability of his making any other payments inside of one year." Soon after receiving the letter, McDermott wrote defendant, suggesting that he forward abstract at once, in order that, if any defect appeared in the title, it could be remedied before February 1, 1902, when the conveyance was to be made; and on December 30, 1901, defendant notified McDermott that he had sent the abstract direct to plaintiff in Illinois. It would seem that the abstract thus sent had not been brought down to date, and plaintiff returned it to defendant, requesting that it be completed. On January 16, 1902, plaintiff again wrote defendant, calling his attention to the delay in the matter of the abstract, and on January 20, 1902, the latter replied, saying, "Will have abstract attended to." On February 4, 1902, plaintiff once more wrote defendant, asking in regard to the matter, requesting that the abstract be sent to his attorneys at Leroy, Ill., and expressing his readiness to settle at any time defendant would get the abstract ready. Defendant did not reply to this letter until February 15, 1902, when he wrote as follows: "F. M. Conner, Lohrville, Iowa -- Dear Sir: Yours as to land contract has just reached me. As you did not comply with the terms of the contract and did not pay or offer to pay the amount due on February 1st at the place where same was payable, I took it for granted that you had dropped the deal. I will return you your $ 1,000 paid me. In addition I can't carry out the contract, as the deed under which I hold the land provides that I can't sell or encumber the land without the consent of my co-owner and that consent I can't get. As a matter of law my contract with you is absolutely void. Where do you want me to send the $ 1,000 you paid? (Signed) Chas. Baxter." Thereafter, on February 26, 1902, this action was begun to enforce specific performance, and asking that, in case such performance could not be had, plaintiff be allowed to recover damages.

By way of answer to this demand the defendant denies the agent's authority to make the contract, and denies that plaintiff has performed or tendered performance of the same on his part. It is further alleged that at the time of the making of said contract, the land was owned by the defendant and his mother as tenants in common, subject to a condition by which neither of said tenants was authorized to sell or incumber said land without the consent of the other, and that his said co-tenant refused to consent to or to ratify or to be bound by the alleged sale made by McDermott. It is also said that the extent of his ownership in the land and the limitation upon his authority to sell was well known to McDermott and the plaintiff, and, furthermore, that the contract as made binds the defendant to sell and convey only his actual title and interest in the land, a conveyance of which the plaintiff refuses to accept. Defendant admits receiving the payment of $ 1,000, but alleges his readiness to repay the same, and brings it into court for the plaintiff's use. Upon the filing of said answer plaintiff amended his petition, alleging that after the written contract was entered into by McDermott defendant ratified the same by personally signing it. The prayer for relief was also amended by asking that the contract be so reformed as to express the defendant's alleged agreement to convey the entire half section of land.

After hearing the evidence, the trial court entered a decree finding and adjudging among other things as follows: "(2) That the allegations of the petition and amendment thereto filed herein are true, and that all the equities of this action are with the plaintiff, and the plaintiff is entitled to the relief as prayed. (3) That the plaintiff is entitled to a specific performance of the contract for the sale of the real estate described in his petition, but, defendant being unable to perform said contract on his part, a money judgment for the damages should be entered for the plaintiff, he electing to take a money judgment therefor. It is therefore ordered, adjudged, and decreed by the court that the plaintiff, F. M. Conner, have and recover of and from the defendant, Charles Baxter, the sum of four thousand five hundred ninety-six dollars and twenty cents ($ 4,596.20), to draw interest at the rate of six per cent. per annum from this date, to wit, November 5, 1902, together with the costs of this action."

I. The foregoing outline of facts renders unnecessary any extended discussion as to the intent and purpose of the parties to the contract. Unless we are bound by some imperative rule of law to exclude from our consideration the undisputed circumstances attending this transaction, it would manifest a marked lack of candor to say that the parties, in entering into this agreement, attempted no more than to bind the defendant to sell and convey an undivided half interest in the land. Indeed, we do not understand appellant to so argue unless we are required to confine ourselves to a simple interpretation of the writing as made without reference to extrinsic facts and circumstances. The defendant himself as a witness clearly concedes that he supposed he was making a sale of the entire property. While on direct examination he seeks to say that in signing the contract he intended to dispose of no more than his undivided interest, he also says upon cross-examination concerning the...