Davis v. Norton (In re Norton's Estate)

• Decision Date: 19 October 1926
• Docket Number: No. 37612.,37612.
• Citation: 210 N.W. 438,202 Iowa 374
• Parties: IN RE NORTON'S ESTATE. DAVIS ET AL. v. NORTON.
• Court: Iowa Supreme Court

202 Iowa 374

210 N.W. 438

IN RE NORTON'S ESTATE.DAVIS ET AL.

v.NORTON.

No. 37612.

Supreme Court of Iowa.

Oct. 19, 1926.

Appeal from District Court, Adams County; H. H. Carter, Judge.

Suit in equity to reform a contract of sale of real estate and a warranty deed given pursuant thereto, so as to show therein that the agreed contract price was $160 per acre and that plaintiffs be awarded recovery for over-payment thereon; such overpayment resulting from a shortage of the acreage represented by the vendor. The issue was made by general denial. The trial court found the evidence insufficient to warrant granting relief. The plaintiffs appeal. Affirmed.Meyerhoff, Gibson & Watts, of Corning, for appellants.

Stanley & Stanley, of Corning, and Higbee & McEniry, of Creston, for appellee.

EVANS, J.

[1] It appears from plaintiff's evidence that on January 28, 1914, he entered into a written contract with one Norton, since deceased, for the purchase of a certain farm. On March 1, 1918, the real estate involved in the contract was conveyed by warranty deed by Norton to the plaintiff. The land described in the contract and deed consisted of several tracts and lots. Neither the contract nor the deed specified any acreage for any tract nor any total acreage for the whole, nor was there any price fixed upon any separate tract. The consideration was stated both in the contract and deed in the lump sum of $26,000.

The contention of plaintiff is that the real agreement antecedent to the written contract was “he should pay $160 per acre,” and that it was represented to him that the farm comprised 166 1/2 acres. It is further contended that a survey made in January, 1923, disclosed an acreage of 148.78 acres and no more. Plaintiff asks to recover the difference in value computed on the basis of $160 per acre for the shortage of 17.72 acres. No claim of shortage was made at any time during the lifetime of Norton. The claim therefor, being presented against his estate, is now defended by his executrix. The plaintiff's case rests, in the main, upon his own testimony, with some corroboration of one or two details from other witnesses. The plaintiff testified that his attention was first directed to the farm in question in the fall of 1913 by a real estate agent, Mack, who quoted him price of $160 per acre, and who told him that Norton said that the farm contained 166 1/2 acres. Mack died before the date of the trial, and his testimony was not available to either party. Mack showed several farms to the plaintiff for which he purported to have an agency. The plaintiff said to Mack that he would take the farm at the quoted price, if Norton would take a quarter section of Canada land at $35 per acre. It is undisputed that $26,000 was the price at which the farm was put in, and was the price stated in the written contract. It is undisputed also that Norton took the Canada land at the sum of $4,000. The scope of Mack's agency is not made to appear by any direct evidence, and plaintiff relies for proof of such agency upon the doctrine of ratification. The ratification contended for is that Norton ultimately sold the land by execution of the written contract. There is no evidence from which it can be determined whether Mack was an agent merely to find a purchaser, or an agent to make the sale. This is not an action for false representations or on a covenant of warranty.

The objective of this action is to determine the real intent and understanding of both parties at the time the written contract was entered into. While some incompetent evidence on the part of the plaintiff crept into the record as to personal transactions, the plaintiff does not contend for the competency of such evidence. The corroborating evidence introduced by him was that of certain witnesses, who testified to conversations with Norton wherein he said he had sold his farm at $160 per acre. Evidence also was introduced by him to the effect that, at a time subsequent to the sale, Norton had said that the farm contained 166 1/2 acres. This, in general terms, is the nature of plaintiff's evidence. The trial court deemed it as not sufficiently clear and convincing to warrant a decree. We have carefully read the evidence and are forced to the same conclusion. A careful analysis of the evidence of the plaintiff discloses that it is not wholly consistent with itself. A part of the plaintiff's evidence is summed up in his brief as follows:

“Norton had an examination made of the Canada land, and thereafter Mack told Davis that Norton would sell, but would only pay $30 an acre for the Canada land. Mack and Davis together then figured that, at the price asked by Norton, Davis would have to pay $26,640 for the Norton land. Davis told Mack that he couldn't accept $30 an acre for the Canada land because Norton had his land priced too high.”

It will be noted at this point that Mack reported Norton as willing to pay $30 an acre for the Canada land and to take $160 for his own, computing the same at 166 1/2 acres. The plaintiff...