Dicken v. Morgan

• Decision Date: 22 October 1880
• Citation: 7 N.W. 145,54 Iowa 684
• Parties: DICKEN v. MORGAN ET AL
• Court: Iowa Supreme Court

7 N.W. 145

54 Iowa 684

DICKEN v. MORGAN ET AL

Supreme Court of Iowa, Des Moines

October 22, 1880

Appeal from Ringgold District Court.

ACTION to foreclose a mortgage. A demurrer to the answer was sustained, and defendants elected to stand upon their pleadings. A decree was entered granting the relief prayed for in the petition. Defendants appeal.

REVERSED.

Askren Bros. and R. H. Spense, for appellants.

Laughlin & Campbell, for appellee.

OPINION

BECK, J.

I.

The mortgage was executed to secure five promissory notes. The petition alleges that one of the notes, calling for $ 200 remains due and unpaid, and asks that a judgment and decree of foreclosure be rendered thereon. It is also averred that the note was given for the purchase-money of the lands described in the mortgage.

The second count of defendants' answer denies that the entire consideration of the note was the purchase-money of the lands, and avers that at the time the note and mortgage were executed the parties entered into an agreement that defendants were to pay $ 1,000 for the land, and a further sum of $ 100 in consideration that plaintiff should procure a highway to be established upon the land, which had been viewed by commissioners properly appointed upon defendant's petition. This plaintiff agreed to do, and his agreement constituted the consideration of the notes to the extent of $ 100. It is alleged that the notes have been paid, except the sum of $ 100 upon the note described in the plaintiff's petition.

The demurrer to the petition is on the ground that it sets up a verbal agreement, by which defendants seek to add to or change the terms of the contract contained in the note and mortgage. It was erroneously sustained.

The answer shows that the agreement of plaintiff recited therein was a part of the consideration of the note. A failure of the plaintiff to perform his contract was a failure of the consideration, pro tanto. It is not denied, and cannot be, that a partial failure of the consideration may be pleaded as a defense to the action to the extent thereof.

The agreement alleged in the answer did not add to or change the terms of the contract contained in the note which was to pay the sum expressed therein. That contract is that defendants will pay plaintiff the sum of money named in the notes, at the time therein fixed, with interest. The contract pleaded by defendants is a distinct and independent...