Epley v. Ely

• Decision Date: 17 December 1885
• Parties: EPLEY v. ELY AND ANOTHER.
• Court: Iowa Supreme Court

68 Iowa 70

25 N.W. 934

EPLEY

v.ELY AND ANOTHER.

Supreme Court of Iowa.

Filed December 17, 1885.

Appeal from Linn district court.

The plaintiff appeals from an order sustaining a motion filed by the defendants to strike out a second amended petition filed by the plaintiff.Frank G. Clark and Wm. G. Thompson, for appellant, A. E. Epley.

Mills & Keeler, for appellees, Mary A. Ely and another.

ADAMS, J.

The defendants had demurred to the plaintiff's first amended petition, and the demurrer had been sustained. The motion to strike out the second amended petition is based upon the ground that it does not differ in any essential respect from the first amended petition, which the court had held, on demurrer, to be bad. It is not allowable, of course, after a pleading has been held, upon demurrer, to be bad, to file another which does not differ in substance, but in phraseology only. On this point we do not suppose that there is any serious controversy. The difficulty, if any, arises upon the determination of the question as to whether the second amended petition is substantially the same as the first.

The action was brought to recover damages for an alleged breach of a contract. The defendants had leased to the plaintiff, Amanda E. Epley, a portion of a lot in the city of Cedar Rapids for the period of 20 years. Afterwards the defendants entered into a written agreement with the plaintiff by which she was allowed the option to purchase the premises. The agreement is in these words: “In consideration of the lease made this day by and between Mary A. Ely and John F. Ely, first party, and Amanda Epley, second party, in which is demised the following real estate, [here follows description,] the first party agrees that if the first party shall desire to sell the premises, and shall have an offer and opportunity to do so, then the second party shall have the first opportunity to purchase the premises at the price and on the terms on which the first party might or could have sold the same to any other party.” After the execution of this contract the defendants sold and conveyed the premises to one Henrietta Dows, and did not, as the plaintiff alleges, give her an opportunity to purchase at the same price, as by the agreement the defendants were bound to do. She avers that she was damaged in the sum of $1,000, which is the difference between the value of the property and the price at which it was sold. The plaintiff did not aver that the execution of the agreement was a part of the same...