Fisher v. Trumbauer

• Decision Date: 13 May 1913
• Citation: 141 N.W. 419,160 Iowa 255
• Parties: FISHER v. TRUMBAUER & SMITH ET AL.
• Court: Iowa Supreme Court

160 Iowa 255

141 N.W. 419

FISHER

v.TRUMBAUER & SMITH ET AL.

Supreme Court of Iowa.

May 13, 1913.

Supplemental opinion.

For former opinion, see 138 N. W. 528.

PER CURIAM.

[1] The opinion heretofore filed disposes of every point raised in the assignment of errors, but, as is contended in the petition for rehearing, the point that equity will grant relief where there is a mutual mistake concerning the quantity of land is made in the brief. This is barely mentioned and an authority cited, but no argument made in its support. Indeed, in summing up, appellant says he “had no right to recover on his deed until reformed,” but the rules do not exact that the argument shall be consistent with the brief points or even with itself. There is no longer any necessity of assigning errors, and about all that is exacted is that the particular error of which complaint is made be clearly stated and either authorities be cited in its support or the reasons for challenging the ruling be stated in argument. Had counsel given a little more attention to the rules of this court concerning the preparation of briefs, we might have experienced less difficulty in ascertaining what was being claimed.

[2] There was a mutual mistake concerning the number of acres of land and the remedy available in such a case is either at law or in equity as the injured party may elect. Rathke v. Tyler, 136 Iowa, 284, 111 N. W. 435;Boddy v. Henry, 126 Iowa, 31, 101 N. W. 447. The plaintiff then was entitled to a hearing in equity on the merits, even though he had prayed for the reformation of the deed, to which he was not entitled, and which in any event was of no consequence.

[3] That the defense or counterclaim was at law would not authorize a trial in that forum, but, having been interposed in a suit properly begun in equity, these must also be there heard. See Ryman v. Lynch, 76 Iowa, 587, 41 N. W. 320, and like cases.

[4] Taking up the cause on the merits, it is to be said that the contract was what is known in common parlance as a trading contract, and therefore the plaintiff should be allowed for the shortage a price per acre, not such as estimated for the purpose of exchange, but the actual value thereof. The plaintiff testified the farm was worth $45 per acre, and, as this, as near as can be ascertained from the record, is about what he paid for it in value, it should be allowed him as damages.

[5] The defendants should not be allowed anything on their counterclaim for...