Fritzler v. Robinson

• Citation: 70 Iowa 500,31 N.W. 61
• Parties: FRITZLER AND WIFE v. ROBINSON.
• Decision Date: 21 December 1886
• Court: United States State Supreme Court of Iowa

70 Iowa 500

31 N.W. 61

FRITZLER AND WIFE

v.ROBINSON.

Supreme Court of Iowa.

December 21, 1886.

Appeal from circuit court, Keokuk county.

Action on agreement for a lease of coal land. Judgment for plaintiff. Defendant appealed.

Plaintiff and wife, being owners and occupants of certain real estate, executed a coal lease therefor to the defendant in consideration of the payment of five cents per ton royalty for coal mined, or $300 per year provided the royalty did not amount to that sum, and also the right to have coal for home consumption. Plaintiff brought this action for the recovery of $300 for the first year, and $25 for failure to deliver coal for home use. Defendant answered, denying indebtedness, and setting up as an equitable defense that both parties at the time believed that there was coal under the land, but that it was subsequently ascertained that there was no coal; also that it was the intention of the parties to the lease, and intended to be written therein, that the defendant and his assignees should have the right to prospect on the premises for coal, and, if there was no coal, then no royalty was to be paid. Defendant asks that the contract be reformed to agree with such intention. The answer also recites that it was understood between the parties that the lease should be assigned to the Novelty Coal Company; that it was given and received with that understanding, and was so assigned. Judgment for plaintiff for damages assessed at $347.40. Defendant appeals.Mackey & Fonda, for appellant.

Sampson & Brown, for appellees.

ROTHROCK, J.

A question is raised as to the manner in which this cause is to be tried in this court,--whether upon errors, or de novo on the evidence, which has been reduced to writing.

It appears from the record that the whole of the evidence was reduced to writing on the hearing, which was had before the court, and, by an order entered in the case, the evidence was taken down by the official short-hand reporter, was made a part of the record, and on the evidence then introduced the case was taken under advisement to be argued in vacation, and judgment and decree entered in vacation. This order was made at the March term, 1885; both parties being present. At the September term of the same year the cause was continued by consent, for the reason, as stated in the order, that the record had not been submitted to the court. At the term held in February, 1886, the cause was resubmitted and taken under advisement, and judgment and decree to be entered in vacation. It is apparent from the record that the cause was tried below as an equitable action, and it must be so tried here. Van Orman v. Merrill, 27 Iowa, 476;Balch v. Ashton, 54 Iowa, 123;S. C. 6 N. W. Rep. 146;Richmond v. Dubuque & S. C. R. R., 33 Iowa, 422;Blough v. Van Hoorebeke, 48 Iowa, 40. The evidence having been certified as required by law, we shall therefore proceed to consider the case as triable de novo in this court.

The appellant insists that the court erred in sustaining a motion to strike out a part of an amendment to the answer, but a careful examination of the pleading convinces us that the portion struck out might be regarded as redundant; and we think the motion was properly sustained.

The first branch of the equitable defense set up by the defendant is that the contract in question does not express the true intent of the parties, but that the design was to put into the agreement “that defendant, or his assignees, should have the right to prospect said land, and see if there was any coal thereunder, and, if it was proven there was not, there should be no royalty or money paid;” that this was the intention at the time the contract was made, but that it was “omitted from the written agreement by mistake or oversight. Defendant therefore asks that the written agreement or conveyance be reformed so as to express the real intent of the parties at the time as indicated above.” It is an old and...