Gilbert v. Baxter

• Decision Date: 12 March 1887
• Citation: 71 Iowa 327,32 N.W. 364
• Parties: GILBERT v. BAXTER AND OTHERS.
• Court: Iowa Supreme Court

71 Iowa 327

32 N.W. 364

GILBERT

v.BAXTER AND OTHERS.

Supreme Court of Iowa.

March 12, 1887.

Appeal from district court, Pocahontas county.

Action in equity for specific performance of an alleged contract for the sale and conveyance of real estate. The district court denied the relief demanded, and dismissed the petition. Plaintiff appealed.Nourse, Kauffman & Gurnsey, for appellant.

Robinson & Wilchrist and Hagerman, McCrary & Hagerman, for appellees.

REED, J.

The defendants J. & J. Stuart & Co. were the owners of about 8,000 acres of land in Pocahontas county. They resided and carried on business in New York city. A. O. Garlock resided in Pocahontas county, and was engaged in business as a land agent. On the second day of June, 1881, he wrote to defendants the following letter: “ Messrs. J. & J. Stuart & Co., New York--GENTLEMEN: I have a party that has some trust funds in his hands which he wishes to invest in lands in N. W. Iowa, and I think your lands in this county will suit him, if the price does. If you want to sell all the lands you hold in this county at once, I think this will be a good opportunity. If you will write me, giving your price per acre, purchaser to take the entire list in this county, I will submit price to the party, and effect a sale if possible.”

On the seventh of June the Stuarts wrote the following answer to this letter: “DEAR SIR: We have your favor of the second inst., in relation to our lands in your county. We have been getting $5 per acre for small lots; to close out all left, would sell at $4 cash.”

The person referred to by Garlock in his letter was F. M. Gilbert. After Garlock received Stuarts' letter, Gilbert made an inspection of the lands, and on the twenty-fifth of June he and Garlock entered into a written contract for the sale and purchase of the land, Garlock assuming to act as agent for the Stuarts. By this contract Gilbert agreed to pay four dollars per acre for the land, $500 of the amount to be paid in cash on the signing of the contract, and “the balance as soon as a good and sufficient deed of conveyance, with covenants, is furnished, and also abstract of title showing perfect title in the grantor in said deed of conveyance.” This contract was subsequently assigned to plaintiff. On the same day Garlock sent to the Stuarts the following telegram: “I have sold your land in this county. Write you.” He also wrote them the following letter: “I have closed a sale of your lands in this county to F. M. Gilbert at $4 per acre. Received $500, the balance to be paid on delivery of deed. You may make deed to F. M. Gilbert, of Polk county, Iowa; and you may send the deed to the Valley Bank of Des Moines, Iowa, to be delivered to Mr. Gilbert on payment of balance of the purchase money, and direct the bank to pay me my com. I will make an abstract of title to land, and send Mr. Gilbert. I send you telegram to-day.”

On the twenty-second of June the Stuarts entered into a negotiation with defendant Kinsley for the sale of the land to him, and gave him an option to buy it at $3.25 per acre, which was to terminate on the twenty-eighth of that month. They received Garlock's telegram on the twenty-seventh, and immediately sent the following answer: “Party here has refusal for all till Tuesday; will advise then.” On the twenty-eighth Kinsley appeared, and offered to take the land at $3.25 per acre, and they entered into a written contract with him by which they agreed to sell and convey it at that price. Kinsley was acting in the matter for defendant Baxter, and the land was subsequently conveyed to him in pursuance of the contract. Kinsley was informed before the contract was entered into that Stuarts had an offer of four dollars per acre for the land from Iowa, but neither he nor they knew at that time that the contract in writing had been entered into by Garlock and Gilbert; but the suit was instituted before any but a small amount of the purchase money was paid, and when the balance was paid, and the conveyance was executed, they knew of its execution, and were fully informed of the claim made by plaintiff under it. On the same day Stuarts sent the following telegram to Garlock: “DEAR SIR: We yesterday received your message as to our lands in Pocahontas county; to which we replied by wire that party here had refusal till Tuesday, (to-day,) and we now wire you party took all lands in your county. Of course, there's no more to be added on above account.”

The relief demanded by plaintiff is that the parties in whom the title is now vested be required to convey the property to him. This relief is demanded on...