Heard v. Nancolas
| Decision Date | 12 December 1919 |
| Docket Number | 32845 |
| Citation | 175 N.W. 13,187 Iowa 1045 |
| Parties | G. A. HEARD, Appellant, v. F. NANCOLAS, Appellee |
| Court | Iowa Supreme Court |
Appeal from Franklin District Court.--G. D. THOMPSON, Judge.
ACTION to reform a written contract. The district court dismissed plaintiff's petition. Plaintiff appeals.
Affirmed.
John M Hemingway, for appellant.
E. P Andrews, for appellee.
On the 5th day of June, 1916, the plaintiff and defendant entered into a written contract for the exchange of certain properties. In this contract the defendant undertook and agreed to convey to the plaintiff, by warranty deed, on or before the 1st day of March, 1917, for a consideration, the adequacy of which is not in controversy here, the east half of the northwest quarter of Section 11-91-21, subject to mortgage incumbrance of $ 7,500, and to pay plaintiff at said date the sum of $ 8,700, and further agreed to furnish an abstract showing marketable title free from incumbrance, except any tax that may be levied or assessed against the property for drainage purposes, prior to delivery of deed, and subsequent to the date of this contract.
The controversy arises here over that provision of the contract which excepts tax levied or assessed against the property for drainage purposes, prior to the delivery of deed, and subsequent to the date of the contract. It is the claim of the plaintiff that this provision is found in the printed form in the contract; that it was not read to him; that he didn't know it was there; that the scrivener who prepared the contract assumed to read all the contract, but omitted this portion. The scrivener was the cashier of the Citizens National Bank, and was employed by both parties to reduce the contract to writing. Plaintiff and his wife were both present at the time the writing was prepared and signed by the plaintiff. One Demaris was then claiming to represent defendant. The writing which, upon signing, expressed the contract between the parties, was not signed by the defendant, Nancolas, at the time it was signed by the plaintiff. After it was prepared, and signed by the plaintiff, it was left with Robinson for the defendant's signature. Defendant came in later, and signed the writing, with the contract as therein expressed. The evidence does not show the extent of Demaris' agency with respect to this property. It does not show that he assumed to make a binding contract with the plaintiff. The contract became binding when the writing evidencing the contract was signed by the defendant, Nancolas. There is no showing that Nancolas had any knowledge of any agreement made between Demaris and the plaintiff, except such as was expressed in the writing, nor does it appear that Demaris had authority to make any other contract than that expressed in the writing. The contract, as expressed in the writing, is the only one which this record shows the defendant had knowledge of, or personally consented to. We are not advised that defendant would have signed this writing and bound himself to the contract therein expressed, if the covenant complained of was omitted from the contract. Inasmuch as there is no evidence of the extent of Demaris' authority to act as agent for the defendant, no evidence that he had authority to bind the defendant by any representations, except such authority as might grow out of an approved agency, the defendant cannot be bound by any statements or representations made by Demaris which are not shown to be within the scope and power of his agency. The best this record shows is that Demaris assumed to act for the defendant; that he entered into negotiations with plaintiff for the exchange of land; that plaintiff went with Demaris to the scrivener agreed upon between them, to prepare a writing which would evidence the contract; that the scrivener prepared the writing, and the same was signed by the plaintiff. Demaris did not assume authority to execute the writing for and in behalf of Nancolas, the defendant, and it does not appear that he had authority to do so. It was left with this scrivener, unexecuted by anyone on the part of the defendant, for defendant's approval and signature. Defendant later came in, found the contract in the form in which it was when signed by plaintiff, and signed the same. It was still left with Robinson by mutual agreement. During this time, and up to the time of the execution of the deed hereinafter referred to, the plaintiff had no communication with Nancolas touching this contract or the exchange of this property, although he knew Nancolas, and met him quite frequently.
Both could read and write. Plaintiff claims that Robinson assumed to read to him the whole of the contract, but failed to read the part excepting the drainage assessment hereinbefore referred to, and he asks to have the written evidence of the contract reformed, so as to have eliminated from it this provision; and this is based on the theory that the understanding and agreement between him and the defendant's agent, at the time the writing was made, was that he was to have the land, free and clear of incumbrance, except the mortgages aforesaid.
It appears that, prior to the making of this writing, plaintiff asked Demaris whether or not there was any drainage tax assessments against the land. He says that, when he was making the deal with Demaris, as agent for the defendant, there was talk about a drain. He was asked this question:
On cross-examination, he was asked:
It appears by stipulation that drainage district No. 27 includes the land in question; that the petition for this district was filed in the auditor's office of Franklin County on June 24, 1915; that the hearing on the establishment was on February 9, 18, and 23, 1916; first report of the commissioners February 15, 1916; hearing of the claim for damages, February 23, 1916; establishment, February 23, 1916; hearing on benefits, December 13, 1916, and on January 12 and February 16, 1917; and that all of the foregoing matters were entered of record in the auditor's office of Franklin County on the respective dates set out above; that a copy of the notice of assessment of benefits, dated November 9, 1916, was mailed to the various owners indicated thereon, on or about that date, and that the same shows the correct amount of the drainage tax assessed against this property, to wit, $ 335.12 for one 40 and $ 238.96 on the other 40. The record further discloses that, on or about the 14th of November, 1916, defendant executed and delivered to the plaintiff a warranty deed for the premises described. The same was accepted by the plaintiff, and, in December, 1916, the plaintiff took actual possession of the land deeded to him.
From the fact that defendant subsequently signed this writing, and thereby ratified the contract, as therein expressed, we may assume that Demaris had authority from defendant to do the things which the record shows he did do with respect to this property, for and in behalf of the defendant. It will be noted that the writing made to evidence the contract was prepared by one who was agreed upon by both Demaris and the plaintiff. There is no evidence that the defendant had any notice of any other contract except that expressed in the writing, and, when he came to execute the contract, the writing was before him; and the writing gave evidence, and the only evidence, to the defendant of the contract which had actually been made between Demaris and the plaintiff. He signed it, and, by signing, became bound...
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