Hinsdale v. McCune

• Citation: 113 N.W. 478,135 Iowa 682
• Parties: C. M. HINSDALE v. C. E. MCCUNE, Appellant
• Decision Date: 23 October 1907
• Court: United States State Supreme Court of Iowa

113 N.W. 478

135 Iowa 682

C. M. HINSDALE v. C. E. MCCUNE, Appellant

Supreme Court of Iowa, Des Moines

October 23, 1907

Appeal from Jasper District Court.--HON. BYRON W. PRESTON, Judge.

SUIT to recover rent. There was a directed verdict for the plaintiff and from a judgment thereon the defendant appeals.

Reversed.

E. J Salmon and N. T. Guernsey, for appellant.

Morgan & Korf, for appellee.

OPINION

SHERWIN, J.

This action was brought to recover rent alleged to be due under a written lease for the term of five years. The defendant took possession of the premises in the early part of November 1903, and continued his possession until the following October. Some time in December, 1903, the parties executed a written lease for a term of five years. In the lease it was stipulated that the lessor was to heat the room and furnish the necessary water for the defendant's business as a barber, and that the room was to be used by the defendant as a barber shop, and for no other purpose. The execution of the lease was admitted in the answer, but the defendant also pleaded that it was executed and delivered pursuant to a parol agreement, made prior to its execution, that its execution and delivery should be upon the condition that the premises were suitable for the purposes for which the defendant desired to use them, and that, if it was subsequently found that they were not dry, but damp, and were unsuitable for the business, the lease should not take effect, but should be inoperative and void; that, to induce the execution of the lease, the lessor represented that tile and concrete had been used in the construction of the building, and that it had been so constructed that the premises could not become damp, but would be suitable for occupation as a barber shop; and that such representations were false and fraudulent, avoiding the lease.

As we understand the record, there was evidence supporting these defenses, and nothing to contradict it. That it is competent to show by parol that a written agreement is subject to a condition, or is not to go into effect until certain matters have been determined, is well settled. Sutton v. Weber, 127 Iowa 361, 101 N.W. 775; Oakland Cemetery Co. v. Lakins, 126 Iowa 121, 101 N.W. 778; Mt. Vernon Stone Co. v. Sheely, 114 Iowa 313, 86 N.W. 301; McNight v. Parsons, (Iowa), 136 Iowa 390, 113 N.W. 858. It is also the rule that parol evidence is competent to assail the validity of a contract when it is claimed that it was procured by fraud. Harvesting Machine Co. v. Williams, 99 Iowa 601, 68 N.W. 907. A lease is nothing but a contract, and is governed by the same rules that other contracts are. Taylor on Landlord & Tenant (9th Ed.) section 382.

The plaintiff herein had just constructed the building and will be presumed to have had personal...