Hopwood v. McCausland

• Decision Date: 11 April 1903
• Citation: 94 N.W. 469,120 Iowa 218
• Parties: C. H. HOPWOOD, Appellant, v. FRED MCCAUSLAND, Appellee
• Court: Iowa Supreme Court

94 N.W. 469

120 Iowa 218

C. H. HOPWOOD, Appellant, v. FRED MCCAUSLAND, Appellee

Supreme Court of Iowa, Des Moines

April 11, 1903

Appeal from Monona District Court.--HON. GEO. W. WAKEFIELD, Judge.

SUIT in equity for the specific performance of an agreement to sell and convey real estate. Defendant pleaded abandonment of the contract and an estoppel, and also asked reformation of the contract on the ground of mistake. The trial court dismissed plaintiff's petition, and he appeals.

Affirmed.

Jepson & Jepson, T. F. Bevington and J. L. Kennedy for appellant.

McMillan & Kindall for appellee.

OPINION

DEEMER, J.

On the 7th day of September, 1898, the parties entered into the following contract, which was partly in writing and partly in print, to wit:

"That for and in consideration of $ 13,920 dollars, payable as follows: Fifty dollars cash, the receipt of which is hereby acknowledged, nine hundred and fifty dollars October 7th, 1898, three thousand six hundred and forty dollars, March 1, 1899, nine thousand two hundred and eighty dollars March 1, 1904, at 7 per cent. interest from March 1 1899, to be secured by first mortgage on real estate hereinafter described.

"The said Fred McCausland party of the first part has bargained and hereby sells and agrees to convey by warranty deed, on or before March 1, 1899, to the party of the second part or his assigns the farm of said party of the first part situated in Monona county state of Iowa more particularly described as follows to wit: The east half of section thirty-three and the east half of the west half of section thirty-three, all in township eighty-five, range forty-five containing 480 acres more or less according to government surveys, together with all and singular the appurtenances thereto belonging, and to deliver such conveyance as aforesaid together with abstract of title showing perfect title in said first party free from incumbrance except tax for 1898. And the first party further agrees for the same consideration to deliver full possession of said real estate to said second party or his assigns on or before March 1, 1899. It is hereby agreed that if the said second party fails to pay nine hundred and fifty dollars October 7th, 1898, as above stated this contract shall be null and void and terminate by limitation and the first party shall keep the said fifty dollars as a forfeiture and damages. Party of the second part to pay $ 1.00 per acre for fall plowing done after this date."

This is claimed on the one side to be a contract for the sale of the land, and on the other as merely an option to purchase; and defendant also claims that if it is not, according to its terms, an option, it should be reformed so as to be construed as such, to meet what he alleges was the mutual intent of the parties. Fifty dollars was paid by plaintiff at the time the contract was made, but he failed to make any other payments. On September 29, 1899, he tendered to defendant the amount due on the contract, and demanded a deed; and again, on March 14, 1900, he made a further written tender and demand of performance. Defendant served no notice on plaintiff of his intention to forfeit the contract, but claims that the contract was abandoned, and that, in any event, plaintiff is estopped by his acts, conduct, and declarations from enforcing the contract. There is a decided conflict in the evidence which can be explained on no other theory than that one of the parties is testifying falsely.

Section 4299 of the Code of Iowa provides, in substance, that a contract for the sale of real estate, providing for a forfeiture, shall not be forfeited or canceled unless a written notice of intention to forfeit, and the reasons therefor, is served upon the vendee under the contract; and section 4300 provides, in effect, that within thirty days from the service of such notice the vendee under the contract has the right to perform any of the conditions broken, and, if the conditions broken are so performed within thirty days, then the right to forfeit for defaults before the service of the notice, is terminated. Section 4031 provides that the two foregoing sections shall be operative in all cases where the intention of the parties, as gathered from the contract and surrounding circumstances, is to sell or to agree to sell an interest in real estate, "any contract or agreement of the parties to the contrary notwithstanding." There is nothing in these sections forbidding the making of options, and such options, when made, will be respected and enforced.

An option is not a sale. It is not even an...