Iowa Homestead Co. v. Duncombe

• Decision Date: 14 June 1879
• Citation: 1 N.W. 725,51 Iowa 525
• Parties: THE IOWA HOMESTEAD CO., APPELLANT. v. JOHN F. DUNCOMBE, APPELLEE.
• Court: Iowa Supreme Court

51 Iowa 525

1 N.W. 725

THE IOWA HOMESTEAD CO., APPELLANT.

v.JOHN F. DUNCOMBE, APPELLEE.

Supreme Court of Iowa.

Filed June 14, 1879.

Appeal from Webster circuit court.

This is an action upon four promissory notes, executed by the defendant to the plaintiff, for five hundred dollars each, and amounting, with interest, to nearly three thousand dollars. The defendant, by his answer, admits giving the notes; says they were given for a part of the purchase price of a half section of land bought by him of plaintiff, and which he immediately fenced and took possession of; that he paid at the time of purchase, in cash and taxes of 1872, six hundred dollars; that the plaintiff had no title to the land; that the consideration for the notes has failed; that he was compelled, in 1873, to purchase the land from the Des Moines Valley and Des Moines & Fort Dodge Railroad Companies, owners of the land, and paid therefor four thousand one hundred and twenty dollars; that he paid said companies in cash one thousand one hundred and twenty dollars, and the balance in the surrender to said companies of a contract for five hundred and sixty acres of land owned by said companies, whereby they acknowledged full payment and relinquished all their right, title and interest to the defendant; that said contract, at the time of its surrender, was worth three thousand dollars, and the land therein described was worth three thousanddollars; that defendant had no copy of the contract surrendered to attach to his answer. Defendant demanded judgment against plaintiff for five hundred dollars, with interest from November 21, 1872, the date of the contract with plaintiff.

There was a trial, and a verdict for defendant for seven hundred and thirty-four dollars and thirty-seven cents. The defendant remitted all of this verdict in excess of three hundred dollars. The motion for new trial was overruled, and judgment was rendered for defendant for three hundred dollars and costs. The plaintiff appeals.

Hubbard, Clark & Deacon, for appellant.

John F. Duncombe, for appellee.

DAY, J.

--I. It is admitted that the documentary evidence introduced relative to the title of the Des Moines & Fort Dodge Railroad Company to the land described in the defendant's answer, shows that the paramount, legal, fee simple title of said land was in the Des Moines & Fort Dodge Railroad Company at the time the defendant claims to have bought the lands in question from said company. The real question in controversy is whether the defendant is entitled to any, and if so, to what amount of damages from the plaintiff, on account of the plaintiff's inability to make title to the defendant.

The defendant's testimony shows that he paid upon the land, under the contract, five hundred dollars, and the further sum of fifty-five dollars and ninety-two cents, for taxes. He also executed the four notes sued upon for the deferred payments. It is evident that if the defendant paid no more for the outstanding title than the amount of these four notes and interest, he has sustained no damage, since he has acquired the title for what he agreed to pay the plaintiff. Upon the other hand, if the defendant paid more for the outstanding title than the amount of these four notes and interest, he has sustained damage to the amount of this excess of payment, and, under certain conditions, he would be entitled to recover this excess of the plaintiff, to the extent of the payments actually made under the contract, and interest. The defendant claims to have paid for the outstanding title, in cash, only one thousand one hundred and twenty dollars. The balance of the consideration of four thousand one hundred and twenty dollars alleged to have been paid, is made up of the alleged surrender of a contract with the defendant for a patent for five hundred and sixty acres of land. It is apparent the terms and value of this contract became a most material inquiry in the case. The defendant was introduced as a witness in his own behalf, and testified as follows: “I bought in the title from the Des Moines Valley Company, and paid for it in cash one thousand one hundred and twenty dollars, and surrendered the contract.” The plaintiff then objected to the contract as incompetent, irrelevant and immaterial. The objection was overruled. Plaintiff excepted. The witness further testified as follows: “The consideration was one thousand one hundred and twenty dollars in cash, and surrendering a contract which I held at the time of the Des Moines Valley Railroad Company, which was of the full value of not less than three thousand dollars. The contract was in writing. I surrendered it to them.” This closed the first direct examination. No objection was interposed to this evidence, except as above stated. The first error assigned relates to the admission of this evidence, and is as follows: “The court erred in receiving the testimony of the defendant, Duncombe, as to the alleged contract held by him to have been surrendered in the purchase of the paramount title.”

It is argued under this assignment of error that, the contract being in writing, parol evidence of its contents was inadmissible. The objection to this evidence was not placed upon the ground that the evidence offered was secondary in its character. The objection was “to the contract as incompetent, irrelevant and immaterial;” not that the contract could not be proved by parol. If the objection had been distinctly placed upon this ground, probably the defendant would have accounted for the absence of the original writing, and would have rendered parol evidence of its contents proper. The defendant, having objected upon one ground in the court below, cannot be allowed to rely upon an entirely different objection in this court. The contract was not incompetent, irrelevant or immaterial. This is the only question which the court below determined in passing upon the objection. It is this decision of the court alone which we can review under this assignment.

II. In the testimony just considered the defendant stated, without objection, that the contract was of the full value of not less than three thousand dollars. The plaintiff, upon cross-examination, introduced what the defendant admitted to be a substantial copy of the contract surrendered by him. Upon re-examination the defendant was asked the following question: “State the value of the contract in cash to you, marked exhibit B, about which you have been examined, at the time you surrendered and canceled this contract as the part consideration of the purchase of the south half of section 35, the land in controversy?” The plaintiff objected to this proposed evidence, because “it is immaterial, incompetent, irrelevant, and shows in no fact any payment or consideration which will be allowable in addition to the deed which has been introduced by the party himself.” The objection was overruled, and plaintiff excepted. “The witness answered: “The actual cash value of that contract to me I could consider, at least, three thousand dollars. I so considered it at the time I surrendered it.” The witness was then asked the following question: “State in what consisted the value of this contract to you?” This question was objected to on the same ground as above. The objection was overruled, and the plaintiff excepted. The witness answered as follows: “The value of this contract consists in the fact that it gave me title to two hundred and forty acres of land in section 25; one hundred and sixty acres of land in section 13, 89, 29. The land at the time was worth not less than eight thousand dollars. The land at that time was in controversy between...