Laubscher v. Mixell

• Decision Date: 30 June 1915
• Docket Number: No. 30146.,30146.
• Citation: 153 N.W. 335,171 Iowa 88
• Parties: LAUBSCHER v. MIXELL.
• Court: Iowa Supreme Court

171 Iowa 88

153 N.W. 335

LAUBSCHER

v.MIXELL.

No. 30146.

Supreme Court of Iowa.

June 30, 1915.

Appeal from District Court, Cedar County; F. O. Ellison, Judge.

Action to recover a commission alleged to have been earned in procuring an exchange of tracts of land resulted in a verdict and judgment as prayed. The defendant appeals. Reversed.J. C. France, of Tipton, for appellant.

C. O. Boling and W. G. W. Geiger, both of Tipton, for appellee.

LADD, J.

[1] Defendant owned a farm of 140 acres in Howard county, and the evidence was such that the jury might have found that he employed plaintiff to procure an exchange for a farm of 20 acres near Mt. Vernon owned by John Fulwider. After some negotiations the defendant on Saturday offered to exchange by accepting $14,000 for his land and allowing $11,000 for that of Fulwider. Fulwider was notified of this on Monday following, and signified his acceptance of the proposition on Wednesday, and offered to enter into a contract stipulating for the exchange of deeds and the payment of the difference on March 1st following. Thereupon the defendant stated that he would not close the deal. The evidence disclosed that the 20 acres of land belonging to Fulwider was occupied by himself and wife as a homestead, that his wife was willing to make the exchange, had so informed plaintiff, and would have signed any contract presented for the purpose of effecting the exchange, but had signified her assent to the acceptance of defendant's offer to no one except her husband, whom she told he could sign a contract for her, but was never requested to sign a contract. She was not at Tipton at the time her husband offered to enter into the contract. On the other hand, the defendant testified that he had informed plaintiff that unless the deal was made on Monday it would be off, as he had to make an answer to indicate what he would do in the matter of an exchange with another party, and that a contract was never tendered to him. It will be observed that no written contract was entered into and none tendered which would be enforceable.

[2][3] Section 2974 of the Code provides that:

“No conveyance or incumbrance of or contract to convey or incumber the homestead, if the owner is married, is valid, unless the husband and wife join in the execution of the same joint instrument, whether the homestead is exclusively the subject of the contract or not, but such contracts may be enforced as to real estate other than the homestead at the option of the purchaser or incumbrancer.”

And this statute cannot be obviated by the oral assent of the wife. Donner v. Redenbaugh, 61 Iowa, 269, 16 N. W. 127;Stinson v. Richardson, 44 Iowa, 373. It is well settled that a...