Lewis v. Day

• Decision Date: 27 April 1880
• Parties: LEWIS AND WIFE v. DAY.
• Court: Iowa Supreme Court

53 Iowa 575

5 N.W. 753

LEWIS AND WIFE

v.DAY.

Supreme Court of Iowa.

Filed April 27, 1880.

Appeal from Polk circuit court.

The plaintiffs sold and the defendant purchased of them certain real estate, and the plaintiffs claim the defendant bound himself to pay a certain mortgage thereon executed by them. This the defendant denied, and because the conveyance tendered contained a stipulation to that effect he declined to accept it and refused to complete the purchase. This action was brought to recover damages caused by such refusal. There was a jury trial, special verdict, and judgment for the defendant. The plaintiffs appeal.Phillips, Goode & Phillips, for appellants.

Barcroft, Given & McCaughan, for appellee.

SEEVERS, J.

1. The property sold was known as the “Opera Block in East Des Moines.” The contract was in writing, the material portion being as follows:

“For said premises Day is to give said Lewises as follows: Lewises are to convey subject to the Hartford loan of $114,000, the $440 being interest. Day is to take up mechanics' liens to the amount of $5,000. Day is to give Lewises the lands as follows: * * * The mortgage to the Hartford company provides that the same is not payable for 10 years from the time the same was made, if semi-annual interest at the rate of 8 per cent. shall be paid, and Lewises are to keep Day in the matter thereof where they were before the first instalment became due, though Day must pay the instalment now due at an early day, and as soon as three days from date, on being made secure in any manner. * * Lewises are not to warrant in their conveyance as against the Hartford mortgage, that being excepted therefrom.”

At a proper time the plaintiffs offered to file an amendment to their petition, alleging “that at the making of the contract set out in their petition the defendant assumed and agreed in parol to pay off the Hartford mortgage * * * as part of the purchase price of said property, * * * when, and as the same should mature, and to hold the plaintiffs harmless therefrom,” and also offered to establish such allegations by parol evidence. The court refused to permit the amendment to be filed or to admit parol evidence to establish such agreement. This is claimed to constitute error, because the parol agreement in no manner added to or varied the written contract, and because it has uniformly been held the consideration named in the conveyance of real estate may be shown by parol to be either greater or less. This last proposition is, without serious doubt, true, and is supported by Puttman v. Haltey, 24 Iowa, 425;Harper v. Perry, 28 Iowa, 57;Trayer v. Reider, 45 Iowa, 572. In none of these cases was there a written contract containing the terms and conditions of the sale. The conveyance is not the contract. The latter must have existed before the former was executed.

Proof that the consideration was different from that named in the deed neither adds to nor takes anything therefrom, for the rule stops short of allowing parol evidence to establish that there was no consideration, and thus render the deed invalid as a conveyance of the title. The question in the present case is materially different from this. The written contract either did or did not contain a stipulation to the effect the defendant should pay the Hartford mortgage. If it did, the proposed amendment and evidence were immaterial. If it did not, it is evident, to our minds, the parol proof offered would have a direct tendency to add to or vary the legal effect of the contract. It makes no difference that the offer was to show that the mortgage was deducted as a part of the purchase price; for the appellants claim the law to be, if the mortgage was deducted from the price agreed to be paid, a promise by the defendant to pay the mortgage will be implied. If this proposition be true the legal effect of the proposed evidence would be to add to the writing such implied promise, or rather it would follow, as a legal conclusion, from the established fact. If such a conclusion would not follow, then the proposed evidence would be immaterial.

In Bowen v. Kurtz 37 Iowa, 239, and Ream v. Jack, 45 Iowa, 325, the contract existed only in parol, and these cases are, therefore, clearly distinguishable from the present. In Buckley's Appeal, 48 Penn. St. 491, there is nothing tending to show there was a written contract. The contrary, we think, clearly appears.

2. Within the time stipulated in the contract, or afterwards, as agreed upon, the plaintiffs tendered to the defendant a deed for the “Opera Block,” which contained a provision that the latter was “to pay, as a part of the purchase price of said premises,” the Hartford mortgage. This conveyance the defendant refused to accept, and complete the purchase. It is insisted the conveyance was in accord with the contract, as it should be interpreted under the allegations of the petition and the special findings. The averments of the petition referred to consist of statements showing the relative values of the property which was to be exchanged, and the answer concedes the opera block was worth more than the real estate and money defendan...