Lillie v. Case
| Decision Date | 21 June 1880 |
| Citation | 6 N.W. 254,54 Iowa 177 |
| Parties | LILLIE v. CASE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Chickasaw circuit court.
The plaintiff brings this action for the enforcement of the specific performance of a contract entered into by letter for the conveyance of 200 acres of land. The cause was referred to W. A. Hoyt, Esq. Upon the filing of the referee's report a decree was entered for the plaintiff as prayed. The defendant appeals.Hand & Spriggs and J. S. Root, for appellant.
J. W. Kellogg, Lawrence & Perrin and L. L. Ainsworth, for appellee.
1. The defendant complains of the action of the court in striking from the answer several paragraphs, on the motion of the plaintiff. The paragraphs stricken out contain mere personal demands in favor of defendant against the plaintiff, having no connection whatever with the alleged contract for the conveyance of the land. They were properly stricken out.
2. The defendant also complains of the action of the court in striking out certain portions of the defendant's depositions. The parts stricken out, for the most part, relate solely to the matters stricken out of the answer. We need not determine whether any part of the deposition was suppressed which should be considered, for we are of opinion that if the entire deposition be considered no modification should, on account thereof, be made of the facts reported by the referee.
3. We have examined the evidence with care. In our opinion it supports the finding of facts submitted by the referee. The facts found and reported by the referee are as follows:
“ First. That on or about the twenty-seventh day of May, 1867, a written contract was entered into by and between the defendant, E. W. Case, as the guardian of certain heirs of one Amos Prescott, deceased, of the one part, and the plaintiff in this action and Fanny A. Lillie, his wife, of the other part, of which the following is a copy, to-wit:
‘WATERBURY, May 27, 1867.
This may certify that we agree to provide for, feed and clothe and school, in a good and respectable manner, the minor heirs, four in number, of Amos Prescott, late of Waterbury, for the sum of two hundred dollars per year, so long as their guardian may think it best and advisable, or until they shall become of age, and in case of sickness we are to pay all expenses thereby incurred.
E. W. CASE, Guardian.'
Second. That at the time of the commencement of this action none of the heirs of said Amos Prescott had become of age, neither had the said E. W. Case rescinded said contract.
Third. That the plaintiff in this action, and his said wife, entered upon the performance of said contract, and did provide for, feed, clothe and school said minor heirs, in substantial compliance with said contract, until 1872, when Lydia Jane Prescott, the eldest of said heirs, left said plaintiff and has not been provided for by him since said time; that plaintiff provided for the remaining three of said heirs, under the provisions of and as agreed in and by said contract, until March, 1873, when Harvey J. Prescott, one of said heirs, left the said plaintiff; that the said Lydia Jane and Harvey J. left this plaintiff voluntarily, and not for want of proper care; that after said last-mentioned date plaintiff continued to provide for the two remaining minor heirs, in compliance with the terms of said contract, until the commencement of this suit.
Fourth. That by virtue of his performance of said contract the said plaintiff became entitled to recover of said E. W. Case, as guardian, the sum of $918.86, up to the first day of January, 1872, being the time he provided for all of such heirs under said contract; and to the further sum of $175, being for providing and caring for the remaining three of said minor heirs up to the first day of March, 1873; and to the further sum of $58.74, being for the providing for the remaining two of said heirs from said first day of March, 1873, until October 4, 1873, the date of the commencement of this action, amounting in the aggregate to the sum of $1,152.60.
Fifth. That since the making of said contract the said E. W. Case has paid to said plaintiff the sum of $447.30, as follows: On January 6, 1868, $200.50; November 23, 1868, $50; on January 26, 1869, $50.50; on October 7, 1870, $45.50; on September 20, 1871, $50.50; and on October 7, 1872, $50; that of this amount the said E. W. Case was indebted to the said plaintiff in the sum of $256, being proceeds of two horses and a mowing machine, the property of plaintiff, received by said Case, less the reasonable costs and charges of selling the same; that the difference between the money thus paid to plaintiff and the proceeds of said property, which difference is the sum of $191.50, should be credited to said Case on the sum to which plaintiff became entitled by the keeping of said minor heirs as aforesaid; that the said Case is not entitled to any additional credit on such contract for any cause whatever, except as hereinafter reported.
Sixth. That on or about the fifteenth day of July, 1867, the defendant E. W. Case became the owner, by purchasing the same for $800, of the real estate in controversy in this action, to-wit: The east half of the north-east quarter of section eleven, (11;) the north-west quarter of the north-east quarter of section eleven, (11;) the north-east quarter of the north-west quarter of section elev...
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