Lunn v. Guthrie
| Decision Date | 01 February 1902 |
| Citation | 88 N.W. 1060,115 Iowa 501 |
| Parties | ELIZA LUNN v. GUTHRIE & BOYLE, A. W. GUTHRIE AND W. H. BOYLE, Appellants |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. C. P. HOLMES, Judge.
PLAINTIFF was the owner of a house and lot in the city of Des Moines. Defendants, as a firm, were engaged in the real estate business in said city. In the fall of the year 1894 plaintiff placed her property in the hands of defendants for sale. On September 28th, through negotiations had by defendants, plaintiff entered into a written contract for the sale of said real estate to M. H. King. By the terms of this contract she was to receive from King for said property $ 1,150 in cash, a deed to lots 86 and 87 Washington Heights Des Moines, and King was to assume the sewer tax then due on plaintiff's property. The matter was left for completion with defendants. Subsequently King conveyed lots 86 and 87 to his son, who mortgaged them to a third party for $ 540. In November following, plaintiff executed a deed to her property, in pursuance of the contract, to M. H. King, and gave it into possession of defendant Boyle, with the understanding, as claimed by plaintiff, on the part of all concerned, that the sale was to be completed on the following terms: King was to pay $ 960 in cash, have lots 86 and 87 conveyed to plaintiff subject to the $ 540 mortgage, and secure plaintiff for $ 190, being the difference between the cash payment first agreed upon and the amount of $ 960, and also against the $ 540 mortgage on lots 86 and 87 by a second mortgage on the property sold by her to King, subject to a $ 1,500 incumbrance, and also by a first mortgage on a grading outfit owned by King. Notes were to be, and were in fact given for these sums so secured; one note being for $ 190 and the other for $ 540. In January following, the transaction was completed by defendant firm; but instead of plaintiff getting a first mortgage on the grading outfit, and a mortgage on the property she sold, subject to an incumbrance of $ 1,500, she received a mortgage on lot 101 Washington Heights, of little value; and the mortgage on the property she conveyed was subject to a prior mortgage of $ 2,700. The cash and papers were delivered to plaintiff on January 7, 1895. She filed the mortgage for record the next day. Within two or three days thereafter she went to California. She did not know the contents of these papers until some four or five months later, when they were sent to her in California. Plaintiff remained in California, and no complaint was made by her until the spring of 1897, and no claim set up against defendants until this suit was brought, which was in the month of September, 1898. The action is for damages. The answer avers that plaintiff had full knowledge of all the facts of the transaction, and accepted the mortgage and cash, and still retains the same. There was a jury trial, resulting in a verdict for plaintiff for $ 1,000, with interest. From the entry of judgment thereon, defendants appeal.
Reversed.
Dale & Allen for appellants.
John Newburn and C. C. Cole for appellee.
We cannot undertake to follow counsel for appellants in their discussion of the case. Their voluminous argument treats the subject in such detail that we should have to extend this opinion to an undue length, were we to take up the propositions discussed, and give attention to the reasons assigned and authorities cited in support of their various positions. Let us first consider and settle some general rules.
As no fraud is charged, plaintiff has no right of action against defendants, who were her agents, if, as between her and King she was bound by the contract with him when this action was brought. In effect, this was the theory adopted by the trial court in its charge. Now, what were her rights, as against King, when she discovered the consideration was not what she had bargained for? She could affirm or ratify what her agents had done, or she could rescind. To rescind the contract, she would have to return or offer to return what she had received under it. National Impr. & Construction Co. v. Maiken, 103 Iowa 118, 72 N.W. 431; Eadie v. Ashbaugh, 44 Iowa 519. This tender should be made at the place where the property was received. In such a case the tender must be pleaded, or an offer of return made in the petition, as it is an essential element of plaintiff's case. McCorkell v. Karhoff, 90 Iowa 545, 58 N.W. 913. There is no allegation in the petition that plaintiff ever sought to rescind the contract with King. We have, then, this situation. Plaintiff received and still retains the consideration taken from King. In this action against her agents who made the contract with King, the...
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