Martin v. Roberts
| Citation | 102 N.W. 1126,127 Iowa 218 |
| Parties | G. H. MARTIN, Guardian, Appellant, v. WILLIAM ROBERTS |
| Decision Date | 06 April 1905 |
| Court | Iowa Supreme Court |
Appeal from Clay District Court.--HON. A. D. BAILIE, Judge.
SUIT at law to recover money paid on a contract for the purchase of real estate. A demurrer to the petition was sustained, and plaintiff appeals.
Reversed.
G. H Martin, for appellant.
F. H Helsell, for appellee.
On the 12th day of September, 1902, Michael Finnegan (the plaintiff's ward) and the defendant entered into a written contract for the conveyance to Finnegan of certain land owned by the defendant. Five hundred dollars of the purchase price was paid at the time, and Finnegan agreed to assume the payment of a mortgage then on the land, and to pay the balance of the agreed price in cash on the 1st day of March, 1903, at which time the defendant was to execute and deliver to Finnegan a conveyance in fee simple, with the ordinary covenants of warranty. The contract also provided that the defendant should furnish an abstract showing good and sufficient title in him. The petition alleged these facts, and, further, that the defendant failed to furnish any abstract of title before the 4th day of April, 1903, or until after he had been notified of the plaintiff's election to rescind the contract; that prior to the 1st day of March 1903, the defendant leased the land for a term ending March 1, 1904, and put the lessee in possession thereof, where he remained at the time suit was brought. The defendant was also charged with other breaches of the contract, which we need not further notice. The demurrer averred that the balance of the purchase price of the land was due unconditionally on the 1st day of March, 1903; that time was of the essence of the contract; and that, the plaintiff having failed to plead payment or a tender of the amount due, he had forfeited the cash payment made, and had no right of action.
The demurrer should have been overruled. By the terms of the contract, the defendant was to furnish the vendee an abstract showing good and sufficient title; and, while no particular time therefor was fixed, the law requires that it be furnished in reasonable time for examination before the contract is to be performed. It was a condition precedent, and the defendant was not entitled to the balance of the money due under the contract until he had complied therewith. Wilhelm v. Fimple, 31 Iowa 131; Maichen v. Clay, 62 Iowa 452, 17 N.W. 658; Bartle v. Curtis, 68 Iowa 202, 26 N.W. 73; Lessenich v. Sellers, 119 Iowa 314, 93 N.W. 348; Webb v. Hancher, 127 Iowa 269, 102 N.W. 1127. The contract provided for a deed with...
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