McKenzie v. Whetzel
| Decision Date | 06 April 1921 |
| Docket Number | No. 33722.,33722. |
| Citation | 191 Iowa 332,182 N.W. 388 |
| Parties | MCKENZIE v. WHETZEL (PHILLIPS, INTERVENER). |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Palo Alto County; James B. De Land, Judge.
Action in equity for the specific performance of an alleged contract to sell real estate. Intervention by a third party, who claimed also to have purchased the land of the defendant, and who asked for the specific performance of his contract. The court found against the intervener, and decreed specific performance of plaintiff's contract. Defendant appeals. Reversed.
Faville, J., dissenting.William J. Fisher, of Emmetsburg, and Carl P. Knox, of Stuart, for appellant.
Davidson & Burt and E. A. & W. H. Morling, all of Emmetsburg, for appellee.
The contract, which plaintiff seeks to have specifically performed, is found in certain telegrams and letters exchanged between the defendant and one H. M. Helgen, a real estate agent at Emmetsburg, Iowa, who acted for defendant in the sale of the North 1/2 of the South 1/2 and the South 1/2 of the North 1/2 of section 26, township 94 north, range 33, located in Palo Alto county, Iowa, containing 320 acres, more or less. The correspondence between them began on March 31st, when defendant wrote Helgen, proposing to list the above-described land with him for sale. Helgen answered the letter of defendant promptly, inclosing two listing blanks, requesting that they be filled out by the defendant, so as to show the description, price, and terms upon which she desired to sell the farm. Further correspondence between them resulted in defendant finally listing the land, which was incumbered by first and second mortgages aggregating $31,200, and also drainage taxes amounting to $1,700, with Helgen for sale upon terms which required the purchaser to assume and pay the mortgages, with interest thereon after March 1, 1920, and also the drainage taxes. On May 24th Helgen wired defendant as follows:
Defendant replied to the foregoing telegram on the same day as follows: “Sale of land satisfactory”--but on May 26th again wired Helgen:
On the following day defendant received a letter from Helgen inclosing a check for $500, which was the amount she required the purchaser to pay at the time contract of sale was signed, together with contract showing price as agreed; but defendant insists that the terms therein stated, while substantially in accordance with the listing contract, does not in some material respects comply therewith. Defendant immediately returned the check and contract, without her signature, accompanied by a letter calling Helgen's attention to the fact that the contract omitted to provide that the sale was to be subject to the ditch tax, and that a mortgage was to be executed on the crops for each year until all payments on the land were made. The price fixed in the contract for the land was $48,000. On May 29th defendant entered into another contract in writing with one Benjamin F. Phillips for the sale of the land to him upon substantially the same terms as she claims it was listed with Helgen, but for a consideration of $54,400.
Helgen and Peter McKenzie, appellee, are engaged in the real estate business together at Emmetsburg, and one-half of the commission earned by Helgen from the defendant belonged to appellee. The listing contracts which Helgen sent to the defendant, to be filled out with the price, description, and terms of sale, were not offered in evidence, and both parties rely upon the terms as stated by defendant in her letter of April 15th. In this letter defendant agreed to pay the interest on the mortgages to March 1, 1920, and the 1919 taxes. But the only reference therein to the drainage tax is a statement of the amount. The contract, which was prepared by Helgen and forwarded to the defendant, required her to furnish an abstract showing a merchantable title to March 1, 1920, and to pay the taxes and the interest on the two mortgages. The contract did not provide for a mortgage upon the crops to be grown each year upon the farm until full payment should be made for the land, nor did it refer to the drainage tax or interest due March 1, 1920, thereon.
[1] The court below held that the terms upon which the land was listed for sale, however, required the defendant to pay the interest upon the drainage taxes to March 1, 1920. Defendant maintains that it was the understanding, at the time she employed Helgen as her agent that the purchaser was to pay the drainage tax and that she was not to be liable for any interest thereon. As already stated, drainage taxes to the amount of $1,700 were unpaid. The court below, in its decree granting specific performance,...
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