Peoria Tractor Corp. v. Mason
| Decision Date | 05 April 1921 |
| Docket Number | 33734 |
| Parties | PEORIA TRACTOR CORPORATION, Appellee, v. W. E. MASON, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--J. B. WALLINGFORD, Judge.
ACTION at law to recover from defendant $ 500 paid by plaintiff to defendant for a lot of land, which was not conveyed. Plaintiff claimed there was a shortage in the land, and in its petition elected to rescind. Five or ten days thereafter defendant sold the tract to other parties, at the same price. The defendant claimed, among other things, that plaintiff had repudiated the contract, and therefore had no right to rescind. Trial to the court, without a jury. Judgment for plaintiff. Defendant appeals.
Affirmed.
Guy A Miller, for appellant.
R. M Haines, for appellee.
As to disputed facts, the finding of the trial court has the force of a jury verdict. On May 29, 1919, plaintiff and defendant, by their agents, entered into a written contract, by which plaintiff agreed to buy, and defendant agreed to sell and convey, by warranty deed, accompanied by abstract showing good title, the following real estate in Polk County, Iowa: Lot 6, of the official plat of the southwest quarter of Section 6--78--23, except 120 feet, measuring from the east lot line of the street as laid out on the east side of the said lot. Five hundred dollars was to be paid, and was paid, on the execution of the contract, and the balance of the purchase price was to be paid upon delivery to plaintiff of a sufficient warranty deed, with abstract showing good and merchantable title. Defendant guaranteed that the tract of land before described should be of an area of at least 4 1/4 acres in extent, and not to exceed 4 3/4 acres, and the contract recites that it was the understanding of both parties that the said tract of land is approximately 4 1/2 acres. Abstract was to be furnished within two weeks, and plaintiff was to have a reasonable time, not to exceed 60 days, from the execution of the contract, to examine the title, and have the metes and bounds of the tract surveyed and the corners located. The balance of the purchase price was to be paid on or before the expiration of the 60-day period before mentioned, and as soon as plaintiff's counsel should find defects in the title, defendant was to be given a reasonable time to perfect the title and meet the requirements of plaintiff's attorney. Defendant covenanted that the title described should be conveyed according to the terms and provisions of the contract, free and clear of all liens and incumbrances.
Plaintiff alleged in his petition that the land was not free from liens and incumbrances, and did not contain 4 1/4 acres, and that defendant was unable to carry out and perform the terms of his contract; that defendant has sold the land, and refused to repay plaintiff the $ 500 paid on the contract.
Defendant admits the execution of the contract and the payment of the $ 500; alleges that the land was free of all liens and incumbrances; alleges that the tract contained more than 4 1/4 acres, and less than 4 3/4; says he was ready, able, and willing to perform his part of the contract. No evidence was introduced by defendant, but his brother and agent testified as plaintiff's witnesses, and the letters were in evidence by stipulation.
Defendant lives in Chicago, but he was represented by his brother, E. R., in the transaction, and one Trent was acting as the agent of the defendant in securing plaintiff as a purchaser. E. R. testifies that a deed was made out and exhibited to the partner of plaintiff's attorney, but that no tender of the deed to any officer of the company was made, and it was returned to Chicago. After the execution of the contract, plaintiff had the land surveyed, and there was some correspondence between plaintiff's attorney and defendant's agent. The matter was turned over to Mr. McDonnell, vice-president of plaintiff company. Defendant tried to get McDonnell by phone several times, but had no talk with him about the matter. Before the contract was made, McDonnell, Trent, and other officers of the company went out to the land. McDonnell testified, over objection by defendant, that Trent pointed out the tract of land; that there was a fence around the property; that they discussed the acreage; that the tract pointed out was the land lying west of the old soap factory; and that Trent pointed out the land and said that was the piece of land they wanted to sell; that the west end of the tract was not marked, nor was the line between the soap factory tract and this tract, but that these points were pointed out by Trent; that Trent said there were about 4 3/4 acres. McDonnell further testifies that he was appointed by his company to take up the matter of this contract with Mason; that that was after the Dickinson survey had been made; that he knew nothing of the sale to the Campbell Heating Company until after it was made.
It is thought by appellant that plaintiff repudiated the contract but defendant's brother testifies that plaintiff did not refuse to take the property, unless the correspondence so shows. We do not think the correspondence does show a refusal. On the contrary, after the survey was made, counsel for plaintiff wrote defendant that, according to the survey, there was nearly an acre short, and suggested plaintiff's willingness to confer and adjust the matter by taking the property at the same price per acre, with a reduction for the shortage. At one time, defendant seemed inclined to do that. The correspondence began August 26, 1919, which was after the 60-day...
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