Smith v. Miller

Decision Date21 June 1938
Docket Number44309.
Citation280 N.W. 493,225 Iowa 241
PartiesSMITH et al. v. MILLER et al.
CourtIowa Supreme Court

Appeal from District Court, Marshall County; L. J. Kirkland, Judge.

Action in equity to rescind a real estate contract and recover back the down payment of $300, the grounds of rescission being fraud and deceit practiced upon the plaintiffs. Decree dismissed the petition and plaintiffs have appealed.

Reversed and remanded.

Willett & Willett, of Tama, for appellants.

Boardman & Cartwright, of Marshalltown, for appellees.

HAMILTON, Justice.

The circumstances surrounding the execution of the contract briefly stated are these: Plaintiff John P. Smith was a man 78 years old, a widower, and Margaret Livingston, a widow woman of 52 years of age, was his housekeeper. She had formerly lived in Chicago where she owned a small bungalow property. She came to Iowa in the year 1933 to nurse her brother's wife. Smith's deceased wife was a sister to Mrs. Livingston's brother's wife. After the death of Mr. Smith's wife, Mrs. Livingston went to Montour to keep house for Mr. Smith. They decided to look for a rooming house in Marshalltown and jointly purchase the same and live in a portion of it and rent the remaining rooms. Accordingly, in the month of August, 1936, they went to Marshalltown and called upon a Mr. Adkison, a real estate broker. At that time, he had listed what was known as the Monte Miller property on South Third Ave. in Marshalltown. The plaintiffs with the land agent, went to call at the Miller place, a large rooming house. They saw Mr. Miller out on the lawn. During the conversation, Miller was asked by the plaintiffs how the house was heated and he replied that it was " furnace heated throughout" . Miller showed them through the house and down into the basement where there was a large furnace. As they were looking through the upstairs, Mr. Miller opened the door to one of the rooms and Mrs. Livingston spied a small heater in the room and said to Miller: " I thought you said the house was furnace heated throughout," and he said: " It is, but this old couple has two rooms and they thought last winter that it was awfully cold." This is testified to by both the plaintiffs and the land agent and is nowhere denied. Neither of the defendants was placed on the witness stand. The only evidence offered on behalf of the appellees was the introduction of the record of the deed transferring the property from Mr. Miller to Mrs. Miller in 1927. After the land agent and Mr. Miller were through talking and showing the property, Adkison had a talk with Dora Miller to ascertain if she was willing to sell and to arrange about the commission which was finally agreed upon, and the next day, August 11th, the contract was drawn and signed in the land agent's office by both plaintiffs and defendants and a $300 down payment was made and receipted for. In a very few days thereafter a prospective tenant of the plaintiffs examined the property and she ascertained that four of the upstairs rooms were not furnace heated, there being no registers or connections from the furnace with these rooms, and she communicated this fact to plaintiffs. They went immediately to the land agent and called his attention to the fact and the agent frankly admitted that the property was represented to be furnace heated throughout, and that relying on Miller's statement, he, Adkison, so represented it to them. Adkison took the plaintiffs immediately to see Miller concerning the matter. At this meeting, the following colloquy took place, as testified to by both the plaintiffs: Mrs. Livingston said to Miller: " How come you sold us this house when it was not furnace heated upstairs?" and he said: " I got stung." To which Mrs. Livingston said: " Oh, that is why you wanted to sting us," and he said: " Why not?" Later, on August 27, 1936, plaintiffs, through their attorneys, formally notified the defendants, by registered letter, of their election to cancel the contract and asked for the return of their $300, making formal demand therefor. At the conclusion of the trial, the court dismissed plaintiffs' petition and rendered judgment against plaintiffs for costs on the grounds that the " equities in this matter are with the defendants."

Appellees have not favored us with a brief and argument and did not appear to argue the case orally. They each filed separate answers admitting the contract and the down payment but denying generally all other allegations of the petition. The only inkling we have as to appellees' theory must be gleaned from the objections to the testimony and from this we assume the theory of defense to be that Mrs. Miller, who held the record title, but who apparently permitted her husband to act with unlimited authority in this matter, now claims she did not...

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