Star Realty v. Strahl
| Decision Date | 14 November 1967 |
| Docket Number | No. 52643,52643 |
| Citation | 154 N.W.2d 143,261 Iowa 362 |
| Parties | STAR REALTY, Appellant, v. Arthur L. STRAHL and Genevieve M. Strahl, Appellees. |
| Court | Iowa Supreme Court |
Stewart, Miller, Wimer, Brennan & Joyce, Des Moines, for appellant.
Witmer, Needham & Riemenschneider, Des Moines, for appellees.
Star Realty brought this action at law in the Des Moines Municipal Court seeking to recover a real estate commission. It claimed defendants failed to perform a contract of sale by refusing to deliver possession to a ready, willing and able purchaser who then rescinded the contract. The trial court allowed plaintiff its 'out of pocket' expenses but denied recovery of the commission. Plaintiff appealed. Defendants did not cross-appeal.
On June 29, 1965, defendants entered into a multiple listing contract for the sale of their home. On August 31, 1965 the Swansons executed an offer to buy defendants' property. The offer was accepted by defendants on September 2, 1965. Possession date was 'on or about October 1'. The contract was subject to approval for a G.I. loan. Such approval was obtained on October 10. Defendants refused to sign the deed or deliver possession of the property until after January 1, 1966. Purchasers refused to wait for possession past October 22, 1965 and rescinded the contract.
A literal reading of the offer to buy indicates plaintiff had furnished a buyer and would be entitled to its commission. The controversy centers around an alleged oral understanding of the purpose of the 'possession date' of 'on or about October 1'. Defendants claim the real estate agent knew Mrs. Strahl was ill and was to have an operation. He was told they didn't know when they could give possession and that the date of October 1 was put in the contract so the loan could be approved. The actual date of possession was to be agreed upon later.
I. Plaintiff assigns as error the failure of the trial court to exclude testimony of such oral understanding as an attempt to vary the terms of a written instrument in violation of the parol evidence rule. Defendants claim plaintiff waived any right to object to certain testimony admitted over the objection because it had introduced evidence as to the meaning of such 'possession date'. As we agree, we need not consider the applicability of the parol evidence rule.
The testimony in question is that of Mrs. Strahl. It is certainly not a model of clarity. Plaintiff called her as an adverse witness. On direct examination she testified:
She was later asked by plaintiff:
On cross-examination she was asked what the discussion was with Scott about her physical condition at the time the offer to buy was signed. After the objection was overruled she proceeded to amplify answers previously given on direct examination.
On redirect examination she was asked about a telephone conversation with Mr. Hannam of Star Realty. She testified. * * * he called up and said he was going to sue me, and I told him that Mr. Scott said that he told the other people that I was going to have surgery, and they would wait. And when he called and said the Swansons were coming to look at the house, I said had Scott explained anything to them, and he said no. I was willing to give them the house, if they would understand that they had to wait for it. Like I explained to them, I wanted...
To continue reading
Request your trial
-
State v. Levy
...of two so-called character witnesses. Finding no reversible error, this court affirmed a conviction, but in so doing said, loc. cit., 154 N.W.2d 143: 'Of course we do not hold it is never a clear abuse of discretion for a trial court to rule a fair trial was had where there has been miscond......
-
Pyne v. Jamaica Nutrition Holdings Ltd.
...held that a failure to object to earlier like evidence precludes the party from later objecting. See, e.g., Star Realty v. Strahl, 261 Iowa 362, 154 N.W.2d 143, 145 (1967) (failure to object to earlier testimony by defendant constituted waiver of right to object to further questions on same......
-
Allah v. State
...of evidence of the same import is waived." Ingle v. Ingle, 42 N.C.App. 365, 368, 256 S.E.2d 532, 535 (1979). See Star Realty v. Strahl, 261 Iowa 362, 154 N.W.2d 143, 145 (1967) (failure to object to testimony waives right to object to further questions on the same subject matter); Breiner v......
-
State v. Pardock
...insist that similar proof by another competent witness is immaterial or incompetent. This case was later cited in Star Realty v. Strahl, 261 Iowa 362, 365, 154 N.W.2d 143, 145. Among other decisions expressing a similar view are Naccarato v. Village of Priest River, 68 Idaho 368, 195 P.2d 3......