Stewart v. Pier

• Decision Date: 04 April 1882
• Citation: 11 N.W. 711,58 Iowa 15
• Parties: STEWART v. PIER
• Court: Iowa Supreme Court

11 N.W. 711

58 Iowa 15

STEWART v. PIER

Supreme Court of Iowa, Des Moines

April 4, 1882

Appeal from the Dubuque Circuit Court.

ACTION of forcible entry and detainer, brought before a justice of the peace, to recover the possession of a lot in the city of Dubuque. Upon an appeal to the Circuit Court a verdict and judgment were had for plaintiff. Defendant appeals.

AFFIRMED.

R. W Stewart, for appellee.

D. J Lenehan, for appellant.

OPINION

BECK J.

I.

The plaintiff leased to defendant the north 120 feet of lot 747, in the city of Dubuque, for the term of five years. The following covenants in the lease, in the view we take of the case, are the only parts of the instrument that need be set out, as our decision turns upon the interpretation of this part of the instrument.

"It is herein further mutually agreed that this lease is subject to and is terminated by the sale of said premises herein leased, by the said party of the first part, and on the condition that the said party of the first part shall pay to the party of the second part one-half the value of improvements made on said premises by the party of the second part. Improvements to consist of one ice-house, and if the said premises are not sold within three years, then the said party of the first part shall not pay to, or be liable to, the said party of the second part for one-half or any portion of the value of said ice-house. It is further agreed that the said Philip Pier, shall have preference over others to re-lease or purchase said premises on said party of the first part's conditions."

Under these covenants the plaintiff claims that the lease was terminated by the sale of the property, more than three years after the commencement of the term provided for in the lease, and that defendant waived his right under the lease to purchase the property.

The lease was executed in January, 1878. On the 10th of August, 1880, plaintiff executed a contract to a railroad corporation, giving it the option to purchase the property at a price and upon terms specified. Under this contract, if the purchase was made, the possession of the property was to be delivered November 15, 1880. The contract was assigned to another railroad company, which transferred it to the city of Dubuque. On the 15th day of November, 1880, plaintiff entered into a contract to sell the property to the city, the conveyance to be made on the 10th of January, 1881, and the possession of the property to be delivered February 15th, next following. The evidence tended to show that the contract with the city was made in pursuance of the optional right it acquired to purchase the property under the contract of plaintiff, assigned to it. The optional contract provided for a sale for cash; the contract with the city stipulates that payment shall be made in city warrants, or other satisfactory paper, drawing interest at eight per centum per annum. By the contract with the city plaintiff became bound to prosecute proceedings to recover the possession of the lot. On the 27th day of January, 1881, plaintiff executed a deed for the property to the city. There was evidence tending to show that before the execution of the contracts above referred to, plaintiff offered to sell the property to defendant under the convenant of the lease, giving him the preference as a purchaser over others, but defendant declined to purchase declaring that he could not, and authorizing plaintiff to sell to the railroad company.

II. The court instructed the jury, 1st, that the sale of the property as contemplated by the terms of the lease, was made after January 1, 1881,...