Sweney v. Davidson
| Decision Date | 19 March 1886 |
| Citation | 68 Iowa 386,27 N.W. 278 |
| Parties | SWENEY v. DAVIDSON AND ANOTHER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Des Moines circuit court.
Action in equity to foreclose two contracts whereby the plaintiff sold to the defendant Sarah J. Davidson two pieces of real estate, in the city of Burlington. There was a decree for the plaintiff, and the defendants appeal as to the ruling upon one of the contracts.Poor & Baldwin, for appellants.
J. C. Power and S. L. Glasgow, for appellee.
1. There are several grounds of controversy between these parties, but the principal one pertains to the question as to what payments have been made to the plaintiff. The defendants, Sarah J. Davidson and her husband, claim that they have paid the larger contract in full. The contract called for $2,775. They aver that they made a payment of $1,200 on the fourth day of January, 1884, and a payment of $1,200 on the twenty-fourth day of January, 1884, and another payment of $375 on the same day. The plaintiff admits a payment of $1,200 on the twenty-fourth day of January,1884, but denies that any other payment was made on that day, and denies that any payment at all was made on the fourth day of January, 1884, and claims, indeed, that the contract had not been entered into at that time. The defendants both testify to the three payments alleged to have been made by them; and, in respect to the payment of $1,200 alleged to have been made on the fourth day of January, they are corroborated by one Mary Barnett, a sister of Mrs. Davidson. The plaintiff, in his testimony, positively denies all payments except that of $1,200 on the twenty-fourth day of January, and about which there is no controversy. If the determination of the question depended upon the testimony of these four witnesses alone, we might feel constrained to say that the preponderance would appear to be with the defendants.
The contract in question was designed to be executed in duplicate. Two copies were made, and both acknowledge the receipt of $1,200 as paid in hand; but for some reason the copies, as they are shown to us, differ in date. The one held by defendants is dated January 4, 1884, and the one held by plaintiff is dated January 24, 1884. Both copies, of course, cannot be correct. If the defendants' copy is the true one, it would appear very clearly that the $1,200 acknowledged therein to have been paid, was paid on the fourth day of January, 1884; and as it is conceded that there was a payment of $1,200 on the twenty-fourth day of January, it would appear that there must have been two payments of $1,200 each, as the defendants claim. A considerable amount of evidence was introduced for the purpose of showing which was the true copy. We cannot set it all out in detail, but will refer to most of it in a general way. The defendants testify that the duplicate copies were signed in their butcher shop, on the fourth day of January, and the plaintiff testifies that they were signed in the Merchants' National Bank of Burlington, on the 24th. After a careful examination of all the facts and circumstances shown, we have to say that we think that the plaintiff's statement is correct.
The contract provided, not only for a sale and conveyance of certain lots by the plaintiff, but also for the erection thereon of a dwelling-house. The money called for by the contract, to-wit, $2,775, was agreed upon as the price of both lots and house. Now, the evidence, we think, shows pretty clearly that the plan of the house was not sufficiently settled as early as January 4th to enable the parties to fix the price. It is possible, of course, that the defendants might agree to pay a fixed sum for a house and lots without knowing what the house was to be, but it seems improbable that they did. The defendants undertake to account for the money with which they say that a payment of $1,200 was made January 4th. They say that Mrs. Davidson had, at that time, $1,700 which she brought with her to Burlington about two years before from Illinois, where she and her husband had been living upon a farm owned by her. This money, they say, was never deposited in bank, nor loaned, nor used in any way, but was kept in their house, where they had no safe; and that, too, notwithstanding the husband was absent a part of the time as a brakeman upon a railroad, and Mrs. Davidson was left alone in the house, there being no other members of the family. While the facts might be as testified to by them, no one, we think, can read their statements without some suspicion of their truthfulness.
Again, it is admitted by the defendants that they took no receipt for any money paid on the twenty-fourth day of January. They disclaim, of course, the receipt contained in the contract as applicable to that payment. According to their theory, they paid up the contract in full on the twenty-fourth of January, and took no receipt, nor did they obtain a deed. The only explanation offered by their counsel is that they were not much acquainted with business. But they had managed to accumulate considerable property, and, if their own testimony is to be believed, they were persons of thrift. We can hardly take notice that persons of...
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