Wilken v. Voss

• Decision Date: 19 May 1903
• Parties: HENRY WILKEN, Appellant, v. CHRIST VOSS, CAROLINE VOSS AND JOHN VOSS, Appellees
• Court: Iowa Supreme Court

94 N.W. 1123

120 Iowa 500

HENRY WILKEN, Appellant, v. CHRIST VOSS, CAROLINE VOSS AND JOHN VOSS, Appellees

Supreme Court of Iowa, Des Moines

May 19, 1903

Appeal from Tama District Court.--HON. G. W. BURNHAM, Judge.

SUIT in equity for the specific performance of an agreement to convey real estate. The contract was made by an agent of defendant and defendant pleaded that the agreement was without authority, and that it failed to contain certain stipulations which should have been exacted from the purchaser. Trial to the court. Decree for defendants, and plaintiff appeals.

Affirmed.

Caldwell & Walters for appellant.

G. L Wilbur and C. B. Bradshaw for appellees.

OPINION

DEEMER, J.

A written contract for the sale of the land in controversy was executed by and between plaintiff, acting on his own behalf and one Martin Mee, acting as agent for John Voss, the then owner of the record title to the land, which provided, among other things, for a cash payment of $ 1,800, and contained a reservation as follows: "It is also understood and agreed that 1st party reserves machinery shed, and all wires but three on pasture fence west of the house, and shall pay 1899 tax, 1st party agrees to leave premises in as good condition on March 1st, 1900, as they are now in." The remainder of the consideration, to wit, $ 3,000, was to be paid on March 1, 1900, at which time deed was to be made by defendants, and possession delivered to plaintiff. There is no doubt that Mee was the agent of Voss, and that he had authority to sell the land on certain terms and conditions. Among these were that Voss was to have $ 60 net per acre for the land, and was to surrender possession March 1, 1900, and that, if Mee could not get more than $ 60 per acre for the land, he (Mee) was to have the use of the money received by him on the purchase price from the time of making the contract until March 1, 1900. There is a controversy regarding the reservations which Voss insists should have been made in the contract of sale, and also regarding the payment of the purchase price by plaintiff.

The rules of law involved are not in dispute. Specific performance is not granted as of right in every case, even though there be a valid contract. It will not be granted where it would be inequitable to do so, nor will it be enforced where there is strong ground for believing that the parties did not understand the contract alike. Hopwood v. McCausland, 120 Iowa 218, 94 N.W. 469. The evidence shows, beyond all question, that plaintiff, before contracting for the purchase of the land, was told by John Voss, the owner, that he should reserve an entire new two-wire fence and posts, built that season, a machine shed, three wires from a fence around what was known as the "old pasture," and a pigeon house. While negotiating with Mee for the sale, plaintiff told him (Mee) about the reservations demanded by Voss; but, instead of inserting them in the contract, he (Mee) made the reservations as they appear, and at the same time told Wilken that Voss could not hold the two-wire fence or the pigeon house, and that they should stay on the place. Mee made these statements because of an understanding he had with Voss as to what should be reserved. But for the fact that he (Mee) was informed by plaintiff himself as to the reservations defendant would insist upon, we should be inclined to hold that the...