McDaniels v. Whitney

Beck, Oh. J.

— The plaintiff’s claim for relief is based upon the following state of facts: Plaintiff being desirous of purchasing lands in Cass county, entered into negotiations with defendant for that purpose. At that time the defendant held the title of 371 acres of land near the town of Atlantic, and was negotiating for the purchase of another eighty acre tract contiguous or near to the tract owned by him. He also owned certain lots in Atlantic and was doing a hanking business there. Plaintiff was willing to purchase the tract of land first named, in case he could also acquire the eighty acre tract, upon which was an eligible building site. He also contemplated entering into the banking business in Atlantic and building a house in the town. As a result of the negotiations between the parties, the defendant executed and delivered to plaintiff an instrument of which the following is a copy:

“Whitney’s Read Estate and Surveying Oeeice, oe Cass County, Iowa.

Atlantic, March 2d, 1869.

Proposition made by me to Mr. McDaniels: I hereby agree to give up the banking business in Atlantic to Mr. McDaniels, and the best lot he can pick now in our town, providing he will now build upon the same and become a permanent resident of our county, and take $16.50 per acre for the farm of three hundred and seventy-one acres, in sections 33, 34, and 2S, of township 77-36, as marked blue on his plat, and give up to said McDaniels my chance of purchasing the two forty-' acre lots of which Judge Temple is acting as agent. This proposition is not a standing one, but to be decided within two days from date. E. H. Whitney.”

Before the expiration of the time for which the proposition was to run as therein fixed, viz: on the 4th of March, plaintiff paid defendant $400, and executed a promissory note, due in ten days, for the balance of the purchase money of the 371 acres of land, at the price nientioned ’ in the proposition. *62 Defendant executed a bond for a deed to be executed for the land upon the payment of plaintiff’s note at maturity thereof and made and signed the following supplement to the proposition : “This contract is continued in force for ten days.— F. IT. Whitney.” At the same time there was paid upon the contract $33.35 and the following receipt, written thereon or added thereto, was executed by defendant: “Received of John McDaniels, $33.35 hereon. — F. IT. Whitney.” At the expiration of the ten days, the promissory note of plaintiff was paid and defendant executed a deed for the 371 acres of laud. The agent of the owner of the eighty acres of land, with whom defendant was negotiating was notified by plaintiff of the arrangement in regard thereto between himself and defendant and defendant also directed him to let plaintiff have the land. In May following this agent received from the owner a deed in blank and advanced him the purchase price agreed upon, tod afterward received that sum from defendant and filled up the deed with his name and delivered it to him. Plaintiff has- demanded a conveyance of the land to himself and has offered to pay defendant the amount paid by him for the land.

A large mass of testimony was introduced by the parties and is found in the abstract, much of which is incompetent and more unnecessary in order to determine the rights of the parties under the instrument and facts above set out. As to these facts there can be no dispute.

i. Contbaci: divisibility, In order to arrive at .a conclusion upon the question as to the right of plaintiff involved in the case, it is important Urst to consider and determine the effect of. the instrument executed by defendant. In our opinion it was, in its original shape, a proposition to enter intot wo distinct and divisible contracts. See 2 Parsons on Contracts, 517 and notes. The first one to give up the banking business in Atlantic and to convey a lot of the character indicated, in consideration plaintiff should become a permanent resident of Cass county, and build a house upon the lot to be conveyed. Here is one of the proposed contracts and the consideration upon which it is to be based.

*63 The instrument contains a proposition to enter into another contract, namely, to convey 371 acres of land and “give up” defendant’s “chance” of purchasing certain other lands. The consideration for this proposed contract is $16.50 per acre for the 371 acres of land. That defendant proposed to sell the 371 acres and relinquish his opportunity or “chance” of buying the eighty acre tract there is no doubt; and it is equally plain that these two acts were coupled together in the proposition. The consideration therefor was to be the $16.50 per acre for the 371 acres. Now this proposition was accepted on the 4th of March by the payment of $400 by plaintiff and the execution of a bond by defendant for the land, the title of which was in him. It then became a contract and by the express agreement of the parties, .witnessed by the supplemental writing, was to be binding for ten days upon defendant; that is, plaintiff was to have ten days in which to perform his contract and during that time defendant was bound by it. Before the expiration of the ten days plaintiff paid the amount of the money fixed by the terms of the contract and defendant executed a deed for the 371 aci’es of land. Plaintiff fully performed his part of the contract; therefore its' obligation is fastened upon the' defendant. He has not fully per- . formed his part for he did not “give up his chance” to the eighty acres, of land. He in good faith was bound to carry out his undertaking. He could not after the contract acquire the land, for the purport and intention of the contract are, that plaintiff may acquire it and defendant shall do nothing to defeat him in its acquisition. But defendant did violate this contract; he did himself acquire the land. Equity will enforce his solemn obligation and require him to place plaintiff in the position he would have been in if the defendant had in.good faith kept his contract. In that case plaintiff would have become the owner of the land. No objection exists to this relief on the ground of the delay of plaintiff in endeavoring to obtain a deed for the land. Defendant made no objection thereto before he acquired the title and gave no notice which would have demanded haste on the part of plaintiff. In fact defendant without notice to or demand upon plaintiff *64 took the deed from the agent of the owner of the land without any delay. Good faith required him, instead of pursuing this course, to notify plaintiff of the fact that the deed could be obtained.

It is proper to remark here that the receipt of the $33.35 indorsed on the contract is claimed by defendant to be payment upon the town lot; plaintiff claims that it was payment upon the contract generally. Whichever statement of fact be true, the conclusion we reach is the same. It is based upon the view we take that the contract is divisible and that, as to the eighty acres of land, plaintiff has fully performed his part. The facts we have above stated are amply established by the evidence. Our construction of the contract is in harmony with these facts and the intention of the parties as shown by their situation, surroundings and other circumstances which we are authorized to consider in order to discover such intention.

The District Court, by proper decree directed defendant, upon receiving the amount he had exqtended in the purchase of the land, to convey the same to plaintiff. No objections are made to the form or terms of the decree. It ought therefore in my opinion to be Affirmed.