The plaintiff has filed a petition for a rehearing claiming:
First, that the court has misconstrued the option in the contract sought to be enforced in this action; that the provision in the option, viz., "the second party may sell within described land at any time providing a payment of $3,000 is made on or before January 1st following such sale, leaving the payment due on or before January 1st, 1925, $4,000," means the sale made by Hammer and Opsvig, and not the sale by the plaintiff to Hammer and Opsvig. According to our view, Hammer and Opsvig had the right to sell at any time after the execution of their contract with the plaintiff, provided a payment of $3,000 was made on or before January 1st, after such sale. The sale by Hammer and Opsvig to Walker and Chamberlin was made on the 20th day of May 1920, and on November 11, 1920, they wrote to Mr. Fred Baldwin, at Chester, Iowa, as follows:
"We are going to ask you a favor and trust that you will be kind enough to answer us or write Mr. Blackwell.
"In making the deal with Mr. Walker for the farm we got from you, he paid us down to $19,000 and we assigned the contract to him. This leaves a payment for him to make of $4,000 before he gets deed from you, and the contract calls for a mortgage for the balance. We are to make a payment to you of $3,000 on January 1st according to contract, and by him paying you $4,000 on or before January 1st, 1925, there would be a first mortgage to take back for you of $14,846. In order to get our deal with Mr. Walker straightened up so as to leave a first mortgage of $15,000 even, we would ask that you take $2,846 on January 1st, leaving even $19,000 against the land. This means that you are taking $154 less on January 1st and make the mortgage $154 larger, or even $15,000." *Page 706
As stated in the opinion there is no answer to this letter in the record, but it is clear from the record that the plaintiff received the $2,846 on January 1, 1921, in lieu of the $3,000, in accordance with the provision of the option in the contract between the plaintiff and the defendants Hammer and Opsvig. It is clear from this letter that the payment of $2,846 was made under the option in the contract. It states they have made a deal with Mr. Walker for the farm; that they are to pay $3,000 on January 1, according to the contract. That statement can only mean in accordance with the provision in the option, for unless the option is exercised there is no payment to be made until January, 1925; this is also shown by the further statement in the letter, viz., this leaves a payment for him (meaning Mr. Walker) to make of $4,000 on or before January 1, 1925. The letter does not say it will leave so much for us to pay, but it says specifically it will leave so much for Walker to pay, and at the time this letter was written the land was more than ample security for the payment of plaintiff's contract. The language of the letter also shows the construction that Hammer and Opsvig placed upon the option in the contract, and no exceptions were taken to such construction until after January, 1925, four years later, when the bottom had dropped out of land values, and the land was no longer ample security for the payment of the contract debt.
Second. It is also the contention of the plaintiff that the stipulation between the parties at the trial, of the amount the defendants Walker and Chamberlin should be credited with on the counterclaim, is the sum of $350, instead of the sum of $390 and an additional sum of $350. The opinion quotes the stipulation as found in the record, but since the case is remanded for the purpose of determining how much is due on plaintiff's contract after deducting the amount due on prior mortgages on said land, which the defendants Walker and Chamberlin assumed and agreed to pay, the amount thereof to be deducted from the amount due on their contract with the plaintiff, the amount the defendants should be credited with on their counterclaim may also be determined at said time. It is so ordered.
The petition is denied.
NUESSLE, Ch. J., and BURR, BIRDZELL, and CHRISTIANSON, JJ., concur. *Page 707