Burge v. Cedar Rapids & Mo. R. R.
Supreme Court of Iowa
Appeal from Tama Circuit Cou/rt. Action to recover for damage to crops and land of plaintiff by overflow of same on last day of August and 9th day of September, 1869, caused by the embankment of defendant’s road.
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Appeal from Tama Circuit Cou/rt. Action to recover for damage to crops and land of plaintiff by overflow of same on last day of August and 9th day of September, 1869, caused by the embankment of defendant’s road. The defendant answered in general denial, and pleaded payment; and in an amendment to the answer set out an agreement, which, after certain recitals, proceeds as follows: “ And whereas, it is claimed by the said parties of the second part that the railroad embankment constructed by the party of the first part across the bottom land near and a little west of Tama city obstructs, dams…
1Opinion of the Court
Day, Oh. J.
The plaintiff having brought his action ex deHoto, and ignored the written agreement, has treated the same as rescinded. We deem it unnecessary to consider the question, usually difficult of determination, discussed by counsel as to whether the covenants in this agreement are mutual and dependent, or independent. Conceding them, for the purposes of this case, to be dependent, the right of plain*104tiff to rescind the agreement must depend' upon the following questions: First, has the agreement 'upon the part of the defendant been partly executed, by a performance of part of the…
2Cited by19 opinions
- Fagan v. HookSupreme Court of Iowa · 1905
- Stevenson v. PolkSupreme Court of Iowa · 1887
- Waters v. PearsonSupreme Court of Iowa · 1914
- Downey v. RiggsSupreme Court of Iowa · 1897
- Myer v. Wheeler & Co.Supreme Court of Iowa · 1884
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