Wisconsin, Iowa & Nebraska R'y Co. v. Braham

Reed, J. 1. Appeal: trial de novo: evidence certified too late. I. The final judgment in the cause was entered on the nineteenth of March, 1885, and the evidence was certified by the trial judge on the eleventh J jo °f following December. These facts are ghown by appellants’ abstract. On that state of the record, the cause cannot be tried de novo in this court. Code, § 2742; Mitchell v. Laub, 59 Iowa, 36. 2. Contract: to convey risht of way: mutuality. II. Defendants demurred to the petition, and -they assign error in the overruling of their demurrer. The petition alleges the making of the contract, the tender ° ° by plaintiff of the amount of the price agreed upon, its readiness to perform, and the refusal of defendant to permit it to enter upon the premises, and a copy of the contract is set out as an exhibit. It is an undertaking by defendant that he will convey the right of 486 way when the line of the road is definitely located and the consideration is paid. It contains no express agreement by plaintiff to construct its road through the premises, but it bound it to pay the stipulated price in case the road should be located upon the land. The point urged is that, the undertakings were not mutual, and that the writing was a mere offer by defendant to sell and convey the right of way, which could he withdrawn at any time before acceptance. The position cannot be maintained. The undertakings of the parties were dependent upon the happening of a future event, viz., the location of tbe road through the land. That was a condition precedent to the liability of either of the parties. But, when that condition was performed, the agreement, assuming that it was fairly entered into, was enforceable by either. The petition* alleged that the condition had been performed. Very clearly, we think, it stated a cause of action. Affirmed.