Town of Anamosa v. Wurzbacher , 37 Iowa 25 ( 1873 )

Day, J.

Counsel have agreed that the evidence establishes the fact found by the referee, “ That the clause, in the agreement of submission, providing that if the judgment is not paid within thirty days, it shall be deemed abandoned, does not express the agreement of the parties, and was inserted by accident, and was not part of the agreement.” With this concession, every other fact claimed by appellant may be admitted, and still plaintiff is not entitled to the relief asked.

The case amounts to no more than this. It was agreed that the judgment should be paid in a town order within thirty days. Before the expiration of that time defendant caused execution to issue. Plaintiff made no tender of the order within the thirty days agreed upon; but on the 24th day of October, forty-eight days after the rendition of judgment, and eighteen days after the expiration of the time for paying in the town order, without any offer of performance on its part, instituted this proceeding for injunction. Under such circumstances plaintiff has no standing in a court of equity. He who asks equity must do equity.

Affirmed.