ings into the radiating passageways which | result of the dissension thus aroused the city separate the surrounding lots and connect council adopted a resolution revoking the liwith the circular walk, except the passageway between lots 3 and 4, which leads from the outer driveway direct to the front of the mausoleum, and this plaintiff paved with cement. The natural surface of the ground outside of plaintiff's lot is somewhat irregular, and the effect of the grading and curb ing was to elevate the walk in places considerably above the burial lots bordering thereon. The general nature and effect of the improvements we have described is shown by the following cut from a photograph of the south front of the mausoleum and its surroundings: cense and privilege theretofore granted the plaintiff, ordered him to remove from the seven-foot walk all erections, obstructions, and material by him placed thereon, and replace in their former positions all stones and markers removed or changed by him, and upon his failure to comply with such order within 20 days the sexton of the cemetery was directed to make the required changes. Thereafter plaintiff brought this suit in equity against the city and its officers to permanently enjoin the enforcement of said order and prevent interference with the improvements he had made. Plaintiff, if we understand the record, filled some of the burial lots outside of the curb to bring them up to grade with the walk and proposed to fill others. In one or more instances where monuments or headstones had fronted toward the mausoleum he moved them to the foot of the graves and faced them toward the outer driveway. When he had carried on the work his lot and its surroundings far enough to make clearly visible its general nature and effect, owners of lots bordering upon the platted seven-foot walk began to complain, and in the end applied to the city council to put a stop to the changes plaintiff was making in the cemetery outside of his own lot, and to require him to restore the premises to their original condition, and especially to remove the curb, by which they asserted he had, to all intents and purposes, appropriated the seven-foot walk and made it a part of his mausoleum property. As a Defendant's answer is, in substance, that plaintiff received permission to improve and maintain the seven-foot walk, not as a part of his own premises, but as a public way and path for the convenience and use of all lotowners, and for convenient public access to the graves in that vicinity, and that he abused the privilege or license so granted by taking possession of the walk and treating it as his own, and by inclosing it within his curb, which obstructed the entrances thereto, and in other ways assuming to himself absolute control of said area and excluding others therefrom. Certain of the lotowners immediately interested also intervened in the action and united with defendants in resisting plaintiff's demand for relief. [1] The issues were tried to the court, which found that the city council was acting within its authority in ordering the removal of the curb. It further found that plaintiff, (172 N.W.) the court may be satisfied that the views and plans of the lotowner are more in accord with good judgment and good taste. in making the changes and improvements, [ognized. And this is no less true even though was not a wrongdoer or trespasser, but that the authority or consent of the city for doing such work was, at most, a revocable license, and that the removal of the curb should be done at the expense of the city. A decree to that effect was entered. Certain other provisions were made for marking the boundaries of the walk and the corners of the burial lots, and the costs of the suit were apportioned between the parties. The plaintiff appeals.. Because of the somewhat novel character of the dispute presented by this record we have made an unusually extended preliminary statement of the facts; but the law applicable thereto is, in our judgment, not open to serious question. Both in pleading and in his testimony on the trial plaintiff disclaims any pretense of title to any of the property except the circular tract thirty-three feet in diameter, and recognizes the public character of the encircling seven-foot walk; but he does claim that by the grant or permission of the city he acquired the right to improve and beautify the walk, and thus, while improving the convenience and appearance of the cemetery, incidentally improve the surroundings of his mausoleum. Having thus conceded, as, indeed, under the conceded facts he must, the public character of the walk, he in legal effect concedes the authority of the city to control the manner and extent of its improvement. [2] Let it be admitted for the purposes of this case that the city council could and did give the plaintiff permission to grade or gravel or pave or otherwise improve the walk, it follows of necessity that the right so acquired was, as held by the trial court, a revocable license only, and that a court of equity cannot properly enjoin its withdrawal. When the cemetery was platted and dedicated to public use, and lots were sold according to their platted description, the purchasers acquired an easement in the driveways and walks for the use and convenience of the several lots. The city itself neither reserved nor had any right to ignore this easement or take away the public character of the drives and walks, unless it be by some action in court or in the council of which the parties in interest have notice and opportunity to be heard if they so desire. There is nothing inherently improper in allowing lotowners to care for adjacent walks, subject, of course, to the reasonable supervision and control of the city; and where such privilege has been accorded, and difference of opinion arises between the lotowner and the city as to the kind of care to be exercised or nature of the improvement to be made, the superior right and authority of the city must, in the very nature of the situation, be rec [3] So, too, if the permission be given, and the city thereafter sets up the claim that the lotowner has exceeded the limits of his permit, or abused the privilege granted, and on that ground recalls it, the authority so to do cannot be doubted. The license being in its nature merely personal, its revocation is not a legal wrong. While it may appear to some that the facts in the case present slight cause for contention and litigation, yet it is not very strange that the owners of lots in the immediate vicinity of plaintiff's mausoleum should resent and object to some features of the improvements made by him. He acquired title to an area of but thirty-three feet in diameter, but by throwing a continuous curbing around the outside of the circular walk, and filling, grading, and grassing the entire inclosure within the curb, he occupies for all practical purposes a circle forty-seven feet in diameter, thus more than doubling the area of his individual occupation. In so doing, as we have already noticed, he has also by his curb closed all the entrances to the eight division passages or walks from the circular walk except the one which he has paved from the driveway to the entrance of the mausoleum, a plan which accentuates to a marked degree the impression which the observer must receive that the entire area of the enlarged circle is his personal domain. There is, as the last-above illustration indicates, no surface appearance of a path or walk inside the curb. It is, to use plaintiff's own expression, one continuous lawn. Those who wish to visit or do work upon or about the graves on lots 1 to 8 can pass into the walk or around the heads of the graves into the adjoining passage only by stepping over the intervening curb. If, under such circumstances, persons maintaining burial places in that immediate vicinity, and not able to indulge in like munificent provision for improvement and ornamentation of the graves of their dead, should object to any encroachment upon their legal rights simply to magnify the effectiveness of plaintiff's elaborate ornamentation of his lot, it cannot be condemned as unnatural or unreasonable. To affirm the decree below is not to adjudge the plaintiff guilty of any conscious or intended wrong. He has expended a large amount of money for the commendable purpose of perpetuating the memory of his dead and beautifying their last resting place, and we are sure that neither the city nor his fellow lotowners have any desire to thwart his reasonable desires to that end. The enlargement of his grounds by the inclusion therein of the circular walk was not a part of his original plans; for the mausoleum had already been built before the correction deed was given him, and before he sought permission to make the improvements. The removal of the curb and the maintenance of the PORTER v. CARNEY. (No. 32115.) (Supreme Court of Iowa. May 21, 1919.) 1. APPEAL AND ERROR 724(2)—ASSIGNMENTS-SUFFICIENCY-DEFINITENESS. walk for the purpose for which it was platted The restrictions upon the general and incan detract very little from the real attrac- definite character of assignments of error are tiveness of his property, while it does elim-made that the court may have its attention diinate the objectionable air of exclusiveness relies; and, if the record as presented accomrected to the very point upon which appellant which is quite inseparable from the arrange- plishes that purpose, its form is not of vital ment as it now exists. [4] Appellant relies in argument upon the thought that, plaintiff having expended time and money in the enterprise, his license became irrevocable. The facts do not, in our judgment, bring the case within the rule so invoked. The decree below interferes very little with the plaintiff's improvements, except as to the curb by which he has incorporated the circular walk within his own premises. There was no express permission given him to build this curb. Nowhere in the preliminary proceedings was a curb mentioned, except in connection with the making of a new deed, the express purpose of which was to convey to plaintiff a circle of thirtythree feet in diameter instead of thirty-two feet, and we think that a fair construction to put upon these references is that plaintiff desired to have his title to the full thirtythree feet confirmed by the second deed in order that he might safely curb his lot to the extent of its true diameter, or, in other words, that he might include within this curb the entire area inside the seven-foot walk. No one else seems to have understood that he asked or was granted leave to put his curb outside of the walk. He concedes that he acquired no title to the walk, and that the use of such walk is still a public right, yet he pleads and testifies that he not only did inclose it within his curb, but he leveled the entire circle including the walk, sowed it in blue grass, “and converted it into a neat and ornamental lawn." This, it appears to us, was clearly in excess of the privilege alleged to have been granted, and the only license as can be claimed therefor is such as can be implied from the fact that some of the city officers saw the work in its course of construction and did not forbid it. [5] A claim of irrevocable right in a street or public place cannot be predicated upon such ground alone. We regard it unnecessary to go into any review of the authorities. None of the precedents cited is inconsistent with our conclusion, and the general propositions to which we have adhered are elementary. The decree of the district court is fully sustained by the record, and it is affirmed. LADD, C. J., and GAYNOR and STEVENS, JJ., concur. moment. On the assumption that an oral agreement fect of a written contract for the sale of land, was sufficient to change or vary the legal efto be provable, it must have been made subsequent to the execution of the instrument. 4. VENDOR AND PURCHASER 82-SUBSEQUENT CONTRACT VARYING WRITTEN AGREEMENT EVIDENCE. failure to perform a written option contract, In an action for damages for defendant's evidence held insufficient to show a subsequent oral agreement modifying the contract terms. 5. BROKERS 49(1)-RIGHT TO COMMISSION -OFFER. Plaintiff was not entitled to recover commission upon his theory that an agreement was for commission upon his sale of an entire tract of land, where plaintiff's evidence showed only an offer for purchase of the remaining tract at $50 an acre, which plaintiff declined, saying it was listed at $55, even though such offer were communicated to the defendant. 6. BROKERS 49(1)-AGREEMENT TO SELL WHOLE TRACT OF LAND-BREACH - EVIDENCE OF SALE. In action for refusal to carry out a contract, where plaintiff was to receive a sum upon $55 per acre, the defendant could not be held a sale of all the land at an aggregate price of to sale of one part of the tract separately, and run the risk that the unsold parts might bring a figure to make up the required average, but plaintiff must have found a purchaser, or purchasers, for all the land at prices to make up the necessary average price. 7. APPEAL AND ERROR 843(3)—MATTERS NECESSARY TO DECISION EVIDENCE OF ORAL CONTRACT, In an action upon a contract involving the sale of land, an issue as to the veracity of plain For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (172 N.W.) tiff and defendant, whose testimony conflicts | unless $10,000.00 shall be paid in on purchase as to an oral agreement wholly independent of price on this land prior to December 19, 1913. the writing, is not an issue for decision. [Signed] G. A. Carney. [Signed] L. O. Porter. The above agreement is hereby extended to Appeal from District Court, Butler Coun- July 1, 1913. ty; C. H. Kelley, Judge. Action at law to recover damages for alleged failure of the defendant to perform a certain written option contract for the sale of land. Verdict and judgment for plaintiff. Defendant appeals. Reversed. J. G. Mitchell, of Greene, Martin & Turnipseed, of Cedar Falls, and Courtright & Arbuckle, of Waterloo, for appellant. Sager & Sweet, of Waverly, for appellee. WEAVER, J. As the parties differ very widely upon the proper construction of the written contract, we quote it in full as follows: Option. This agreement, made this 15th day of November, 1912, between G. A. Carney and L. O. Porter, witnesseth: In consideration of $25.00 the receipt of which is hereby acknowledged the said G. A. Carney hereby agrees to convey by warranty deed the land described below, to said L. O. Porter or to any person, persons or corporation designated by said L. O. Porter until December 1, 1912, for the sum of $55.00 per acre, to be paid according to the following terms: $2,000.00 cash at the time the contract is made, of which $2,000.00 the above $25.00 shall be considered part payment, and all the balance with the exception of $8,000.00 in cash on March 1, 1913, when possession shall be given, and if desired by said L. O. Porter the said G. A. Carney agrees to take back mortgages on the land sold to the extent of $8,000.00 and which shall be apportioned among the various pieces of land sold so as not to exceed 50 per cent. of the purchase price of the particular piece in any one case. Said mortgages to run for a period of five years with interest at the rate of 6 per cent. per annum payable annually with the privilege of paying any multiple of $100.00 on any interest day. All payable at the Merchants' National Bank, Greene, Iowa: The land covered by this option is situated in Pittsford township, Butler county, Iowa, and is more particularly described as follows, to wit: [Here follows description of 590 acres of land.] Said G. A. Carney agrees to furnish the said L. O. Porter, or any one whom he may designate, an abstract of title showing a good title of record, on or before the first day of March, 1914, and to give the said L. O. Porter, or any one whom he may designate, complete and peaceable possession of said premises on or before the 1st day of March, 1914. On December 1st, the said G. A. Carney agrees to extend this option until January 1st on further payment of $25.00. Said L. O. Porter agrees to pay 2 per cent, interest on a mortgage now on said premises, from December 19th, 1913, to March 1st, Dated February 26, 1913. G. A. Carney. L. O. Porter. I hereby accept the erasures and changes of dates as above. In his petition plaintiff alleges that the intention and meaning of the parties in making the contract was to authorize plaintiff to sell any part of the lands therein described at figures above or below $55 per acre, provided that the sum received from the sale of the whole tract averaged $55 per acre or more, and that the contract was so construed by the parties by their mutual oral agreement after its execution. He then alleges "that in reliance upon said written option" plaintiff performed work and labor and incurred expense to find purchasers for said lands, and did find buyers for all of it as follows: On June 1, 1913, to one Meswarb, 350 acres at $65; on May 31, 1913, to Geo. Hartgreaves, 80 acres at $60; on June 15, 1913, to W. Anderson, 80 acres at $50; on July 15, 1913, to P. Lieuwen, 80 acres at $50. He further says that defendant conveyed the 350 acres to Meswarb, taking in part payment or exchange other land and the remainder in money, of which he admits he himself received $520, but charges that defendant wrongfully refused to make conveyances to the other persons named, and he asks to recover an alleged remainder due to him under said agreement in the sum of $1,030. A demurrer to the petition having been overruled, the defendant denied the petition, and upon trial to a jury the plaintiff recovered verdict for his entire demand. [1] I. Appellee objects to the sufficiency of appellant's assignments of error because of their general and indefinite character. It is possibly true that some of the assignments are open to the criticism made upon them but we think there are enough of sufficiently specific character to permit a review of the decisive features in the merits of the case. While the rule requiring that an alleged error shall be specifically stated or pointed out is one the propriety of which cannot be doubted, it is nevertheless a rule in the application of which courts and counsel may easily drift into technical extremes. The only purpose of the requirement is that the court may have its attention directed to the very point on which the appellant relies, and, if the record as presented here be such as to accomplish that purpose, its form is not a matter of vital moment. If, for example, as in the case before us, an employment to find or produce purchasers, or of an undertaking by the defendant to pay commissions on sales made by the plaintiff. The sole agreement and promise of the defendant is that, in consideration of $25 paid him by Porter, he will, at any time between that date and December 1st, a period of about 15 days, convey the entire 590 acres to Porter, or to any person or persons des counsel requests the court below for an in- [in vain for any word or expression which struction which embodies his theory upon a indicates the creation of an agency, or of pertinent proposition of law and the request is denied and exception preserved, we can see no good reason why counsel in assigning error thereon in this court should be required to do more than point out the ruling of which he complains. The requested instruction contains and makes clear the proposition of law on which he relies, and to repeat it in the assignment of error is of no benefit. A glance at the instruction is all-ignated by him, for $55 per acre to be paid in sufficient to inform the court of the nature of a certain described manner, and upon further the question presented, and, this being done, payment of $25 "to extend the option to the only legitimate end of the rule is at- March 1st, an additional period of about 90 tained. Again, if the defeated party moves days. On the other hand, Porter bound himfor a new trial on the ground that the ver- self to nothing. He did not promise or agree dict is without support in the evidence and to buy. He acquired nothing except the right his motion is denied and on appeal he as- to buy within the time stipulated if he signs error thereon in general terms, what should so elect and perform the conditions. more can he do? He cannot be expected to He could proceed to act upon the privilege set out in his assignment all the evidence for which he paid his $25, or he could negoffered on the trial. Other illustrations will lect it. The opportunity was for him to imreadily occur to the practicing lawyer. It prove or decline. He could abandon the venis, of course, not sufficient to merely say, ture and incur no liability to the owner "The court erred in its rulings on evidence," either in law or in equity. In short, he or "The court erred in its instructions to the bought a privilege to make the purchase at jury," or make other indefinite objections his election during the life of the agreewhich put upon the court the necessity of ment. Moreover, it was a right or privilege wading through the record in search of error. to purchase all the land, and not part of it, See Acts 30th G. A. c. 126; Dale v. Coal Co., a privilege to purchase, and not the mere 131 Iowa, 67, 107 N. W. 1096. Under our privilege to introduce purchasers. These present rules, interpreted in the light of the terms exhibit all the essentials of an option. statute, we think the assignments are suffiThe defendant was bound to sell upon comcient to permit our consideration of the more pliance with the conditions. The plaintiff vital questions which counsel have argued. was under no obligation to buy. Pratt v. [2-4] II. The plaintiff in argument to this court takes the position that the written con- Prouty, 104 Iowa, 420, 73 N. W. 1035, 65 tract is not an option to purchase, but an Am. St. Rep. 472; Myers v. Stone, 128 Iowa, agreement of agency. In the language of 10, 102 N. W. 507, 111 Am. St. Rep. 180, 5 his counsel: "It is the contention of the appellee in this case that the contract in question is nothing more nor less than an agency contract under the terms of which plaintiff was to receive as his commission all of the selling price over and above the sum of $55 an acre." Ann. Cas. 912. then there is no reasonable explanation of But, say counsel, if it be an option merely, the provision for payment of "$2,000 at the time contract is made," and that this should be held to mean an agreement by defendant to make a contract with such persons as Carney might produce. But this construction is wholly unnecessary and unwarranted. The contract in suit was not a contract for sale, for it did not bind the plaintiff to buy. If he exercised his option, it could only be by his appearing within the time and becoming a party to a contract of purchase such as his option called for. When he should thus elect to enter into such contract of purchase the payment of $2,000 became obligatory upon him, and not until then. If that meaning is to be given the agreement, it must be found in the written language; for neither party, plaintiff nor defendant, or other witness, testifies to any such agreement, either before or after the writing was made. Conceding, as counsel argue, that the use of the word "option" does not alone or of itself control the legal effect of the writing if, when taken as a whole, it is clear something else was intended, nevertheless, it being a word in common and Further insistence is made that the progeneral use, and being several times re- vision for securing a part of the purchase peated in mentioning the character of the price by mortgages proportioned to the land instrument, it will be presumed the parties in such manner that the incumbrance on no employed the word in its usual and proper tract should exceed 50 per cent. of the purmeaning, unless the contrary construction is chase price of such tract is reconcilable only made necessary to avoid nullifying or de- with the theory of an agency with right feating the intent otherwise expressed in the to sell the land for defendant in parcels. writing. But the document will be searched | But this is clearly not the case. It is prob |