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https://www.courtlistener.com/api/rest/v3/opinions/3431247/	Michael Doherty departed this life in August, 1934, leaving a will which was admitted to probate in Clinton County, Iowa. The will directed the payment of debts, funeral expenses, and expenses of administration, and provided for the payment of the following specific legacies: To the Catholic Parochial School at Grand Mound, Iowa, $1,600; to Father Small for the purpose of saying mass $400; to Father Lynch for the purpose of saying mass $400; to a nurse who had cared for the deceased during his sickness $400; to two nephews and a niece $1.00 each. The will also appointed John Gibson as executor and directed that he act without bond. In addition to the foregoing the will contained the following paragraphs: "Par. 2. As soon as it may be expedient to do so, I will and direct that my executor shall sell and dispose of all my property, whether real or personal, and convert the same into cash and that he pay out of the proceeds thereof the following legacies as may be mentioned hereinafter; I further authorize, empower and direct that he shall have full power to make the necessary transfers in the sale of said property." "Par. 10. The residue and balance of all my property, Page 1354 after all payments and legacies mentioned hereinabove are paid, I give, devise and bequeath to the Catholic Church of Grand Mound, Iowa." It seems to be conceded, for the purpose of this appeal, that the "Catholic Church" of Grand Mound, Iowa, named as residuary legatee is the St. Phillips St. James Catholic church, appellee herein. Elizabeth May Boysen, appellant, died during the pendency of this proceeding and the administrator of her estate was substituted as appellant, but in the course of this opinion we will refer to the substituted appellant as the appellant. The decedent, Doherty, at the time of his death owned a forty-acre tract of land and personal property appraised by the inheritance tax appraisers at $6,974.18, and it is conceded by the appellant that the personal property was sufficient in value to pay the debts of the estate and the specific legacies mentioned in the will. In October, 1934, after the will was admitted to probate and the executor named therein appointed and qualified, he entered into a contract for the sale to appellant of the forty-acre tract of land and some minor items of personal property for $1,600. The contract contained the following clause: "This contract shall be subject to the approval of the district court in and for Clinton County, Iowa." Some time later the executor filed an application in probate reciting that pursuant to the power of sale contained in the will he had entered into the above mentioned contract of sale and asked that the same be approved and the executor directed to convey the property. The court in an ex parte hearing specifically approved the sale as being within the power under the will and directed the conveyance of the property by the executor. In March, 1935, a conveyance was executed, but because of some minor defects in the title the deed and the unpaid portion of the purchase money, $1,500, were deposited in escrow, where they remained until July, 1935, when delivery was made by the escrowee. After the sale was consummated by the delivery of the purchase price and deed an application was filed by the appellee, as residuary legatee under the will, asking that the order of approval of the sale of the forty-acre tract and personal property be set aside and reciting that the personal estate left by the decedent was sufficient to pay the Page 1355 debts and expenses of the estate and the specific legacies mentioned in the will, and that appellee as sole residuary legatee elected to take the real estate in kind rather than in cash. The application further asked that the appellant, the purchaser of the forty-acre tract, be made a party to the proceedings on the ground that she is a real party in interest. The court entered an ex parte order joining the appellant as a party to the proceedings, directed that five days notice be served upon her and required her to appear and answer within five days. The appellant appeared and moved that her name be stricken as a party to the proceedings for the following reasons: "1. The question presented by said application is moot as to this moving party for the reason that her rights in the real property referred to in the petition cannot be affected by any order made by the court upon such application, because: "(a) The present proceedings are pending in the probate court. The probate court has no power to set aside or impair the right, title, or interest of this moving party in or to the land in question, the court of equity being the only court of competent jurisdiction to set aside or impair the right, title, or interest had by the moving party in said land. "2. The moving party is neither an heir at law, legatee, devisee, or creditor of the estate of decedent, and is not interested in any manner in the accounting between the executor and parties interested in the estate of the decedent, and consequently is not a proper party to the proceedings in so far as any order made by the court might have a bearing upon the duty of the executor to account for the estate or condition of the accounting of said executor. "3. In so far as it may be sought by said application to affect in any manner or to impair or set aside any right, title, or interest had by this moving party in the real property referred to in the application, this court can make no order binding upon this moving party for the reason that subsequent to the date of the order of sale the executor executed and delivered to this moving party a deed conveying said real property to her, and that the moving party has paid to the executor the full amount of the purchase price of such property, as a consequence of which the moving party is not a proper party to the proceedings upon said application. Page 1356 "4. The moving party was improperly made a party to said proceedings and is an improper party thereto by reason of the fact that the probate court cannot draw to itself the power to adjudicate the validity of the title had by the moving party in the real property referred to in the petition, because exclusive jurisdiction to adjudicate that question is vested in the court of equity, and the probate court has no power, through the process of making the moving party a party to the proceedings upon the application to set aside the order, to make orders binding upon the moving party or to adjudicate in a manner binding upon the moving party, any matter inhering in the moving party's right or title to said land." On the hearing of the foregoing motion the court entered an order overruling and denying the same and held that the appellant was a proper party to the proceedings. Due exceptions were taken to this order of the court and from such order this appeal is prosecuted. The appellant contends that the ruling of the trial court refusing to strike appellant's name from the proceedings was erroneous for the reason that she was neither a necessary nor a proper party to a determination of any matters in dispute between the appellee and the executor of the estate; and for the further reason that the matters in controversy, if any, between appellant and appellee, which necessarily only involve the title to the land in question, cannot be adjudicated in probate; and for the further reason that the probate court could not determine or adjudicate in piecemeal a part of an equitable action which was necessary to determine the question of title; and for the further reason that any ruling made by the court on appellee's motion to set aside the order approving the sale and conveyance would be merely interlocutory and subject to review in an action in equity involving the title to the land. [1] Under code sections 10981, 10969, and 10972, other parties may be brought into an action but only when a final determination of a controversy cannot be made without such parties, but we do not think that the proceedings under consideration here is such a controversy as is contemplated by the statutes referred to. The conveyance here in question cannot be set aside by the probate court. A court of equity has sole jurisdiction in such a matter. This is conceded by the appellee, Page 1357 but the appellee contends that it fears the existence of the order of approval of the sale and conveyance will hinder it, in some manner, in the prosecution of an action in equity to set aside the sale and transfer of the real estate. We feel that this expressed fear is groundless for the reason that the order of approval, which appellee seeks to set aside, is but an interlocutory order the propriety of which can be determined either in an action against the executor for damages or for an accounting or in objections to a final report of the executor. The appellant is not interested and is not a necessary or proper party to any action or controversy existing in favor of the appellee and against the executor. Such was the holding in In re McAllister's Estate, 191 Iowa 906, 183 N.W. 596, in which case this court speaking through Justice Stevens held that a similar order was purely interlocutory and subject to review either in an action in equity to construe the will or to set aside a conveyance or an action concerning an accounting of the executor. We conclude therefore that there was no need for an attack on the order of approval of the sale and conveyance in the instant case and no ground for the expressed fear by appellee of the effect of such order. If the ruling of the trial court making the appellant a party in the probate proceedings was sustained it would result, to some extent at least, in the splitting of appellee's claim or cause of action and its trial by piecemeal. It might also result in depriving the appellant of her right to defend her title based upon the executor's deed. While under our system of practice she is entitled to have such controversy tried in equity in its entirety with the consequent right of appeal and trial in the appellate court de novo. While the ultimate question in the case to be determined is the validity of appellant's title and the power of the executor under the will to sell and convey, such question cannot be determined on this appeal and necessarily could not be determined in the proceedings from which this appeal is prosecuted. The appellee relies upon the holding in In re Wicks' Estate,207 Iowa 264, 222 N.W. 843, as sustaining its contention that the probate court has the jurisdiction and power to set aside its order approving the sale and transfer, but the cited case does not furnish support for the appellee's contention. In the cited case in the contract of sale was included a clause that the contract was made subject to the approval of the court, while Page 1358 this court held that such clause became a part of the contract, notwithstanding the power of sale contained in the will, and that the court had a right under the facts in that case to set aside an order directing the sale but before its approval, when it appeared that more advantageous terms for the sale could be procured. The sale had not been approved by the court and approval was refused. The purchaser sought to compel a consummation of the contract of sale and a conveyance, and this court held that he was not entitled to such relief because of the inserted clause in the contract that the sale must be approved by the court. In the instant case the sale was approved by the court and the conveyance executed and the purchase price paid before any attempt to set aside the contract of sale or the order of approval thereof. The present case does not involve a controversy between the purchaser, appellant, and the executor of the estate. It only involves a controversy, at this time at least, between the appellee and the executor. Appellee contends that under the holding in In re Bagger's Estate, 78 Iowa 171, 42 N.W. 639, that it is improper and unjust to make an order affecting the title of persons not in court. This, of course, is absolutely true. Such an order would not only be improper and unjust but it would not be possible. Appellee contends that the order of approval of the sale and conveyance is an effective bar to the prosecution of a suit in equity to set aside the deed. This is not true. It is conceded by the appellant here that the order of approval creates no burden to appellee in an action in equity to set aside the deed in question. And appellant further concedes that the appellee is not bound or concluded by the order of approval and that such order can be assailed in any court or in any action. [2] Under the circumstances in this case there can be no dispute between the appellee and the executor in which appellant has any interest. The appellee is not concluded by the order of approval, and it follows that there is no need, indeed there is no justification, for making the appellant a party to the proceeding to set aside the approval order as against the executor. Quoting the language of appellant which we approve and adopt, "It is elementary that if appellant had wronged appellee she is answerable for her wrong in a proper action in the proper forum. It is equally elementary that if the executor has wronged appellee appellant is not answerable, because it is not her wrong. It Page 1359 is equally elementary that the injured party must seek redress in the proper forum, by proper action against proper parties." It must be concluded that independent of the contract of sale and independent of the approval thereof by the court the executor either had or did not have power to sell. Such power, if any, arises in the will and must be determined by its terms. Feaster v. Fagan, 135 Iowa 633, 113 N.W. 479. We are constrained to hold that the effort to make appellant a party to the proceedings in probate is not warranted under our practice and under the sections of the statute heretofore mentioned, and that the validity of appellant's deed as between appellant and appellee must necessarily be determined in a court of equity. It follows, and it is our conclusion, that the trial court erred in attempting to make appellant a party to the proceedings in probate and erred in overruling appellant's motion to strike her name as a party from the proceedings pending in the probate court. The case is reversed and remanded with instructions to enter an order sustaining appellant's motion dismissing her as a party to the probate proceedings. — Reversed and remanded. MITCHELL, PARSONS, HAMILTON, and SAGER, JJ., concur. RICHARDS, C.J., dissents.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/4031290/	NUMBER 13-15-00611-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG THE STATE OF TEXAS, Appellant, v. KENNETH LEE COOLEY JR., Appellee. On appeal from the 377th District Court of Victoria County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Longoria Memorandum Opinion by Justice Longoria The State of Texas (“the State”) appeals the trial court’s order granting Kenneth Lee Cooley Jr.’s (“Cooley”) motion to dismiss for violation of his right to a speedy trial. See U.S. CONST. amend. VI. On appeal, the State argues that the trial court erred in granting Cooley’s motion to dismiss because Cooley’s right to a speedy trial was not violated. For the reasons stated below, we find that the trial court erred in finding a violation of Cooley’s right to a speedy trial. We reverse and remand. I. BACKGROUND Cooley was first indicted on December 18, 2014 in cause number 14-12-28405-A for the offense of manufacture/delivery of a controlled substance (methylenedioxy methamphetamine, commonly known as “ecstasy”) in a drug-free zone. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112, 481.134(b) (West, Westlaw through 2015 R.S.). On January 9, 2015, Cooley asked the court for a continuance so that he could retain an attorney. On January 20, 2015, Cooley’s case was reset to February 17, 2015 to give him additional time to find an attorney. On February 17, 2015, Cooley again requested more time to hire an attorney. The case was then reset to April 14, 2015. On April 14, 2015, Cooley requested more time to hire an attorney. At the April 14th hearing, the court asked Cooley directly if he still intended to hire an attorney. The record reflects that Cooley responded, “Yeah I guess so.” The case was reset to July 8, 2015. On July 8, 2015, a court-appointed attorney represented Cooley. At this hearing, Cooley complained that his court-appointed attorney had only seven months of experience. In addition, the State filed a motion to dismiss so that the case could be refiled because the indictment contained an error: the indictment erroneously alleged that Cooley was in possession of methylenedioxy methamphetamine instead of alleging that he was in possession of methamphetamine. Cooley did not raise any objections over the case being reset, and the trial court dismissed the case. Fifteen days later, on July 23, 2015, the State re-filed the charge against Cooley under cause number 15-07-28842-A. In the new indictment, Cooley was charged with actual delivery of methamphetamine. On August 17, 2015, both the State and Cooley’s 2 court-appointed attorney agreed to reset the case to September 15, 2015. Cooley complained again, this time stating that his attorney possessed insufficient experience with criminal law to adequately represent him. On October 28, the State filed a motion to amend the indictment. The State moved to amend the indictment because of another error: in writing the second indictment against Cooley, the language was accidentally changed to erroneously allege that he was charged with actual delivery instead of manufacture/delivery. Cooley’s court-appointed counsel objected to the motion. The State then filed a motion to dismiss, which was granted. The court told Cooley that no new bond would be required and that the court would entertain a waiver of arraignment. On October 29, 2015, Cooley was charged by indictment in the current case under cause number 15-10-28984-D. The final indictment alleged that Cooley possessed with intent to deliver methamphetamine in a drug-free zone and that he had a previous conviction for a controlled-substance offense in a drug-free zone. On December 15, 2015, Cooley’s case was called for a motion’s docket. At this hearing, Cooley orally moved to have the charges against him dismissed because of a speedy trial violation. This was the first time Cooley had raised speedy trial concerns. The court did not ask for any showing of prejudice during the hearing, but noted that: (1) the case had been reindicted several times; (2) Cooley had come to court several times; (3) Cooley had been to court on jury trial announcement dates; (4) “the first indictment has completely different elements than the second”; and (5) Cooley “was frustrated with his attorney and having to present himself to court.” The trial court then granted Cooley’s motion to dismiss based on a violation of his right to a speedy trial. This appeal followed. II. STANDARD OF REVIEW AND APPLICABLE LAW 3 The United States Supreme Court has laid out four factors that a court should consider in addressing a speedy-trial claim: (1) the length of the delay, (2) the State’s reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant because of the length of the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972). Texas courts apply the same four-factor balancing test to evaluate alleged violations of the state constitutional right to speedy trial. Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). No single factor of the balancing test in Barker is dispositive. Barker, 407 U.S. at 533. Texas courts review motions to dismiss using a bifurcated standard of review: an abuse of discretion standard for the factual components and a de novo standard for the legal components. Zamorano, 84 S.W.3d at 648. In the present case, there are no factual disputes; thus, the trial court’s legal conclusions must be reviewed de novo. See id. III. DISCUSSION On appeal, the State argues that Cooley failed to establish a prima facie showing of prejudice and the trial court erred in finding a violation of Cooley’s right to a speedy trial. We address each of the four Barker factors in our analysis. A. The Length of the Delay The first Barker factor considers whether the length of the delay before trial was uncommonly long. Barker, 407 U.S. at 530. The length of the delay between an initial charge and trial, or the defendant’s demand for a speedy trial, acts as a triggering mechanism to begin the Barker analysis. Zamorano, 84 S.W.3d at 648. A delay of eight months or longer is generally considered presumptively unreasonable and triggers a speedy trial analysis. Id. at 649 n. 26. 4 Here, Cooley’s first indictment relating to this case was issued on December 18, 2014.1 He first asserted his right to a speedy trial had been violated at a hearing approximately one year later on December 15, 2015. The State agrees that this is presumptively unreasonable; thus, the first Barker factor favors Cooley. B. The State’s Reason for the Delay In reviewing the second Barker factor, courts consider “whether the government or the defendant is more to blame for that delay.” Barker, 407 U.S. at 530. Courts are to weigh the comparative fault of the parties by analyzing the reasons for the delay. See id. A deliberate or bad faith prosecutorial delay will weigh heavily against the State, neutral reasons such as simple negligence will weigh very slightly against the State, and a valid justification for delay will not weigh against the State at all. See id. at 531. Cooley does not assert that the portion of the delay caused by the State was due to a bad faith attempt to delay the trial. The first indictment alleged possession of the wrong controlled substance, and the State quickly re-indicted Cooley fifteen days after the dismissal of the first case. Likewise, the second indictment wrongly alleged actual delivery instead of possession with intent to deliver. Once the second case was dismissed, the State re-indicted Cooley the next day with the final indictment. Regardless, Cooley asserts that the State still bears the majority of the responsibility for the delay through its negligence in drafting the indictments. However, the State was not the only source of delay. The case was delayed and reset a total of four times at Cooley’s request so that he could find an attorney. These 1 We note a small error in the trial court’s Order Dismissing Cause for Violation of Speedy Trial. The Order stated that Cooley’s first indictment was issued on December 14, 2014, but the record reflects that his first indictment was actually issued on December 18, 2014. 5 four resets delayed the case from January 9, 2015 to July 8, 2015. Thus, nearly six months of the total twelve-month delay was caused by Cooley’s own delay in securing an attorney. Cooley states that he should not be punished for attempting to hire his own attorney. He is not being punished for seeking an attorney, but we also cannot hold the State accountable for delays Cooley caused. See id.; see also Wade v. State, 83 S.W.3d 835, 839 (Tex. App.—Texarkana 2002, no pet.) (observing that there was no speedy trial violation when the defendant was directly responsible for a large portion of the delay). While it is true that the State was responsible for a portion of the twelve-month delay, Cooley himself was responsible for a larger portion of the delay, and another month of delay was due to the unexplained mutual agreement of both parties. Therefore, we conclude that overall, the second Barker factor favors the State. C. The Defendant’s Assertion of His Right to a Speedy Trial The third Barker factor is whether the defendant timely asserted his right to a speedy trial. See Barker, 407 U.S. at 530. The failure to request a speedy trial before seeking dismissal “supports an inference that the defendant does not really want a trial, he wants only a dismissal.” See Ortega v. State, 472 S.W.3d 779, 786 (Tex. App.— Houston [14th Dist.] 2015, no pet.). If a defendant fails to first seek a speedy trial before seeking dismissal of the charges, “he should provide cogent reasons for this failure.” Id. Twelve months after being initially charged, Cooley asserted his right to speedy trial for this first time. Cooley moved to dismiss the charges without first requesting a speedy trial and he offered no “cogent” reasons as to why he deserved a dismissal rather than a trial date. Id. We find that the third Barker factor strongly favors the State because the record supports the inference that Cooley was more interested in dismissing the case than actually receiving a speedy trial. See id. 6 D. Prejudice to the Defendant Because of the Length of the Delay The fourth Barker factor considers prejudice suffered by the accused due to the length of delay. We assess this prejudice “in light of the interests” which “the speedy trial right [is] designed to protect.” State v. Munoz, 991 S.W.2d 818, 826 (Tex. Crim. App. 1999). These interests are: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) limiting the possibility that the accused’s defense will be impaired. Id. Of these sub-factors, the third is the most important. Id. If the defendant makes a prima facie showing of prejudice, then the burden shifts to the State to show that the defendant suffered no serious prejudice. Id. Cooley claims that the State failed to show that he suffered no serious prejudice beyond that which ensues from the ordinary and inevitable delay of the judicial system. See id. However, the defendant must first make a prima facie showing of prejudice in order for the State to have the obligation to prove that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay. See id. Throughout numerous hearings spanning a year, Cooley never argued that he was suffering prejudice because of the delay. He presented no evidence that he was subject to oppressive pre-trial incarceration or excessive anxiety and concern. He also made no argument and raised no evidence that his defense in the case was somehow impaired by the delay. Furthermore, all of the reasons the trial court listed for granting Cooley’s motion to dismiss are either unsupported by the record or irrelevant to a speedy trial analysis. The fact that the case had been re-indicted several times, standing alone, does not offer any insight into whether Cooley’s right to a speedy trial was violated. See Barker, 407 U.S. at 531–33. Likewise, the fact that Cooley came to court several times and was present 7 on the jury trial announcement dates is inapposite in a speedy trial analysis. See id. Also, it does not matter that the second indictment erroneously accused Cooley of actually delivering a controlled substance whereas the first and final indictments alleged that Cooley possessed/manufactured with intent to deliver. Actual delivery or possession with intent to deliver are two methods of committing the same statutory offense. See TEX. HEALTH & SAFETY CODE ANN. § 481.112. Thus, the error in the indictment would not have affected Cooley’s ability to adequately prepare a defense. Finally, it is not pertinent that Cooley was frustrated with his attorney. We have found no case law suggesting that this should weigh against the State in a speedy trial analysis. We conclude that Cooley failed to present a prima facie case of prejudice as a result of the delay. See Munoz, 991 S.W. 2d at 826. Therefore, the fourth Barker factor strongly favors the State. E. Balancing the Four Factors Having balanced the Barker factors, we conclude that the record does not support the trial court’s ruling. Although the twelve-month delay was sufficient to trigger a speedy- trial analysis, Cooley failed to make a prima facie showing of prejudice and at least half of the delay was directly attributable to Cooley himself. Furthermore, the delay attributable to the State was merely the result of negligence rather than a bad faith attempt to delay the trial. See Barker, 407 U.S. at 531. Accordingly, we hold that Cooley was not denied his right to a speedy trial. It was an error to dismiss the case. We sustain the State’s sole issue. IV. CONCLUSION We reverse the trial court’s order dismissing the case and remand to the trial court for further proceedings consistent with this opinion. 8 NORA L. LONGORIA, Justice Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed the 1st day of September, 2016. 9	01-03-2023	09-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431252/	The property in question extends from Seventh to Eighth Streets in the City of Des Moines, a distance of 280.5 feet, and from High Street north approximately 234 feet including a part of the vacated portion of Pleasant Street. The building fronts on High Street and the main part is Page 277 93 feet deep north and south and 239 feet long east and west. It has six full floors above basement and ground floor and a smaller dimension seventh floor. An L on the north is 128 feet long east and west and 90 feet north and south. It is only the height of the second story of the main part and contains a gymnasium, locker rooms and gallery on the basement and ground floor levels and an auditorium on the first and second floor levels. The 1941 assessment appealed from fixed the actual land value at $124,480 and building value at $2,271,240, total actual value $2,395,720. The sixty per cent taxable value was thereby established as $1,437,430. The board of review and district court confirmed the assessment as made. On this appeal no serious complaint is made of the land valuation. The controversy seems to concern only the building. The building value of $2,271,240 was arrived at by deducting ten per cent from the appraisal of $2,523,600 made by an appraisement company which was employed to value the central business district of the city in connection with the 1941 assessment. This ten per cent deduction was not made with reference to this particular property alone but was the result of a general horizontal ten per cent cut of most of the appraisal figures set by the company throughout the city. The appraisal company's valuation of $2,523,600 on the building was arrived at by using an estimated replacement value of $2,804,000 and deducting ten per cent initial depreciation therefrom. However, the company appraiser, after testifying clearly as above stated, added a qualifying and apparently contradictory statement: " * * if I had been appraising the building according to its reproductive cost — replacement cost, less depreciation, I should have had a total replacement value of approximately $3,000,000, and one per cent depreciation — therefore, a sound value of $2,970,000. As I pointed out, there are other factors that I adopted. I considered the value of the property for the purpose for which it is being utilized. I considered what it might conceivably be used for." He said on cross-examination: Page 278 "I did not ask anybody what they thought the building might bring if placed on the open market. However, I asked myself that question, knowing that there was a possibility of appeal being taken from my valuation and I came to the conclusion that assuming a willing seller who did not have to sell, and a willing buyer who did not have to buy, that the property would bring not less than the total value that I placed on it." The building was completed in 1940 and this first assessment of it was as of January 1, 1941. In its 1940 report to the insurance commissioner, sworn to in February 1941, plaintiff gave the book and market value of the property as of December 31, 1940, $2,857,156.75 and its cost, $3,129,610.60. This included ground and building. A plat offered by plaintiff shows the business district west of the river as roughly seven blocks north and south by nine blocks east and west. Plaintiff's building is shown to be approximately three blocks from both the office building center and the retail center and at the north edge of the district. Witnesses on both sides agree in praise of the building as representing the ultimate in both beauty and utility of design and construction. Plaintiff, without admitting extravagance, argues that much of the actual cost of the building, because of its location, unnecessary perfection, and monumental character, is not and cannot be reflected in its actual value for assessment purposes. Illustrative of this point one witness for plaintiff estimated the cost of a downtown building of comparable net office area and of "typical, standard column beam construction" at somewhat less than one half the cost of plaintiff's building. This of course involved entire omission of the gymnasium and auditorium features and the use of less expensive but standard material in many parts of the structure. Along the same line this witness estimated what would have been the cost of construction of plaintiff's building (without the auditorium wing) built in the same manner as was the United Life Building in Omaha, Nebraska. He arrived at a figure about 58.5 per cent of its cost as actually constructed. Page 279 It would be interesting to describe in detail the features which plaintiff contends added to the cost, but not to the actual and taxable value, of the building. The foregoing is sufficient however to present appellant's contention. Eleven propositions for reversal are relied on. For our purpose they may be summarized and compressed to the following: (1) The assessment is not entitled to the benefit of the usual presumption in favor of the judgment of the assessor (2) the assessment should have been based on market value, and replacement cost, less physical depreciation, is not the measure of market value (3) allowance should have been made for "functional depreciation" on account of location and special purpose and monumental character of the building (4) valuations reported to the insurance commissioner were not conclusive (5) investment of plaintiff's funds in the building may have been a sound one for it, though not for investors generally, and therefore did not establish market value, and (6) occupancy of building by plaintiff itself instead of by tenant was not a factor affecting market value. [1] I. Plaintiff's first proposition relied on must be sustained on the authority of Iowa Building Corp. v. Zirbel,237 Iowa 242, 21 N.W.2d 576, which also involved a 1941 Des Moines assessment. The value here was of course fixed in the same manner as was the value involved in that case. The ten per cent over-all reduction of the appraisement presumably was an exercise of the judgment of the assessor as to the general level of values of all properties but it did not result in any equalization of values. The custom of accepting the judgment of a hired appraisal firm as fixing the proper relationship of values of the individual properties with each other cannot be approved for the purpose of according it the benefit of the "strong" presumption usually to be accorded the judgment of the assessor. [2] Nevertheless it is true here as it was in the Zirbel case that under the statute the burden is upon the appealing taxpayer to establish that the assessment is in fact excessive or inequitable, however it was computed. We must weigh the evidence to determine whether that burden has been sustained. Page 280 [3] II. Appellant argues that where property has a market value, actual value and market value are one and the same. This does not seem to be an entirely sound proposition in view of the language of the statute: "In arriving at said actual value the assessor shall take into consideration its productive and earning capacity, if any, past, present, and prospective, its market value, if any, and all other matters that affect the actual value of the property." Section441.4, Iowa Code, 1946. This language indicates that "market value, if any," is only an element to be considered in fixing "actual" value. However, in Hawkeye Portland Cement Co. v. Board of Review,205 Iowa 161, 166, 217 N.W. 837, 840, in speaking of this statutory language, it is said: "It thus becomes apparent that the legislature had in mind that there might be property subject to taxation which would have no market value. Under the present statute, the assessor is to take into consideration the market value, if any, of the property. True, he is to take into consideration the productive and earning capacity, if any, past, present, and prospective; but these are all elements which go to make up market value. If the property has a market value, then, as it occurs to us, there can ordinarily be no distinction between market value and actual value." Preceding this language the opinion points out that formerly the statute provided: "Actual value of property * * shall mean its value in the market in the ordinary course of trade"; and that this provision had been amended to read as quoted above. The opinion later says: "Thus it is quite clear that, if property has a market value, said market value and the actual value are usually the exact equivalent of each other." The Hawkeye Portland Cement Company case is cited and quoted in Call v. Board of Review, 227 Iowa 1116, 1121, 290 N.W. 109, 111, and Lincoln Joint Stock Land Bk. v. Board of Review, 227 Iowa 1136, 1138, 290 N.W. 94, 95. From this language it is argued that if the Bankers Life Building had any "market value" such value must have been Page 281 the "actual value" and following this premise appellant proceeds to demonstrate that it did have market value because various witnesses testified it had. One said: "I think every property has a market value." Another said: "I regard this property as having a market value." And still another: "There is a market value for the Bankers Life Building." These were plaintiff's witnesses. Even witnesses for defendant expressed similar opinions: "It is my opinion that the Bankers Life Building does have marketability and market value"; "I don't think there is any question but what a buyer could be found for that building at a very substantial figure"; "I think any building has a market value"; "In my opinion market value in this case would be the same as actual value." It is apparent the term "market value" does not mean the same thing to all men or under all circumstances or for all purposes. Names are not conclusive. Even Russia claims to be a "democracy"! It has been many times judicially announced that market value is what a willing buyer would pay and a willing seller would accept. The definition presupposes that such a meeting of minds is possible. The witnesses who expressed the opinion that every property has market value must have assumed this possibility always exists. But the statute says: "market value, if any, and all other matters that affect the actual value of the property." And even in the Hawkeye Portland Cement Company case, supra, it is cautiously concluded that "if property has a market value, said market value and the actual value are usually the exact equivalent of each other." (Italics supplied.) This is not the same as saying they are "one and the same" or that market value is the sole test. Clearly, the "market value" mentioned in the statute and cited decisions is not of the character referred to by some of the witnesses above quoted. There is doubtless property which could not be sold by the ordinary processes of bargain and sale. Even a "willing" seller might not agree to accept the Page 282 utmost a "willing" buyer would pay, or a willing buyer might not pay the least amount a willing seller would take. On the other hand, some property is of a kind that is habitually bought and sold to such an extent that qualified witnesses can express intelligent opinions on market value, based, not entirely on conjecture, but on experience or observation of actual sales of comparable properties. But we think this discussion more or less academic. Market value, in absence of an adjudication, is itself a mere matter of opinion. The assessor cannot know it any more than he can know the actual value. Both are matters of proof. Doubtless the same evidence would be material on either issue. The language of the statute must be interpreted to require the assessor to take into consideration "evidence of market value, if any." It is actual, not market value, that is to be ascertained. That is the object of the inquiry. Whether actual corresponds with market value is quite immaterial. It may not always do so. To first establish or assume a supposed or theoretical market value to be then "taken into consideration" in arriving at actual value cannot be intended. We think the statute in effect requires the assessor to take into consideration available evidence bearing on "productive and earning capacity, if any, past, present, and prospective," and on "market value, if any, and all other matters that affect the actual value of the property." Certainly the matters that reduce market value or make it nonexistent must be considered but they do not of necessity reduce or affect actual value to the extent or in the same manner that they affect market value. Nor is the assessor required to determine market value as such. What we have said in this division is in substantial accord with our opinion in In re Appeal of Massachusetts Mut. L. Ins. Co., 233 Iowa 916, 928, 11 N.W.2d 17, and not out of harmony with the earlier opinions already cited. Appellant cites various decisions from other jurisdictions. In some respects State ex rel. Northwestern Mut. L. Ins. Co. v. Weiher, 177 Wis. 445, 447, 188 N.W. 598, is most nearly in point. It involved the home office building of the relator company. The same arguments were urged in that case as are urged here on account of claimed excessive cost of construction Page 283 which did not add to market or taxable value. The Wisconsin statute however expressly provided that real property shall be assessed "at the full value which could ordinarily be obtained therefor at private sale." Section 70.32, Stat. 1921. It further expressly required the assessor to consider "disadvantage of location." The Wisconsin court properly held the statute required assessment at market value. We do not think our statute so requires, though as we have already said, evidence affecting market value is to be considered in fixing actual value. Other decisions cited are manifestly based on statutes different from our own and are not persuasive here. [4] III. Other matters argued relate to various considerations affecting value. It is urged that allowance should have been made for "functional depreciation" on account of location, special purpose character, and monumental or luxury character of the building. Clearly these are all matters that must be considered, not merely because they affect or influence market value but because they are material in determining actual value for assessment purposes. They may not have the same effect on both in all cases. Appellant assumes the amount of the assessment here does not take into account the element of "functional depreciation" and "economic obsolescence." A careful reading of the testimony leads us to question this broad assumption. We would instead say defendants' witnesses did not think these elements as potent in reducing actual value as appellant's witnesses assumed. Some denied the existence of any such depreciation or obsolescence. It is all a matter of judgment and degree. The appraisal company expert boldly opined that even the market value was not affected by these considerations. Another of defendants' witnesses expressed the opinion that the actual value would be "close to" the "willing seller — willing buyer" figure. This witness said he did not believe plaintiff's building entitled to any "functional depreciation" or "economic obsolescence." The architect who testified for defendants said: "I can see no possible reason for even suggesting any credit for functional Page 284 depreciation" and expressed an opinion that "the building should be given some functional appreciation" instead. Nevertheless the actual value established by the assessment did represent a reduction of over twenty-three per cent from the actual cost of the property as reported by plaintiff to the insurance commissioner. The actual cost could not have been materially greater or less than the reasonable replacement or reproduction cost on January 1, 1941. We have already stated that one witness for appellant estimated what the cost of the building would have been if the auditorium — gymnasium wing had been omitted and the rest of the building constructed along standard or conventional lines, omitting many so-called "excess construction" items. His estimate claimed the cost would have been approximately half the cost of the building as actually built. Two Des Moines real estate men, as witnesses for appellant, indirectly utilized this argument by using the capitalization of income method, adding twenty-five per cent per square foot to the highest office rental in Des Moines to cover a theoretical superiority of the Bankers Life Building on account of these "excess construction" items including auditorium and gymnasium features. By so doing they arrived at "actual" value estimates far below the figure used by the assessor. It is manifest this line of testimony is based on a merely theoretical rental value — theoretical because the building is not rented and there is in Des Moines no comparable rented building. Comparisons are not valuable as evidence when there is nothing with which reasonably to compare. The same difficulty precludes or makes of little value comparisons of property values for equalization purposes. Defendants contend in various ways that appellant, in its objection to the assessment and its appeal to the district court, has not raised this issue. We doubt the validity of the contention. Probably an objection that the property is assessed "for more than the value authorized by law" is broad enough to permit any showing tending to require a reduction on appeal. But we find here no sufficient evidence to support a reduction of the assessment on the ground that it is inequitable. In Page 285 the very nature of things such evidence would be difficult to produce in the absence of comparable properties. The problem resolves itself into an inquiry whether the additional items labeled as "excess" are of such a luxury or ornamental or monumental character and the location so disadvantageous as to require a more drastic reduction from replacement or reproduction cost than was made here. Our study of the record leads us to conclude the excessive cost of construction above so-called "standard" represented a striving for utilitarian rather than aesthetic perfection. At least it seems to be conceded that even the additional cost items due to use of the highest grade of material justify themselves to some extent in greater durability, lessened maintenance cost and utility as well as in beauty and dignity of the resulting structure. The "luxury" features such as gymnasium, auditorium, extra elevators, pneumatic tube system, panel heating, auxiliary lighting plant and unusual capacity air-conditioning system are not to be written off in toto when determining actual value. The question of location does not seem too important. Three blocks from the retail and office building centers is not such a distance as materially to affect actual value of a building of this kind, however much it might justify difference in land values. [5] IV. Appellant contends that valuations reported by it to the insurance commissioner were "not conclusive as to actual market value." We have already said the quest here is not primarily for market value. These reports are not conclusive as to either actual or market value but they cannot be ignored. In the first report made after the building was completed and occupied, the book value and market value of the property were reported as $2,857,156.75, nearly twenty per cent above the actual value upon which the assessment complained of was based. The purpose of the statute (section 508.11, Code, 1946) that requires reports from life insurance companies is undoubtedly to assist the insurance department in determining the financial condition of the company. That must contemplate some consideration of the value of its properties and whether they Page 286 are worth the value at which they are carried on the company books. The purpose of all state regulation is "to make certain that the citizen will secure the indemnity for which he contracts and that the rates and charges for insurance which may be required of him will be reasonable." 44 C.J.S., Insurance, section 60. See section 508.12, Code, 1946. It is surely proper therefore, in arriving at the actual value of insurance property for tax assessment purposes, to know at what book and market value the company itself carries such property. While not conclusive it is important. We cannot say the very considerations influencing appellant in arriving at these reported figures should not also have an influence in determining actual value. [6] V. Many arguments are advanced by the parties. In fact the briefs of counsel for both appellant and appellees are unusually able and seemingly exhaustive of every possible angle involved. We are compelled to omit many details that might conceivably be interesting to the profession. The case is unique in that expert witnesses on both sides so unanimously praise the outstanding character of the building. One architect (not the one who designed it) generously said he had "been impressed with the intelligent use of an opportunity that comes once in one hundred years to create as near a perfect structure in all regards as it is possible to produce." He adds: "I think every feature in the building, with very few exceptions, contributes the full value which it cost either in permanence, in efficiency of arrangement, efficiency of operation, in economy of maintenance, and in prestige and advertising value which of course contributes to the business success of the owner." It is difficult to determine how much depreciation, if any, should be taken from replacement or reproduction cost in a case of this kind on account of possible unnecessary elaboration in design and construction. The figures indicate a substantial reduction of almost twenty-four per cent from what plaintiff itself considered to be actual cost. We are not prepared to say the record shows this an insufficient allowance. The statutory requirement that all property shall be assessed at sixty per *Page 287 cent of actual value tends to mitigate somewhat the inevitable but not always discernible injustices due to over-valuation. As has been said in many decisions, the science of assessment for taxation is far from being an exact science. Perfection is unattainable because there is no such thing as perfection. This is merely another way of saying that valuation, for assessment purposes, is in the realm of opinion and there is no absolute standard. The records and briefs here are long and apparently no consideration has been left unexplored. We find no sufficient basis upon which to interfere with the decision of the trial court. It is therefore affirmed. — Affirmed. MULRONEY, C.J., and OLIVER, BLISS, HALE, GARFIELD, MANTZ, and HAYS, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431254/	This cause had its origin in a sheriff's jury award made in a certain condemnation proceeding. In August, 1922, the Northwestern Manufacturing Company commenced the construction of a dam across the Des Moines River in the city of Fort Dodge, for the purpose of impounding and raising the level of the water and thereby creating a reservoir, that the company might have water at all seasons of the year for their condensers. The usual proceedings were taken by the company for condemnation, and a survey was made by its engineer, to determine what property might be affected by overflow. Chapter 363, Code of 1924. There was included in this survey the land in question, described as Lot 18, Block 1, Butler, Carter Griffin's First Addition to Fort Dodge, Iowa. Apparently at that time the record title to said lot was in Jeanette Millard, and she was properly made a defendant in the condemnation proceeding. Upon the trial of the case at bar it is shown that the plaintiff Bertha Barnhill had purchased the real estate under contract (unrecorded) April 1, 1921, from Mrs. Millard, and was in possession of the property thereafter. It further Page 1065 appears that the First Trust Savings Bank of Fort Dodge held the legal title, but merely as a trustee for Mrs. Barnhill, and it claimed no other interest therein. The sheriff's jury, on July 5, 1923, awarded the record title holder (Jeanette Millard) the sum of $200. Both she and the company appealed. Bertha Barnhill then commenced a separate action against the company for damages, so that in fact there were pending three cases involving the same issue. On September 8, 1924, the trial judge, without objection by anyone, entered upon the docket an order consolidating these causes for trial, and christened the new child by the name and title Jeanette Millard and Bertha Barnhill v. Northwestern Manufacturing Company, a corporation. Apparently the theory of the court in making the order of consolidation was to merge the rights of Mrs. Millard and Mrs. Barnhill, and, in effect, treat the entrance of the latter with this litigation as a party on the appeal from the original award. There was but one question involved on the trial in the district court, to wit: the damage, if any, to the property by reason of the construction of the dam. It is the contention of the company that there is no proven damage whatsoever. The jury returned a verdict of $825 in favor of the plaintiff, and judgment was entered accordingly. The primary propositions presented by appellant involve: (1) the competency of the evidence of plaintiff to support the pleaded damages, and (2) the instructions of the court bearing on the issues. Incidentally, it is claimed by the appellant that there is no proof of ownership in the plaintiff Bertha Barnhill, and that, under our holding in Waltemeyer v. Wisconsin, I. N.R. Co., 71 Iowa 626, this is an essential element to 1. EMINENT predicate recovery. The contention is without DOMAIN: merit, and the facts in the cited decision are proceedings: clearly distinguishable from the instant case. parties: Mrs. Barnhill is a real party in interest, and "owner" as purchaser under contract, must be viewed as defined. an owner, in a proceeding under eminent domain. See Wolfe v. Iowa R. L. Co., 178 Iowa 1. Is there any basis to support the further claim of appellant that the record presents no competent evidence of damages? The burden was on the plaintiff to prove damages. The Page 1066 2. EMINENT trial court instructed that the amount of DOMAIN: damages, if any, to which the plaintiff was compensa- entitled, is the difference between the fair tion: market value of the tract in question "as a measure of whole, immediately before the said dam was damages. constructed, and the fair and reasonable value after the said dam was constructed, not taking into consideration any advantages that may result to the plaintiff on account of the said improvement." The rule or measure is stated correctly. Des Moines Wet WashLaundry v. City of Des Moines, 197 Iowa 1082. The amount of damages in a case of this kind is largely an approximation, and we will not substitute our own judgment for that of the jury.Kosters v. Sioux County, 195 Iowa 214. The primary objection to the competency of the evidence bearing on the question of damages is, in fact, an indirect challenge to the competency of the witnesses, including the plaintiff. These witnesses were not ignorant of land values in 3. EVIDENCE: the vicinity of plaintiff's property. The opinion plaintiff herself had bought and sold another evidence: residence located on the same avenue, within a competency half block of her present home. She had made of expert. improvements on the property in question. The fact that she had paid $2,800 for the property about a year and a half before the water of the dam was impounded, was simply a fact to be considered by the jury in relation to her opinion evidence as to its current value. Another witness, Sandeline, was a barber 38 years old, who had lived in Fort Dodge all his life. He testified that he was familiar with the values of property in the immediate neighborhood, and had owned property within a block of the Barnhill homestead. His barber shop was located on the river bank. Another witness, a bookkeeper named Frantz, was called by plaintiff on the question of value. He had lived within a block of the Barnhill home for several years, and was a property owner in the neighborhood. He was familiar with the exchange of real estate in the neighborhood. Other witnesses — one a printer, one a brother-in-law, and one the husband of plaintiff — were offered, and their proffered testimony was subject to similar objections, which were overruled. The general rule is that, when a party has stated his knowledge Page 1067 of the value of the class of property to which his testimony relates, he is privileged to express his opinion. If we apply this test to the evidence to which appellant's objections relate, the opinions expressed were proper for the consideration of the jury. See Ball v. Keokuk N.W.R. Co., 74 Iowa 132. The occupation or business of a witness offering opinion evidence does not per se disqualify him, nor does relationship by affinity or consanguinity to the property owner make either the witness or his evidence subject to legal objection. We now pass to the assigned errors based on the instructions given by the court. May appellant justly complain of the statement of the issues by the trial court? It is said in the first instruction, referring to the original 4. EMINENT condemnation proceeding, that "the defendant DOMAIN: condemns said described real estate for the compensa- purpose of a site for the erection of a dam," tion: and that "the sole question which you are called instruc- upon to determine in this case is the amount of tions. damages which the plaintiff has sustained by reason of the appropriation of said land for said purpose." Furthermore, in the same instruction the Fort Dodge Gas Electric Company is mentioned as a party-defendant in the condemnation proceeding, without any reference to the fact that said company, by order of court, previously entered, had been dismissed, and that no right of action in the instant case is claimed against said company. The Fort Dodge Gas Electric Company should not have been named, or if named in stating the history of the case, the fact of its elimination should have been explained to the jury. It is quite apparent, also, that the defendant Northwestern Manufacturing Company was not attempting to take this property as a site for a dam. The evidence shows without dispute that the property is quite a distance from the dam, and has no connection whatsoever with the site. The defendant-appellant contended at all times, and now contends, that the property of plaintiff was not damaged, and that no award should have been made against the 5. TRIAL: company. The commencement of a condemnation verdict: proceeding impliedly admits the taking or the form. contemplated taking of the property in question. Page 1068 There is an affirmative showing in this case of the building of the dam, and some evidence to warrant the jury in finding that the property of plaintiff was affected by the raising of the water level. With this view of the situation, but one form of verdict was submitted to the jury. We discover no basis for criticism in this particular. In Instruction No. 2 the jury was again told that the damages, if any, which the plaintiff sustained must be "by reason of the land so appropriated by the defendants." In Instruction No. 4 the jury was told that, in ascertaining the market value of the property in question, they were privileged to consider the property with regard to "its locality with respect to business and demand for property 6. TRIAL: at that time, and any increase or development instruc- thereof that might have been reasonably expected tions: in the immediate future at that time." We applicabi- discover no evidence in this record to warrant lity to the instruction with reference to what the evidence. future of this property might be in respect to business, or the future demand or value of this property for business purposes. Instructions must have a relation to the record facts, that the jury may not indulge in conjecture and speculation. In Instruction No. 5 the jury was told that: "It is conceded by the parties to this suit that the title of the plaintiff of said lots goes only to the high-water mark of the river." The boundary line of the lot was not only not conceded by the defendant, but the contrary fact is specifically disclosed by the record. During the trial, the presiding judge said to counsel: "I think there is no question, anyway, but what this tract of land that is under consideration in this case was one tract, from the street to the high-water mark." Thereupon, counsel for the defendant said: "There is. We don't concede that. This is platted property, — not governmental property." Though we do not pass upon the question whether the evidence in this case is sufficient to enable the jury to determine the high-water mark, as correctly defined by the court, the evidence Page 1069 7. TRIAL: discloses that the recorded plat of the Butler, instruc- Carter Griffin's First Addition to the city of tions: Fort Dodge shows, according to the testimony of unwarranted the city engineer, that Lot 18 has a depth of assumption 140 feet. Our criticism is, under this record, of fact. that the court was not justified in instructing the jury that plaintiff's property extended to the high-water mark as a conceded fact. One further assigned error may be noted. In the defendant's motion for new trial, an affidavit was filed to 8. NEW TRIAL: support the claim that newly discovered evidence newly was in the possession of the defendant that discovered would have a material bearing on one element of evidence: damage claimed by the plaintiff. abuse of discretion. Mrs. Barnhill's testimony featured the overflow of a sewer into the basement of her property by reason of the fact that the sewer worked properly before the construction of the dam, and after its construction, the water was raised so as to back up in the sewer, causing the basement to be flooded during heavy rains. The defendant company had no knowledge of the outlet of a private sewer at the time of the trial, and assumed that the testimony showing that the contents emptied above the dam was true. Subsequent to the trial, it was discovered that the sewer complained of emptied into a city sanitary sewer, which had its outlet below the dam. It is now urged that the erection of the dam and the alleged increase of the water level had no causal relation to the damage asserted by the plaintiff in this particular. It is further shown that the defendant company made every reasonable effort during the trial to discover the true situation, and failed. Without further comment, we hold that the newly discovered evidence was a sufficient warrant for the granting of a new trial. The evidence constituted a material element in the quantum of damages, if any, that were allowable by the jury. For the reasons herein set forth, the judgment entered is —Reversed. FAVILLE, C.J., and STEVENS, VERMILION, and ALBERT, JJ., concur. Page 1070	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/4318750/	In The Court of Appeals Seventh District of Texas at Amarillo No. 07-18-00332-CV IN THE INTEREST OF T.J.B.-T., A CHILD On Appeal from the 72nd District Court Lubbock County, Texas Trial Court No. 2017-526,502, Honorable Ruben Gonzales Reyes, Presiding October 3, 2018 MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PARKER, JJ. Appellant Kory Thiel filed a notice of appeal without paying the filing fee. See TEX. R. APP. P. 5, 20.1. By letter of September 14, 2018, we notified Thiel that the filing fee had not been paid and that the appeal was subject to dismissal if he failed to pay the fee, or comply with Appellate Rule 20.1, by September 24. See TEX. R. APP. P. 20.1, 42.3(c). Thiel did not pay the filing fee. Instead, he filed a motion to voluntarily dismiss the appeal pursuant to Appellate Rule 42.1. See TEX. R. APP. P. 42.1. The Rules of Appellate Procedure require a party who is not excused by law from paying costs to pay the required fees. See TEX. R. APP. P. 5. Accordingly, the appeal is dismissed because of Thiel’s failure to comply with a requirement of the appellate rules and by virtue of his voluntary dismissal. See TEX. R. APP. P. 42.3(c), 42.1(a)(1). Per Curiam 2	01-03-2023	10-05-2018
https://www.courtlistener.com/api/rest/v3/opinions/3431239/	This action was brought by Harry Junior Samuelson, a minor, by his next friend, to recover from the defendants damages for personal injury suffered by the plaintiff by reason of the alleged negligence of the defendants. A verdict was directed as to the defendant, Cowin, and the action proceeded to a final verdict and judgment against the defendant, Sherrill. There was a verdict for $4,750, upon which judgment was entered and the defendant appeals. The pertinent facts are not in serious dispute. The plaintiff at the time of the accident in question was between eleven and twelve years of age. The accident happened on the evening of January 6th, 1936, on Dawson street, one of the principal thoroughfares of the city of Waterloo, Iowa, at about 5:30 p.m. Dawson street runs in an easterly and westerly direction and is intersected near the place of the accident here involved by Grandview and Fairview avenues. These intersecting streets are about 700 feet apart. On the evening of the accident Dawson street had been covered with snow which had been traveled over and then scraped for a width of about eighteen feet leaving some snow piled up on each side of the eighteen foot strip and leaving the surface of the street which was not paved somewhat rough, uneven and icy. The defendant, Sherrill, stopped his car at the intersection of Fairview avenue with Dawson street. There were some children, including the plaintiff and a Carl boy, standing or playing upon the street near this intersection. There is some dispute, as to whether the boys who were playing there asked Mr. Sherrill to permit them to attach their sleds to his car or whether Mr. Sherrill invited them to do so. At any rate, sleds were hooked on to the rear of Mr. Sherrill's car and he proceeded on Dawson street westerly and stopped his automobile about halfway between the two intersections we have mentioned to permit a passenger to alight from his car. At this stop the Carl boy and the plaintiff, Page 423 Harry Samuelson, both lying on their stomachs on their sled, one on top of the other, took hold of the left rear fender or the left bumper with their right hands and another sled similarly loaded was similarly attached to the right hand rear corner of the automobile. Mr. Sherrill then proceeded on westerly and at or near the intersection of Dawson street with Grandview avenue the automobile had acquired a speed of some twenty or twenty-five miles an hour and the boys on the sleds released their hold upon the automobile because, as they testified, the speed had increased to such an extent that they became frightened. The boys who had attached themselves to the right rear corner of the car loosened their hold on the car and turned their sled into the snow bank at the right-hand side of the cleared portion of the street. The boys on the left of the rear of the car let loose of the car shortly after the boys on the right. When the boys on the left, which was the Carl boy and the plaintiff, released their hold the sled upon which they were riding turned to the left, either by reason of something the boys themselves did or by reason of the speed at which the sled was going at the time it was released, and catapulted or slued to the left and clear of the Sherrill car but directly into the car of Russell Cowin which was proceeding easterly on Dawson street. The collision resulted in the death of the Carl boy and very serious injury to the plaintiff, Harry Samuelson. There were several grounds of negligence alleged by plaintiff but only one of such grounds was submitted to the jury by the court, and this ground was submitted to the jury in instruction No. 5, as follows: "You are instructed that the only charge of negligence made by the plaintiff against the defendant which is submitted for your determination is as follows: That the defendant, Cyrus M. Sherrill, was negligent in that the defendant, with knowledge that the plaintiff was riding on a sled behind the defendant's automobile and holding on to the rear of the automobile, drove his automobile at a rapid rate of speed." [1] One of the assignments of error argued by the appellant is that the plaintiff did not sustain the burden of proof as to the ground of negligence submitted to the jury and this contention was raised by the defendant in motions to direct Page 424 a verdict and for new trial, and it is here presented as one of the grounds for a reversal. Reported cases are so numerous in this and other states that it is unnecessary to cite them stating and approving the rule on the general proposition that if the driver of a vehicle knows that children of tender years are occupying a hazardous position on or near the vehicle the driver must use ordinary care not to injure them. In the instant case the driver knew of the dangerous position occupied by the plaintiff and the other boys; he knew the condition of the street over which he was traveling; he knew the speed at which he was driving; he knew the condition of traffic on the street, and under such circumstances the defendant was in duty bound to exercise such reasonable care and prudence for the safety of the plaintiff and the other children as a reasonably careful and prudent person would exercise under like or similar circumstances and conditions. And if under such circumstances, with knowledge of the facts, above related, and with knowledge that the plaintiff was riding on a sled hanging on to the rear of the defendant's automobile, the defendant operated and drove his car at a greater rate of speed than an ordinarily careful and prudent person would have used, then the defendant would be guilty of negligence. The court properly and very plainly submitted this rule to the jury and the jury by its verdict found the defendant guilty of negligence as charged. We do not think the court erred in the submission of the question of defendant's negligence to the jury, and we conclude that the record warranted such submission. Whether a particular speed of an automobile is or is not excessive and negligent depends entirely on the surrounding circumstances. Driving the car at twenty or twenty-five miles an hour would not of itself be negligence, but it seems to us that whether or not the defendant was negligent in driving his car at twenty or twenty-five miles an hour with these little boys on their sleds attached behind, under the existing conditions and age of the boys, was for the jury to determine, under the facts and circumstances as shown by the record. [2] Another complaint made by the defendant here, and which was made one of the grounds for a directed verdict, is that the speed of the defendant's car was not the proximate cause of the injury to the plaintiff for the reason that the plaintiff voluntarily turned his sled into a position of danger Page 425 after releasing his hold on the defendant's car. We do not think there is any merit in this contention. We have frequently defined proximate cause and there does not seem to be a necessity of here repeating our language in defining the phrase. See Withey v. Fowler Co., 164 Iowa 377, 145 N.W. 923; Handlon v. Henshaw, 206 Iowa 771, 221 N.W. 489; Dennis v. Merrill, 218 Iowa 1259, 257 N.W. 322; Gray v. City, 221 Iowa 596,265 N.W. 612; Riddle v. Frankl, 215 Iowa 1083, 247 N.W. 493. [3] Another complaint of the appellant is that the plaintiff was guilty of contributory negligence, as a matter of law, and that the court erred in not sustaining a motion to direct a verdict or for a new trial on this ground. We have so often and so recently held that a child between the ages of seven and fourteen is presumed to be free from contributory negligence, and that the fact that the record shows the boy between those ages establishes a prima facie case of nonnegligence on his part. In Brekke v. Rothermal, 196 Iowa 1288, 196 N.W. 84, former Justice Faville analyzed our prior cases and announced or re-announced the foregoing rule. This announcement has been followed in many cases since. In Webster v. Luckow, 219 Iowa 1048, 258 N.W. 685, Justice Donegan again reviewed all the cases bearing upon this question and again announces the rule above mentioned. [4] The next contention of the appellant is that the court erred in not sustaining his motion for a directed verdict and for a new trial on the ground that the plaintiff was a passenger in the defendant's automobile, and that the provisions of the Iowa guest statute (sec. 5026-b1) apply. There seems to be no direct ruling either in this state or any other as to what constitutes a "passenger or person riding" in a motor vehicle. However, we find some help in construing our statute in the case of Puckett v. Pailthorpe, 207 Iowa 613, 223 N.W. 254, the opinion of which was written by former Justice J.W. Kindig. In the course of the opinion in the Puckett case we say (page 616), "`There are two main elements in the legal definition of a passenger: First, an undertaking on the part of a person to travel in the conveyance provided by the carrier; and second, an acceptance by the carrier of a person as a passenger.'" It is obvious that a definition of "carrier" that would apply to a common carrier might not be applicable at Page 426 all where the carrier was a gratuitous one. The opinion in the Puckett case continues (page 617), "Moreover, the one who is called a passenger must be riding in the car. To place emphasis upon this interpretation, the legislature confined the passenger or person named in the section [5026-b1] to one who is `riding in' a motor vehicle `as a guest or by invitation, and not for hire.' * * * "Entrance must be made into an automobile then in operation by a driver, so that a journey can be taken. * * * `moreover, the one who is called a passenger must be riding in the car.'" The Michigan case of Langford v. Rogers, 278 Mich. 310,270 N.W. 692, distinguishes between a statute such as ours and the Michigan statute. The Michigan statute provides that "no person transported by the owner * * * of such motor vehicle [etc.]," Comp. Laws Mich. 1929, § 4648, and the opinion in the Michigan case held that some children riding upon a toboggan hitched to an automobile were being "transported" within the meaning of the Michigan statute, and the opinion notes the distinction between the provision of the Michigan statute and the statutes of California and Iowa. The California statute is similar to the Iowa statute and provides that the person must be "riding" in the automobile to be within its provisions. We find no error in the court's ruling upon this question, and conclude that the plaintiff was not a passenger in the defendant's automobile within the meaning of the guest statute. [5] The appellant further contends that the court erred in excluding from the record an ordinance of the City of Waterloo relative to coasting on the city's streets, offered by the defendant. The ordinance in question provides: "No person shall coast down, in or upon the streets or sidewalks in the City of Waterloo, Iowa, upon any sled, wagon, gocycle or other vehicle or device, and whoever does so shall be guilty of a misdemeanor and upon conviction thereof, shall be punished accordingly." Many definitions of coast are given by the various dictionaries. For instance, Webster's New International Dictionary defines the word "coast" as "To slide downhill upon Page 427 snow or ice as on a sled; to ride, glide, or move by or as by the force of gravity, as on a bicycle without pedaling." In Funk Wagnall's New Standard "coasting" is defined as follows: "The sport of sliding downhill on a sled or car, or of riding a bicycle, as down a slope, without working the pedals." Century Dictionary and Cyclopedia defines the word as follows: "To slide on a sled down a hill or an incline covered with snow or ice; to descend a hill on a bicycle, removing the feet from the pedals. Coasting, the sport of sliding on a sled down an incline covered with snow or ice." It is apparent that the purpose of the ordinance was to protect pedestrians and other travelers from injury from vehicles or sleds moving by the force of gravity alone. We are unwilling to follow the appellant and hold that the ordinance in question prohibiting the act of "coasting down" on the streets or sidewalks of the city should be construed as prohibiting the movement of a sled or other vehicle as was the plaintiff's sled in the instant case. Facetiously, such a construction would prevent the hauling of any kind of a trailer behind an automobile; it no doubt would prevent the mother from pushing or pulling her baby carriage or other similar vehicle upon the streets or sidewalks. However, even though the ordinance might be held to prevent the very act here under consideration, its introduction into the record could only go to prove contributory negligence on the part of the plaintiff, and as the plaintiff was under fourteen years of age the violation of the terms of the ordinance would not prevent a recovery, but might possibly create a jury question as to whether the presumption of freedom from contributory negligence had been overcome. But we hold that the record does not show a violation of the ordinance by the plaintiff and its admission or exclusion from the record could not, under such circumstances, constitute error. It appears from a careful study of the record that the case was carefully tried by the trial court and the disputed questions of fact were very carefully and properly submitted to the jury by the court. No reversible error appearing, we are constrained to affirm the action of the trial court in overruling appellant's various motions, objections and exceptions, and in Page 428 entering judgment upon the verdict returned by the jury. The case will be affirmed. — Affirmed. STIGER, C.J., and MITCHELL, KINTZINGER, DONEGAN, HAMILTON, RICHARDS, MILLER, and SAGER, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431240/	The plaintiff, Roy B. Woodhull, was the owner of premises on which there was a two-story brick and tile building with basement, and known as No. 122 North Elm street, Creston, Iowa. Under date of the 6th day of October, 1930, plaintiff, by a written lease, rented one-half of the first floor, one-half of the basement, and all of the second story of this two-story building, and also a brick and tile building on the rear of the lot, to the defendant for the period of three years commencing October 1, 1930, and ending October 1, 1933, with option to lessee to extend said lease for two years on the expiration thereof. By the terms of the lease defendant was given possession of all of the leased premises on the execution of the lease, with the exception of the second story of the building, of which possession was to be given on March 1, 1931, and agreed to pay $25 per month from October 1, 1930, to March 1, 1931, and $70 per month after March 1, 1931, to the end of the lease. The leased premises were to be used for the purpose of dry-cleaning business and residence purposes. The defendant entered into the possession of the leased premises, with the exception of the second story of said building, on or about the date of the execution of the lease, and installed certain dry-cleaning machinery and equipment therein. The one-half of the first floor leased to the defendant and occupied by him with his dry-cleaning business was not separated by any partition from the remaining one-half of such room, which was occupied by the plaintiff who operated a shoe repairing Page 1332 business therein. Some time after the defendant had begun to occupy and use said one-half of the first floor with his dry-cleaning business, difficulties seem to have arisen between him and the plaintiff. Some time in the month of February, 1931, the defendant prepared to lease other premises and move his property from the premises leased from plaintiff, and on the 24th day of February, 1931, the plaintiff commenced this action. In his petition the plaintiff alleged the execution of the lease, that defendant entered into possession thereof and installed machinery and equipment thereon, and that the defendant was about to remove such machinery and equipment from said premises, and asked that defendant be enjoined from removing or attempting to remove the said property from leased premises during the life of the lease and that plaintiff's lien be established on all said property. Defendant by an answer and amendment thereto admitted the execution of the lease and the occupation of the premises, but denied the other allegations of the petition. Further answering, defendant alleged that the lease did not contain the real agreement between the parties, that before said lease was executed plaintiff was having difficulty in securing a permit from the city for the operation of a dry-cleaning business, that plaintiff induced defendant to sign said lease by stating that it would be for temporary purposes only in order to secure a permit from the city to operate said business, and that after such permit should be secured a new lease would be executed containing other and different provisions; that among such provisions was to be a provision for the erection of a partition in said building or the installation of a dust remover, or a ten-year term or the purchase of the building; that defendant relied upon the promises of plaintiff; that after such permit was obtained the plaintiff refused to execute such other lease and made conditions so intolerable that defendant was unable to carry on his business successfully; that plaintiff made no effort to erect a partition or to keep down the dust in the room; and that plaintiff and his employees carelessly and negligently brushed against clothing that had been cleaned and necessitated the recleaning thereof, and made it impossible for defendant to continue the occupancy of the premises and the operation of said dry-cleaning business thereon. In his original petition plaintiff admits that no rent was due at the time of filing such petition, but in an amendment filed on January 27, 1932, plaintiff added a second division to his petition Page 1333 and asked for judgment for $420 rent from March 1st to January, 1932. To this amendment to petition defendant filed an answer in which he repleads the defenses set up in his original answer and amendment. Trial was had to the court. Thereafter, the court filed an opinion and a decree finding that the defendant had failed to establish any binding agreement as to the execution of another lease; that the lease sued on was valid; that plaintiff was entitled to the rent in the amount asked; that his landlord's lien be established upon the property of defendant in said premises; and that defendant be enjoined from removing said property therefrom. From this decree the defendant appeals. Appellant complains of the findings and decree of the trial court in holding that the oral evidence introduced was incompetent; that there was no collateral agreement to make another lease; and that there was no fraud on the part of appellee. Appellant testified as a witness for himself. In his testimony he stated that, while negotiations for the lease were in progress, the appellee met with opposition on the part of the city council to granting a permit for a dry-cleaning establishment; that appellee thereupon proposed to appellant that they execute the lease in question for the purpose of having something to present to the city council, and for the purpose of furnishing a ground for a suit against the city in case the permit was not granted; that it was understood and agreed that the said lease was to be temporary only and that after the permit should be secured a new lease for a term of ten years would be made, and appellant could have any kind of a lease he wanted; that the appellee told him that the thing to do at the time was to sign the lease they had drawn up and change it later; that appellee said he would put in a partition or dust remover or anything to make the dry-cleaning business successful. Appellant further testified that after the permit had been granted appellant suggested making a new lease and the appellee refused to do so. Appellant further testified that, because of the dust which came from the shoe repairing business conducted by appellee in the same room, the noise made by the shoe repairing machinery, and the interference by appellee and his help with the operation of appellant's business, it became impossible for him to continue to operate his business at a profit upon the said premises. Appellant's wife also testified as a witness and stated that she Page 1334 heard some of the conversation before the lease was executed, in regard to the permit and a new lease to be executed for ten years, after the permit was obtained. Both appellant and his wife claimed that his business suffered from the dust from the shoe repairing business conducted by appellee, and that appellee and his help, in going to the toilet and furnace in the basement, brushed dust and dirt from their hands and aprons upon the clothes which had been cleaned and pressed and thus made it necessary for appellant to reclean and repress the garments, and that this caused dissatisfaction on the part of his customers because of delay in delivery. Both appellant and his wife testified that they would not say that the appellee and his help intentionally dirtied these clothes or intentionally did anything else to interfere with the operation of the dry-cleaning business. One Blodgett, who was employed by appellee, was also called as a witness for appellant. This witness was also one of the witnesses to the lease, and he testified that he could not say that he heard anything said about a ten-year lease, but that he did hear some talk that the lease could be changed later to the satisfaction of the parties. He said he understood the lease was a three to five-year contract, and that the rental was agreed upon and that everything was fine; that they also talked that if they got their permit if it was mutually agreeable together they would make a new contract; otherwise this contract was to stand. Appellee as a witness denied that there was any agreement in regard to a ten-year lease, and both appellee and appellant's witness Blodgett, testified that they did not touch or dirty the clothes which had been cleaned and pressed, and that there was no reason why these clothes should be hung in such a way as to interfere with the entrance to the basement. In the answer and amendment thereto filed by appellant, in the testimony of both appellant and his wife, and in the argument presented to this court, it appears to be appellant's contention that the lease was entered into for the purpose of forcing the city to issue a permit and without any intention that such lease should ever be in force. If this were true, there might be a serious question as to the appellant's standing and right to relief in a court of equity. However, we do not deem it necessary to consider this phase of the case, because a more satisfactory result can be reached by deciding the whole case on its merits. Page 1335 The record shows that the lease in question was drawn up upon a printed form by an attorney. In addition to the printed form, however, several other matters were added to the lease in typewriting. Among the additions thus made was a provision giving the appellant the option to renew the lease for two years at the expiration of the three-year period; a provision in regard to water rentals; a provision in regard to the heating of the building; a provision in regard to an option to appellant to purchase; and a provision that the possession of the second story of the brick and tile building was not to be given to appellant until March 1st, that the rent until that time would be $25 per month, and that thereafter it would be $70 per month. The lease appears to be regular in every way and embodied terms which had been discussed by the parties. Moreover, it appears that the appellant had come to Creston in September prior to the execution of the lease; that he had never lived in Creston before that time; that the dry-cleaning business which he planned to operate was a new venture by a stranger in a strange city, and it does not seem probable that he would have desired to be tied up with a ten-year lease without any knowledge or assurance as to how the business might succeed. As we view the evidence in its entirety, leaving out of consideration the appellee's objections as to the competency of much that was offered, we do not think there was a sufficient showing of a collateral agreement for a ten-year lease, or of any fraud on the part of the appellee. The evidence was all taken subject to objections and, in view of our finding, we do not consider it necessary to enter into a discussion of the holdings of the trial court in regard to the competency of this evidence. As far as the acts of the appellee and his help are concerned, which it is claimed interfered with appellant's business and made it impossible for him to operate it on the leased premises, it appears quite clearly from the evidence of the appellant and his wife that such interference, if any, was so trivial that very little was said about it. Both appellant and his wife testified that they got along very well with the appellee, and that there was practically no disagreement except in regard to granting a new lease. Appellant also complains that the dust arising from the shoe repairing business was such that it was impossible to continue operating his dry-cleaning business in the same room unless a partition was installed or unless appellee installed dust removers on his shoe repairing machinery. It appears that appellee refused to allow a *Page 1336 partition to be installed. It further appears that the shoe repairing machinery operated by the appellee has dust removers connected therewith, which, however, do not remove all the dust, and that there was some talk between the appellant and the appellee in regard to the appellee procuring new dust removers or improved machinery with dust removers attached thereto. Complaint is also made that the noise from the shoe repairing machinery interfered with appellant taking orders and talking to customers over the telephone. Appellee admits that some dust escapes from his shoe repairing machinery and that he has considered installing new machinery, and that when in operation the machinery makes considerable noise. It appears without dispute that the shoe repairing business has been conducted by appellee in the room in question for several years; that all of the conditions complained of existed before the lease was executed; and that the appellant did conduct his dry-cleaning establishment in this room with fairly good success under the conditions as they existed. We do not find sufficient evidence to show that the conditions existing were such as to make it impossible for the appellant to conduct his dry-cleaning business in the leased premises. The execution of the lease was admitted by appellant. By its terms the appellee was entitled to the lien and the rents asked in his petition and amendment thereto. Appellant sought to invalidate such lease by the affirmative defenses set up in his answer and amendment. The burden was on appellant to establish these affirmative defenses. This burden the appellant has failed to sustain. The decree of the trial court will, therefore, be affirmed. All Justices concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431242/	On the 2d day of May, 1917, defendant insurance company issued a policy of insurance on the life of John B. Jacobson, in which the plaintiff herein was named as beneficiary. On the 11th day of April, 1922, John B. Jacobson attempted to change the beneficiary named in said policy to Viola M. Jacobson, his then wife, in pursuance of the provisions of the terms of said policy. John B. Jacobson died on the 19th day of April, 1922. Plaintiff herein brought suit on the original policy, which named her as beneficiary, making the insurance company and Viola M. Jacobson defendants. The insurance company paid into the hands of the clerk of the district court of Pottawattamie County the sum of $968.70, representing the amount due on said policy after certain deductions, which the company was entitled to make. The litigation from thenceforward was a contest between the plaintiff herein, who was the mother of John B. Jacobson, and Viola M. Jacobson, his wife, as to who was entitled to the money so paid into the hands of the clerk of the said district court. The evidence in the case is brief, and in substance is as follows: When this policy was taken out by John B. Jacobson, at the solicitation of his sister, Ida Steach, he gave a note to the company for the first premium. He took the policy home, and delivered it to his mother, and said to her, in substance: "This is for your protection. You keep up the premiums on it, and I will never change it." And the mother told him, in response thereto, that she would keep it up. The mother paid the note given for the original premium, and paid all subsequent premiums. This policy was kept in a small box in a drawer in the buffet in her home. Just before the change of beneficiaries under the policy, the brother and his prospective wife called at the mother's home, and the family all went riding, leaving the brother and his prospective bride alone in the house. This was on the 9th of April. On the death of the brother, the mother went to look up her insurance policy, and it was gone. On the 11th of April, John B. Jacobson, accompanied by his prospective wife, went to the office of the insurance company in Omaha, turned in the policy, and made out the proper papers to have the beneficiary named Page 772 therein changed; and the defendant Viola M. Jacobson was made beneficiary. Under this statement of facts, the district court held that the plaintiff was entitled to the relief prayed, and awarded her the proceeds of said insurance policy. It is settled law in Iowa that, where the right is reserved to change beneficiaries, the beneficiary first named acquired no vested interest in the policy, and the person insured has the right, at any time he may see fit, to change beneficiaries, on compliance with the rules and regulations of the company. This rule is held by this court in Hicks v. Northwestern Mut. L. Ins.Co., 166 Iowa 532; Townsend v. Fidelity Casualty Co., 163 Iowa 713; Carpenter v. Knapp, 101 Iowa 712; Wandell v. Mystic Toilers,130 Iowa 639; Condon v. New York Life Ins. Co., 183 Iowa 658;Schmidt v. Iowa K. of P. Ins. Assn., 82 Iowa 304; Hirschl v.Clark, 81 Iowa 200. If this is the rule governing the facts we have before us, plaintiff would have no cause of action. We are disposed, however, to think that, under the facts of this case, the rule announced in the above entitled cases is not controlling. It is apparent, from the evidence in this case, that the transaction between the mother and the son, at the time this policy was delivered to her, amounted to a contract: that is to say, the son, recognizing the right under the policy to change the beneficiary at any time he saw fit, contracted with the mother that, in consideration of her paying the premiums on his policy, he would not exercise that right and change beneficiaries. The evidence shows that the mother paid all the premiums that were paid on this policy, in pursuance of this contract or understanding on her part. This was the moving consideration on her part to support the contract, and, in an equity court at least, creates the right on her part which will be enforced as against all persons not having a superior equity. In the case of Columbian Circle v. Mudra, 298 Ill. 599 (132 N.E. 213), under a case almost identical with this, it is held that equitable rights may be acquired in a beneficiary certificate of insurance which the court will recognize and enforce against an attempt to change the designated beneficiary, and the case holds: Page 773 "The rule in this state is that, while the assured may, in the absence of intervening equities, change at will the beneficiary named in his insurance policy, equitable rights may be acquired in a beneficiary certificate of insurance which a court of equity will recognize and enforce." This doctrine is also enforced in Supreme Lodge K. L. of H.v. Ulanowsky, 246 Pa. 591 (92 A. 711); Freitas v. Freitas,31 Cal. App. 16, 19 (159 P. 611, 613); Supreme Lodge of K. of P.v. Ferrell, 83 Kan. 491 (112 P. 155); Stronge v. Supreme Lodge,K. of P., 189 N.Y. 346; Leaf v. Leaf, 92 Ky. 166 (17 S.W. 354, 854); Supreme Council Catholic Benev. Legion v. Murphy, 65 N.J. Eq. 60 (55 A. 497); Brett v. Warnick, 44 Or. 511 (75 P. 1061); McKeon v. Ehringer, 48 Ind. App. 226 (95 N.E. 604); Benardv. Grand Lodge A.O.U.W., 13 S.D. 132 (82 N.W. 404); Royal Arcanumv. Riley, 143 Ga. 75 (84 S.E. 428); In re Reid's Estate,170 Mich. 476 (136 N.W. 476). The courts of Tennessee and Missouri seem to hold to the contrary. Under this line of authority, we conclude that the transaction between the mother and son heretofore related, which was carried out by the mother, created in her a superior equitable right which she is entitled to enforce herein as against the wife, who, so far as the change of beneficiary was concerned, was a mere volunteer. The ruling of the district court in relation thereto is, therefore, affirmed. — Affirmed. FAVILLE, C.J., and EVANS and ARTHUR, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431244/	Appellant and appellee were married in 1892. To this union two children were born, both of whom died in Page 911 infancy. The first ten years of their married life were spent in farming a tract of land near Prairie City, which 1. DIVORCE: was then owned by the father of appellant. They alimony: later moved to the city of Des Moines, where guilty appellant engaged in real estate business, and party: later in the grocery business. On the death of discretion his father he inherited the 96-acre farm above of court. referred to, together with a residence property in the city of Des Moines; and appellee acquired by inheritance money which was invested in two residence properties in the city of Des Moines. The truth is that all the property in controversy herein was inherited, as above specified, and no money or property involved is the result of their joint efforts. In April, 1923, the appellee herein, Rosetta Blain, filed a petition in the Polk County district court against appellant, asking a divorce on grounds of cruel and inhuman treatment. In that proceeding appellant answered, and filed a cross-petition asking a divorce against his wife. On the trial of that case, the appellant herein dismissed his cross-petition, and on December 24, 1923, the case went to decree, resulting in the holding that Rosetta Blain had failed to furnish sufficient evidence to sustain the allegations of the petition or to entitle her to a divorce. Said petition was dismissed at her cost. In that proceeding one of the contentions was that the appellant herein suffered from a venereal disease, which he had communicated to her. On the 28th of December, 1923, the appellant herein filed his petition against appellee, asking for a divorce on the grounds of cruel and inhuman treatment. Appellee answered, and filed cross-petition, the grounds of which were cruel and inhuman treatment. Appellant answered the cross-petition with a general denial and a plea of former adjudication. There was apparently no contention whatever but that the appellant was entitled to a divorce on the evidence introduced, which went to the cruel and inhuman treatment charge by reason of the unproved charges against him in the former case, relative to his affliction with a venereal disease. The decree gave him a divorce, and from that part of the decree no appeal seems to have been taken; but, as stated above, it awards appellee herein $5,000 alimony. From this award the plaintiff appeals. Page 912 As to the marital relations between the parties, we have very little light. Enough, however, has crept into the record to show that their married life was not a bed of roses. The record, however, does show that the inherited property of each was kept, treated, and handled separately. The evidence as to the value of the respective inheritances varies greatly. As to the 96-acre farm, the estimates of value range from $125 to $150 an acre; while the valuation of the town property ranges from $3,000 to $5,000 each. We think a fair estimate of the worth of the assets of the appellant is approximately $20,000; while that of appellee is approximately $10,000. The appellee had an income of about $75 a month from the town properties in her name. There seems to have been no question but that the appellee properly performed her duties as housewife. On the other hand, appellant seems to have been a satisfactory provider, and to a large extent, if not entirely, furnished the living. The evidence shows that, at the time of the trial, the appellee was about 44 years of age, while the appellant was about 46. Appellee was apparently in good health, but the appellant was a sufferer from gallstones, and was to have an operation performed therefor, the result of which no one could forecast. The decree determined that the appellee was the "guilty party," and appellant insists that, this being true, she forfeited the right to alimony. We have, however, by reason of Section 3180 of the Code of 1897 (Section 10481, Code of 1924) held that, even though decree be granted, under certain conditions alimony may be awarded to the guilty party. Leupold v. Leupold, 164 Iowa 595;Coulthard v. Coulthard, 91 Iowa 742; McDonald v. McDonald,117 Iowa 307; Barnes v. Barnes, 59 Iowa 456; and Mitchell v.Mitchell, 193 Iowa 153, in which latter case are cited all former decisions affecting this proposition. It is apparent from a review of these decisions that the question of whether alimony shall be allowed the guilty party, under these circumstances, is largely a discretionary matter with the court. In Mitchell v. Mitchell, supra, a somewhat similar set of circumstances existed as prevails in this case. In that case the husband had property worth about $50,000, and the guilty wife *Page 913 was awarded $7,500 by the lower court. In reviewing that award, we held that the same was excessive, and reduced it to $3,000. We are disposed to view the present case in a very similar light. While we do not feel that the court erred in allowing the appellee alimony, we do feel that the amount allowed was excessive, and in our judgment it should be reduced. The fact questions, as well as the law involved herein, are so nearly parallel with the Mitchell case that we refrain from further comment. In accordance with the precedent established in that case, we feel that appellee's award of alimony should be, and the same is, fixed at $1,200. The original decree of the district court is modified accordingly. — Modified and affirmed. FAVILLE, C.J., and EVANS and MORLING, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431245/	The ultimate question is whether an interest installment of $1,500, due October 1, 1924, for which a certificate of deposit was issued by the Merchants National Bank of Grinnell, and retained by it "in escrow" until after its failure, was discharged or paid thereby; or perhaps, more properly, Who must bear the loss on the certificate caused by the failure of the bank? Defendant's intestate sold the hotel and personal property in question, located in Grinnell, on contract. The Monroe Hotel Corporation (hereinafter called "the corporation") became the owner of the vendee's rights thereto. The corporation objected to the vendor's title to the real property, because of a reservation in an antecedent deed. By written "escrow" agreement, dated September 17, 1924, a conveyance and note and Page 849 mortgage for the balance of the purchase price, $60,000, all dated April 1, 1924, were deposited, with the abstract, with the Merchants National Bank, pending the determination of merchantability, which, by the agreement, was submitted to the district court for adjudication. On September 29, 1924, the district court, in deciding on the agreed case, declared the title unmerchantable. By the terms of the note, an installment of interest, amounting to $1,500, would become due October 1, 1924. Mr. Pulliam was the manager of the corporation. Mr. Johnson, of Oskaloosa, was its attorney. Mr. Patton was attorney for defendant. Mr. Pulliam testifies without contradiction: "Following the trial of the case, I recall a conversation between myself and Mr. Patton, as attorney for Mr. Gifford [defendant], about payment of interest that would fall due on the 1st day of October, 1924. * * Mr. Patton suggested that it be put up in interest-bearing paper, so whoever it fell to, or belonged to, and the settlement was finally made so they would be getting some interest on the money held up. * * * We were ready to pay the interest at that time. * * * There was an escrow agreement or contract that Mr. Patton had drawn up while we were in his office. We went down to the bank [Merchants National Bank] to carry out that escrow agreement. * * * I wrote a check for the corporation to the bank for $1,500. The bank made the payment for $1,500. They issued a certificate of deposit for $1,500 in Mr. Gifford's name. * * * That certificate of deposit was not delivered to Mr. Gifford. It was delivered to the * * * Merchants National Bank. * * * I had a reason for drawing the check to the bank, and not to Mr. Gifford. I had confidence in the bank, but that was not the reason. I put it up to Mr. Patton just in the form it was. It was agreed to by Mr. Patton and Mr. Johnson and I. * * * Whoever made the suggestion, I agreed to it and carried it out. I would have been glad to have given Mr. Gifford the $1,500 that day, but the reason I could not was because of the correcting of the title." The "escrow" agreement of September 17, 1924, recited that the deeds and bill of sale for the property and the $60,000 note and mortgage were "deposited with the Merchants National Bank of Grinnell, Iowa, in escrow, pending the decision of said district court as to the questions submitted to said court in said Page 850 agreed statement of facts, said papers to be held in escrow by said Merchants National Bank until such decision and upon a decision by said court, the Merchants National Bank to then deliver said warranty deed, bill of sale, and two quitclaim deeds to the Monroe Hotel Corporation of Iowa, and deliver to Frank H. Gifford, administrator, said note and mortgage." By the "deposit in escrow" agreement of October 1, 1924, it is provided: "The inclosed certificate of deposit issued by the Merchants National Bank of Grinnell, Iowa, for $1,500, dated October 1, 1924, and payable to Frank H. Gifford, administrator * * being the interest due October 1, 1924, on the $60,000 promissory note executed by the Hotel Monroe Corporation of Iowa and payable to said administrator, and now on deposit in escrow with said bank, is to be kept by said bank on deposit until such time as said $60,000 note and mortgage securing same is released to said administrator under the agreement accompanying the deposit of said note and mortgage." In the transaction of October 1, 1924, the Monroe Hotel Corporation made its check for $1,500, dated October 1, 1924, payable to Merchants National Bank. It had on it the notation, "In payment of int. to F.H. Gifford Admr. due Oct. 1-1924." The certificate of deposit of Merchants National Bank, dated October 1, 1924, "certifies that F.H. Gifford, Admr. has deposited in this bank payable to the order of self $1,500 * * * payable in current funds when properly endorsed. Bears interest at the rate of 5 per cent, per annum, payable 3, 6, 9 or 12 months after date. * * * No interest after one year." The deposit agreement and the certificate were inclosed in an envelope, on which was written, by agreement of the parties concerned: "The certificate inclosed $1,500 payable to Frank H. Gifford Admr. is subject to escrow agreement inclosed. This to be opened only by authority of said administrator and the Monroe Hotel Corporation." A suggestion had been made of the possibility of getting quitclaim deeds which would remove the objection to the title. Page 851 During October, 1924, defendant's attorney procured such deeds. He testifies that he told Pulliam: "We will send you the deed and the mortgage and the quitclaim deeds from the Grinnell heirs and from F.H. Gifford, and the abstract. We will send them all down at one time; have the abstract showing the quitclaim deeds and showing the deed from Gifford, Admr. to the Monroe Hotel Corporation and expedite the matter, and not require two sendings of the abstract and two costs in bringing it forward." Pulliam said he would send the deeds to his attorney, to which defendant's attorney replied that, before this was done, he wanted them recorded. He had them recorded October 28, 1924, and the next day took them to Pulliam, saying: "`Now the quitclaim deeds are now a matter of record, and the title is corrected. I want all these papers released.' * * Before he would do anything further with it, he wanted an appraisement made of that personal property, so as to separate what the mortgage actually covered and what was subsequently added to the personal property. I said to him, in substance, that could make no difference in the clearing of the title and releasing of these escrow papers and turning over to Mr. Gifford the certificate of deposit. * * * The only objection he had then to releasing certificates of deposit * * * was, he wasn't going to do it until an inventory was made of the personal property." Mr. Patton gave the quitclaim deeds to Mr. Pulliam, who submitted them to Mr. Johnson, at Oskaloosa. Mr. Patton says that his recollection is that Mr. Pulliam "delivered these deeds back to me, saying he would do nothing with them until that inventory was made. I have had those deeds in my possession ever since." (The evidence is in conflict as to who held the deeds.) The original contract is not in the record. An abstract of title was in the bank, and it is assumed in the evidence that the abstract, properly continued, was to be furnished. Mr. Patton says: "I had an abstract of title at that time. The abstract of title had, at a prior date, been deposited, under an agreement Page 852 with Mr. Gifford, as administrator, and the Monroe Hotel Corporation, sealed up in the Merchants National Bank, and was there at the time I was requesting it to be delivered. The abstract of title did not show a merchantable title, because it was, under this agreement, sealed up in the bank. The abstract of title had been continued previously for the purpose of this sale, for the purpose of making the deed. This was some time in 1923. It had been brought up to the date of the escrow agreement. * * Q. No abstract of any kind was tendered to Mr. Pulliam, or the Monroe Hotel Corporation, or their attorney, showing any of those facts, was there? A. Well, unless my demand that the abstract and the other papers should be released and delivered would constitute a tender." Defendant's attorney testifies also: "There was also an abstract of title to the Monroe Hotel * * * These papers were placed in the Merchants National Bank of Grinnell, Iowa. They stayed there until April 6, 1925." On the record, it must be found that the abstract of title, properly continued, was not furnished until April 6, 1925. The Merchants National Bank did not open its doors on or after November 1, 1924. On April 6, 1925, an agreement between the defendant and the corporation (set out later) was made, by which, on performance of specified conditions, the personal property was to be discharged from the mortgage. The $60,000 note has indorsed on it: "The interest due on this note on October 1, 1924, is represented by a C.D. in the Merchants National Bank of Grinnell, Iowa, as an escrow deposit awaiting determination as to its value and who shall stand the loss caused by the failure of said bank." Defendant argues, in substance, that the interest due October 1, 1924, was paid only conditionally by means of the certificate of deposit, and, the bank having failed, the loss falls on the corporation. We are of the opinion that the purpose of the parties in the arrangement of October 1, 1924, was to discharge the liability of the maker of the note, assumed therein, to pay the semiannual installment of interest due October 1, 1924, and to Page 853 substitute the certificate of deposit for that contract obligation. It is clear that the corporation was ready to pay the interest, and had available funds with which to pay it; but, under the decision of the court, rendered two days before, was not only not bound to pay, but, because of the defective title, was unwilling to make direct and absolute payment to defendant. The defendant's inability to comply with its contract was a legitimate reason for the corporation's attitude. This was recognized by the defendant. The corporation might have made a tender and demand. Defendant could not have complied. Thereby he would lose the use of the money. It was thereupon agreed, at defendant's instance, that the interest "be put up in interest-bearing paper, so whoever it fell to or belonged to, and the settlement was finally made so they would be getting some interest on the money held up." Both parties had confidence in the Merchants National Bank, and were willing to accept its certificate. Their thought was to put the $1,500 in such a certificate. Defendant previously had the corporation's obligation to pay interest, but defendant could not comply with the conditions of that obligation, so as to be entitled to the use of the money. He wanted something different. He wanted interest-bearing paper. The parties agreed upon the specific thing, the interest-drawing certificate of deposit in the Merchants National Bank. The purpose of the parties was to put this certificate in the bank in substitution for the obligation of the corporation to pay the interest. If defendant made the title good, that particular thing, the certificate with accrued interest, would belong to him. That particular piece of property was devoted to the payment of the interest, and was to become the property of the defendant when he made the title good. If not, and the deal was thereby thrown up, the certificate would belong to the corporation. The corporation gave its check for the interest. The check was paid. The certificate was made payable to defendant, and was his conditionally on his performance of his contract. Performance of the condition depended on him, not on the corporation. The corporation had fully performed its contract, even to the payment of the interest in the manner suggested by defendant and mutually agreed upon. The corporation's funds available for its immediate withdrawal and use were converted into a time obligation, the right and time of receiving Page 854 which depended on, not the corporation, but defendant. Defendant has never rescinded this arrangement, nor shown ground for rescission. He says that the reason he did not get the certificate before the bank failed was that the corporation required an inventory of the personal property. Whether the corporation was entitled to such inventory, we do not know. Defendant made no objection to the demand, and did not bring down to date or tender his abstract of title. The so-called "escrow" arrangements are quite defective, as a strict escrow. The one of September 17, 1924, provides for delivery on the court's decision, without any reservation in case the decision should be adverse to the title. The agreement of October 1, 1924, provides that the certificate, "being the interest due October 1, 1924," is to be kept on deposit until such time as the $60,000 note and mortgage are released. A memorandum on the envelope provides that it is to be opened only by authority of both parties, — not on compliance with specified conditions. The grantee or obligee in an escrow agreement is entitled to delivery, and becomes the owner, when he has made substantial performance, even though actual delivery to him is not made, but is wrongfully refused.Naylor v. Stene, 96 Minn. 57 (104 N.W. 685); 21 Corpus Juris 881, 889; Val Verde Hotel Co. v. Ross, 30 N.M. 270 (231 P. 702);State Bank of New Salem v. Schultze, 51 N.D. 66 (199 N.W. 138). See Hoyt v. McLagan, 87 Iowa 746; Mohr v. Joslin, 162 Iowa 34. By procuring the quitclaim deeds, the defendant had in fact cured the defect in the title, which was the substantial thing. If the defendant had received the certificate, he could not legally have demanded payment before January first, two months after the bank closed. His claim here is not for damages for the corporation's refusal to permit him to take the certificate. Defendant stresses in argument the indorsement on the envelope containing the certificate, that the envelope was "to be opened only by authority of said administrator and the Monroe Hotel Corporation," — contending that the corporation retained dominion over the certificate. The corporation retained no more dominion than did defendant. That each party might safeguard his interest, it was so provided by the indorsement on the envelope; but, if the defendant had performed his contract, the corporation would have no right to refuse to have it opened and the certificate delivered. Page 855 Defendant leans heavily on Dille v. White, 132 Iowa 327, but in that case it was said: "If this were a case in which, as urged by appellant's counsel, the appellee could fairly be said to have negotiated for the purchase from appellant of checks or drafts which had been drawn by the Citizens' Bank, it could then be conceded that, under the ordinary rule, the delivery of the instruments which were the subject of the negotiation would have served to pass the title, and, in the absence of fraud or misrepresentation by the appellant, the risk of the bank's failure before payment would have been borne by the former. But such is not the case here presented. Appellee was not purchasing or desiring to purchase commercial paper of any kind from the appellant. He was a borrower, seeking a loan of money with which to complete a land purchase. The appellant undertook to lend him the desired sum of money, not to sell him commercial paper or securities. The terms of the loan had been fully agreed upon before anything was said as to the manner or form in which the specified sum should be paid over; and the checks or drafts were given and accepted, not as the money itself, but as a convenient mode of obtaining the money." Bolte v. Schenk, 205 Iowa 834, is also relied on, but is not in point. In Bolte v. Schenk, the purchase money was deposited by the purchaser, to be paid to the numerous vendors upon proper completion of the title papers. One of the vendors "signed a receipt for the purchase price as represented by such certificate." This deposit was made pursuant to a meeting at which none of the vendors was present, but an attorney, " `assuming to represent them, agreed with defendant and his father, who was aiding him in securing the money, and the $21,500 should be deposited in the Bank of Kelso; whereupon the money was taken to that bank, and the following receipt, which had been prepared by F.H. Schwirtz in his office, issued, in duplicate, the money being deposited in the Bank of Kelso by the defendant.'" The bank thereupon made out a certificate of deposit in the usual form, payable to one of the vendors but it was never delivered to her. The district court held: "`There can be no claim that she then accepted this receipt in payment. What she wanted was the money. [What Page 856 defendant wanted here, not being entitled to the money, was interest-bearing paper, recited as "being the interest."] Furthermore, there can be no question that, at the time this receipt was executed by her, October 3d 1922, the bank was insolvent, and there was no money there.'" Here the check was presented. The bank was open, and doing business. It does not appear that the check would not have been paid, if demanded, or if interest-bearing paper other than the certificate of deposit were wanted. It is said in the Bolte case: "The broad contention for the appellant is that the money thus deposited by him was so deposited under and by virtue of an arrangement between him and the alleged agents of Mrs. Bolte and her children. These alleged agents were Joseph Kelso, the principal owner and manager of the bank, and Schwirtz, an attorney, who had been conducting the guardianship proceedings for the incompetent Frederick. The argument is that Schwirtz drew the receipt, which was signed by the bank and delivered to the vendee, and that it was the mutual understanding and intention that the money thus deposited was to be deemed the money of the Boltes. The trial court found the preponderance of the evidence against the vendee on this question of agency. * * * A reading of the record brings us to the same conclusion. It will be noted that the receipt issued by the Kelso Bank to the vendee did not purport to transfer title of the funds to the Boltes. Nor was any authority conferred thereby to pay the same to the Boltes, except upon the conveyance of good title to the farm. While such condition remained unperformed, the depositor retained the title and control of the funds. * * * The fact that the bank signed a formal certificate of deposit purporting to be issued to Mrs. Bolte furnishes little aid to the appellant. Such certificate was, on its face, inconsistent with the receipt held by the appellant. Furthermore, it was wholly ineffective for want of delivery. Though Kelso testified that he showed the certificate to Mrs. Bolte, and was directed by her to retain it, yet the trial court found the fact against such testimony; and we have no doubt of the correctness of such finding, upon this record." There is in the present case no question of agency or of Page 857 authority or of the making of a deliberate agreement. That agreement, in substance, was to discharge the mortgagor's obligation to pay interest by putting the money in this particular interest-bearing security, and depositing that particular thing, with its interest-bearing and postponed date of payment qualities, payable specifically to defendant, specifically deliverable to him with the note and mortgage. The deposit in escrow agreement of October 1, 1924, expressly recites the certificate as "being the interest due October 1, 1924, on the $60,000" note; that the certificate is to be kept on deposit until the $60,000 note and mortgage are released to the administrator. The envelope recites the certificate as subject to escrow agreement. The certificate became a part of the papers, and was to be delivered with them. It was the interest, not an obligation to pay interest, and was to be delivered as the interest, with the note. The interest obligation of the note and mortgage was clearly discharged. Defendant urges that the agreement of April 6, 1925, was a mere gratuity, without consideration. This agreement recites the execution of the $60,000 note and mortgage, covering real and personal property; that the note is payable in twelve annual $5,000 installments, with semi-annual interest, "one of said $5,000 installments being due April 1, 1925, and one $5,000 installment being due April 1, 1926, with interest as stated." The agreement proceeds: "The said Frank H. Gifford, administrator, hereby agrees that upon the payment by mortgagor of said five thousand dollar installment on the principal note due April 1, 1925, and the payment of the five thousand dollar installment due on said principal note on April 1, 1926, together with all interest then due upon said principal note, and the payment of all taxes assessed against said described property and due and payable under the law, and the payment by mortgagor of all insurance premiums on policies of insurance required under said mortgage for the protection of mortgagee, and the deposit in the Citizens National Bank, Grinnell, Iowa, of insurance policies covering the buildings on said described real estate, and the personal property therein in an aggregate amount equaling the indebtedness of mortgagor under said mortgage, and the painting by mortgagor Page 858 of said Monroe Hotel property in the year 1925, upon the payment of each and every of said items and the performance by mortgagor of each and every of said items, the said Frank H. Gifford, administrator, will release of record the lien of said mortgage, which is also filed of record as a chattel mortgage, as to all of the personal or chattel property referred to and described in said mortgage, and upon the payment and performance by mortgagor as aforesaid said personal property and chattels shall stand released of record. "And said second party hereby agrees to make said payments of principal and interest and taxes and insurance premiums and to do said painting and deposit said insurance policies as above stipulated in manner and form heretofore stipulated." Defendant's argument is that the corporation thereby agreed to do no more than it was previously under obligation to do, and that the agreement cannot be construed into a waiver of the interest due October 1, 1924, in controversy. The plaintiff testified that he did the things required by this contract, but that the taxes and the interest that were paid and the painting that was done were paid and done under the contract that preceded that of April 6, 1925; that, when he said the insurance had been kept up, he meant the insurance referred to in the mortgage, and he meant that "the owner of the property had simply performed the things required under the prior contract." As has been said, the prior contract is not in the record. The mortgage required fire insurance in the amount of $54,000 and tornado insurance to the amount of $40,000. The agreement of April 6, 1925, required the deposit of policies equaling the indebtedness under the mortgage. If the $5,000 installment was paid that day, the principal of the indebtedness on the mortgage would still be $55,000, the amount of the insurance which, under the new agreement, would have to be maintained, and more than was required by the mortgage. But, regardless of this, the defendant was originally at fault. It was at his instance that the interest due October 1, 1924, was converted into the certificate of deposit. The contract is in writing, and a consideration is presumed. The burden is on defendant to show the absence of consideration. Consideration may consist in benefit to him or inconvenience or detriment *Page 859 to or waiver by the promisee. There is no evidence that the corporation, in entering into this contract, did not suffer an inconvenience, or did not waive its rights. The contract was a mutual adjustment of the rights of the parties under their previous contracts. See Rowe v. Rowe, 187 Iowa 640. The contract does not, in terms, refer to the interest installment in controversy. The agreement is valid, and has been fully performed by plaintiff. Under it the owner of the personal property is entitled to have the lien of the mortgage thereon released. The plaintiff is now the owner of the property. It is immaterial that he was not a party to the contract. As such owner, he is entitled to maintain this action. — Affirmed. STEVENS, C.J., and De GRAFF and ALBERT, JJ., concur. KINDIG, J., concurs in result. WAGNER, J., not participating.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431253/	The cause was submitted on the pleadings and a stipulation of facts. While none of the facts were disputed certain of them were objected to as irrelevant. It appears therefrom that: Bertha D. Finch, age eighty-eight, died April 10, 1946, a widow without children, natural or adopted, or other Page 1072 lineal descendants, leaving a last will dated April 9, 1942, and a codicil thereto dated December 15, 1945, both of which were admitted to probate on May 7, 1946; that in 1896 Bertha D. Finch, a spinster, married Daniel M. Finch, a widower with two sons, Paul R., born in 1885, and Daniel O., born in 1887, who are his only heirs; that the marriage relation continued until the death of the husband, Daniel M. Finch, age eighty-eight, on December 31, 1945, without issue; that his will bearing date of January 9, 1925, naming Bertha D. Finch as his sole beneficiary thereunder, was probated and administered upon in Polk County, Iowa; that Jesse D. Griffith, John N.D. Griffith, Simon Carey, Hetta Carey Conway, and Dewey Carey were the only nephews and niece of Bertha D. Finch, and the only sons and daughter of her own sisters at the time of the execution of her will; that Dewey Carey died before the testatrix, survived by his only children, Elizabeth Carey Vargas and Belle Carey McClure, who with the said Jesse D. Griffith, John N.D. Griffith, Simon Carey, and Hetta Carey Conway are the residuary devisees and beneficiaries under the will of Bertha D. Finch; that the value of the net estate of the testatrix is approximately $100,000 of which $60,000 represents personalty and $40,000, real assets; and that the testatrix never remarried. Those who are appellants in this court offered in the trial court the court file, Exhibit A, in the estate of Daniel M. Finch. The appellees Paul R. and Daniel O. Finch, while admitting the authenticity of the file, objected to its admission as incompetent, irrelevant, and immaterial to any issue under the pleadings or to the questions of law presented thereby. The same objection was made by them to the offer of Exhibit B, the court file in the estate of Bertha D. Finch, except the pleadings in this proceeding and the will and codicil. It was stipulated, subject to objection, that the relations between Bertha D. Finch and her niece and nephews were always pleasant, cordial, and affectionate, that they frequently visited in the home of the testatrix, and that she and her husband, Daniel, about the year 1942 were guests for two or three weeks in the home of Hetta Carey Conway in California. It was also stipulated, subject to objection, that substantially all of the estate of the testatrix, except the net amount of about Page 1073 $1600, which she received from the estate of her husband, came to her through inheritance from her mother, Mrs. Hetta Dewey. To all of these offers the appellees objected for the reason that such facts were wholly incompetent, irrelevant, and immaterial under the issues, and had no proper place in the record and no bearing upon any questions of law for decision by the court; that the contrary intent which the residuary devisees were undertaking to show to avoid the effect of section 633.16 of the 1946 Code, must, by the terms of the statute, be manifest from the terms of the will, and that surrounding circumstances such as stipulated and offered had no bearing on the issue presented as to whether or not such contrary intent was manifest under the terms of the will, as specified by said statute. It was further stipulated that the proceeding was to be tried and determined as an ordinary proceeding in probate and that the burden was upon the residuary devisees and beneficiaries and that rulings upon objections would be reserved until final decision of the case. The will of the testatrix, after stating the revocation of any prior wills, in substance provides: "1. I give, devise and bequeath to my husband, Daniel M. Finch, his distributive share of my property as provided by the laws of Iowa. "2. I give, devise and bequeath to my great nieces * * * [naming six of them] the sum of $100.00 each. "3. I give, devise and bequeath to Valley Savings Bank, of Des Moines, Iowa, as Trustee all the rest, residue and remainder of my property of every kind and character, whether real, personal or mixed, and wherever situated, for the following purposes: Said Trustee shall take and hold said property, invest and re-invest * * * and do whatever is required for the protection and preservation of the trust property." Paragraphs 4, 5, and 6 provide in substance that the trust shall continue as long as Daniel M. Finch shall live, and terminate at his death, during which period the trustee "shall pay to my husband, Daniel M. Finch, at such times as he shall require, all of the net income from the trust property remaining after the payment of taxes, insurance premiums, and other Page 1074 operating costs of the trust" and "Whenever in the opinion of the trustee * * Daniel M. Finch, shall need any sum in addition to the net income to provide him with a comfortable living, said Trustee shall pay him such additional sums from the principal or corpus of the trust property." Paragraph 7 provides for reports by the trustee to the court. Paragraph 8 provides: "8. At the death of my husband, Daniel M. Finch, all the property in the hands of said Trustee, I give, devise and bequeath to all of my nephews and niece, that is, the sons and daughter of my own sisters then living, to be divided among them share and share alike, and such division shall be made per capita and not per stirpes. In the event that any of my nephews and niece shall not survive me, then the share in my property herein provided for such nephew or niece shall go to the heirs of said nephew or niece." On December 15, 1945 the testatrix executed a codicil to said will providing: "1. My nephew, Dewey Carey, having died since the execution of my said will, it is my will that the devise and bequest of said will to said Dewey Carey, as one of my nephews, shall go to his, the said Dewey Carey's, daughters, to be divided between them equally. "2. All provisions of said will shall remain in full force and effect, except as modified by this codicil." After the probate of the will and codicil and the qualification of the executor, the latter filed an application setting out the provisions of the will, and stating that questions had been raised as to its construction, and asking for an order fixing the time and notice for a hearing thereon. The sons of Daniel M. Finch, deceased, filed an answer admitting the allegations of the application and a cross-petition alleging that they were the only heirs of the devisee, Daniel M. Finch, and under section 633.16, Code, 1946, identical with section 11861, Code of 1939, and under the terms of the will, they were entitled to the property devised to their father in paragraph 1 of the will, in Page 1075 the amounts fixed by the section 636.32, Code, 1946, identical with section 12017, Code, 1939, to wit, the first $7500 of the estate of the testatrix, after payment of debts and expenses of administration, and one half of the remainder of the estate. The residuary devisees and beneficiaries under the will filed answers admitting the allegations of the application of the executor, and also filed cross-petitions thereto and answers to the cross-petition of the heirs of Daniel M. Finch, deceased. These cross-petitions and answers, in substance, allege the stipulated facts, but allege also that it was the intention of the testatrix that the devise to her husband in the first paragraph of the will was contingent upon his surviving her, and that it became a nullity when he predeceased her, and that his heirs did not inherit the devise under Code section 633.16, since a contrary intent was manifest from the terms of her will, and that nothing passed to them under either section 636.5 or section636.32 of the 1946 Code. Paul R. and Daniel O. Finch, by replies, reaffirmed the allegations in their cross-petition to the executor's application and denied all allegations in the cross-petitions and answers of the residuary devisees, contrary thereto. After argument orally and in writing the cause was taken under advisement by the court, and on August 22, 1947 the court entered of record its rulings on evidence, findings of fact, conclusions of law and judgment. It sustained all objections of the sons of Daniel M. Finch to the offers of stipulated facts noted above. It found the facts as stipulated, and as undenied in the pleadings. The court set out eleven propositions in its "Conclusions of Law." We note those of which appellants chiefly complain: 2. Paul R. Finch and Daniel O. Finch are the sole heirs of Daniel M. Finch and as such are entitled to receive the part of the estate of Bertha D. Finch devised to Daniel M. Finch by paragraph 1 of her will under the provisions of section 633.16, Code, 1946, unless from the terms of the will a contrary intent is manifest. The residuary legatees have failed to meet their burden of establishing that such contrary intent was manifest. 6. There is no intent contrary to the provisions of the antilapse statute manifest from the terms of the will of the Page 1076 testatrix. 7. The testatrix intended that her husband should take an unconditional interest in her estate and not under the law of descent and distribution. She used the phrase "distributive share of my property as provided by the laws of Iowa" for the purpose only of measuring the extent of the devise in paragraph 1. It was not intended that the law of descent and distribution was to determine the husband's right to share in her estate because that share was given to him by the will and not by such law. 8. Paul R. and Daniel O. Finch are entitled to inherit, under Code section 633.16, the undivided one-third interest in all of the property of the estate, real and personal. 10. After payment of the debts of decedent, taxes, expenses of administration, the devise of one third of the property of the estate to Paul R. and Daniel O. Finch, and the legacies as directed in paragraph 2 of the will, the residue of the estate shall be payable as follows: one fifth each to Jesse D. Griffith, John N.D. Griffith, Simon Carey, Hetta Carey Conway, and one tenth each to Elizabeth Carey Vargas and Belle Carey McClure. 11. The court costs shall be taxed to the estate. Judgment was entered in accord with conclusions of law. I. Separate briefs and arguments have been filed by the appealing residuary devisees, but since the propositions, briefs and arguments are in general similar, we shall not particularize and will treat them as combined. Errors were assigned on several of the court's conclusions of law, but as stated in the brief and argument of the appellants Griffith, "there is only one question involved in this appeal, and that is whether the will of Bertha D. Finch devised any interest to her husband, who predeceased her, which could pass to his heirs." The appellants have correctly stated and limited the question for determination. It was the judgment of the trial court that the devise in paragraph 1 of the will to the husband of the testatrix passed, under section 633.16, Code, 1946, to the heirs of the devisee — his sons by an earlier marriage, Paul R. Finch and Daniel O. Finch. We agree with the trial court. Code section 633.16 provides: "If a devisee die before the testator, his heirs shall inherit Page 1077 the property devised to him, unless from the terms of the will a contrary intent is manifest." As noted above, it was stipulated that the burden was upon the residuary devisees, the appellants, to establish that such a contrary intent was manifest from the terms of the will. Appellants state their burden thus: "Appellants' contention that the devise in paragraph 1 of the will lapsed on the predecease of the devisee is based on the intent of the testatrix as manifest by the terms of the will, which must be ascertained therefrom without addition to or modification of the language employed by testatrix to express her intent. Language in the will must be construed according to its plain meaning and legal import, without consideration of extrinsic evidence on the question of intent. Under the antilapse statute, the test is not the quantum of the estate involved in a devise nor the effect of the statute not in controversy. In construing a devise, the paramount question is what was the intent of the testator as shown by the terms of the will? In theinstant case, the only devise under which the heirs of Daniel M.Finch make claim is the devise made in paragraph 1 of the will,and this is the devise whose terms are to be judiciallyconstrued. The intent of testatrix as disclosed by the will, which may be express or implied, is controlling." (Italics supplied.) [1] With reference to the italicized sentence just above, we agree that the appellees claim only such property as is devised in paragraph 1, and that its terms are to be judicially construed, but we think the appellants have erred in seeking the intent of the testatrix only in that paragraph, and slighting the other paragraphs which gave property to the husband in addition to "his distributive share" devised in paragraph 1. For reversal of the judgment, appellants chiefly rely upon Tennant v. Smith, 173 Iowa 264, 155 N.W. 267, and Herring v. Herring, 187 Iowa 593, 174 N.W. 364. They say: "The rule which is controlling in the instant case was established in 1915 in Tennant v. Smith * . Since the decision in the Tennant case is decisive of the present controversy, the Page 1078 vital portion of the court's opinion is quoted * * . This court's salutary opinion in the Tennant case is a complete and effectual denial of the correctness of the trial court's judgment that the devise in controversy did not lapse and that the heirs of the predeceased devisee are entitled to inherit one third of the estate of testatrix. * * Another case in which the rule established and applied in the Tennant case is fully and clearly set forth is Herring v. Herring 187 Iowa 593. * * * The rule established in the Tennant case controls the present controversy. The rule set forth in the Herring case is identical with the rule applied in the Tennant case." In the Tennant case the bequest from the wife to her husband which was in litigation was: "`I give and bequeath to my husband, Jonathan Duncan, such share of my estate as he is entitled to have and receive under the laws of the state of Iowa.'" In the Herring case the bequest involved was: "`I give, and bequeath to my husband, Peter Rohret, all that share or part of my estate, real, personal and mixed, which would go to him under the statute of distribution of this state, if I should die intestate, neither desiring to increase nor curtail his said distributive share or interest in my estate, but intending to leave him to take just so much as the law gives to a surviving husband in cases of intestacy.'" In each of the cases noted the husband was willed no property or benefits other than that bequeathed in the quoted provisions. The property bequeathed in each provision was exactly, both in quantity and quality, what each husband would have received had his wife died intestate. In each case, as said in In re Estate of Warren, 211 Iowa 940, 944, 234 N.W. 835, 837: "* * * the estate would pass, not under the will, but under the `worthier title' by descent; and that the devise and bequest is a nullity, ineffective, and void. [Citing authorities.] * * * In 6 Greenleaf's Cruise on Real Property, Title 38, Chapter 8, Section 2, the author states: Page 1079 "`With respect to the first sort of devises that are void abinitio, it is a rule of law that, where a testator makes the samedisposition of his estate as the law would have done, if he had been silent, the will, being unnecessary, is void.' * * "In Wheeler v. Loesch, 51 Ind. App. 262 (99 N.E. 502), we find the following pronouncement: "`So a will which makes no other disposition of property than the law would make is a nullity, and not subject to contest.'" All parties hereto concede, and the trial court found, that the worthier-title rule has no application to the case before us. The rule was applied in the Tennant case and in the Herring case. Because they were worthier-title cases, what was stated and found therein has no application in this case. Appellants in a reply argument state: "In the Tennant and Herring cases, this court held that the terms of the devise in each case manifested an intent that in case of the predecease of the devisee, the devise should lapse." There is no doubt that the court so held in each case. But such holding in those cases does not help the appellants in the case at bar. The fact that this court so held in those cases is not important, but the reason for such holding is important. Appellants do not mention the reason. It is clear from the opinion in the Herring case that the reason the devises in that case and in the Tennant case were held to manifest an intent contrary to the antilapse statute was that the devise in each case was identical with what the devisee would have taken by descent. They were worthier-title cases. The court through EVANS, J., in the Herring case said at pages 595, 596 of 187 Iowa, page 365 of 174 N.W.: "We think our holding in that case [Tennant v. Smith] is quite determinative of this * * . Do the terms of the devise under consideration herein permit the heirs of the predeceased devisee to take the devise, or do they manifest a `contrary intent?' We think it clear from the terms of this devise that the testatrixintended to add nothing to the legal rights of the devisee." (Italics supplied.) That the reason for holding the devises in the Tennant and Page 1080 Herring cases in themselves indicated an intent contrary to the antilapse statute was the identity in the devises and what the devisees would have taken under the statutes of descent and distribution, also clearly appears in the opinion in In re Estate of Davis, 204 Iowa 1231, 1233, 1234, 213 N.W. 395, 396, where the court, through EVANS, C.J., said: "In the Tennant case we first applied the foregoing rule [worthier-title] to a devise by one spouse to another. Such application of the rule was followed in the Herring case. * * * In order to bring the case within this rule, it is essential that the provision for the surviving spouse under the will should be identical in quantity and quality with the statutory provision to the same end. If such respective provisions be identical in the given case, then the beneficiary would be deemed to take under the statute, as conferring the `worthier title,' and the provision of the will would be deemed nugatory or canceled thereby. Such identity of provision is deemed sufficient evidenceof an intent on the part of a testator that the devise shouldlapse if the spouse should predecease him." (Italics supplied.) It is this "identity of provision" in the terms of the will which makes manifest the "contrary intent" stated in the antilapse statute. The same thought was repeated by WAGNER, J., in In re Estate of Warren, supra, 211 Iowa 940, 949, 234 N.W. 835, 839, in speaking of the devisee: "Her rights in the property under the will were at all times identical with her rights under the law. As said in In re Estate of Davis, 204 Iowa 1231: `Such identity of provision is deemed sufficient evidence of an intent on the part of a testator that the devise should lapse if the spouse [mother] should predecease him.'" Following the italicized quotation above noted in In re Estate of Davis, the opinion continues: "The question presented was last before us in In re Will of Watenpaugh, 192 Iowa 1178." After quoting the devises in the Tennant and Herring cases, the opinion states: "We construed each of the foregoing provisions as being identical with the statutory provisions, and that it awarded to Page 1081 the devisee neither more nor less than he was entitled to under the statute, and that the devise lapsed upon the death of the devisee before that of the testator. In the Watenpaugh case the testator devised to his wife property greater in quantity and substantially different in quality than she would have taken under the statute. We held the rule contended for as notapplicable, and that the devise did not lapse. "In the case before us there is no provision in the will which indicates any intent that the devise should lapse in the event of the death of the devisee before that of the testator, unless itcan be said that the testamentary provision in her behalf and thestatutory provisions are identical. The district court held that they were not identical, and awarded the devise to the heir of Sarah [the predeceased devisee and wife of the testator]." (Italics supplied.) This court held that the decisions in the Tenant case and the Herring case did not rule the case before it, since the worthier-title doctrine was the controlling factor in each of said cases, and had no application in the Davis case where there was lack of identity between the devise and the heritable estate. The decision in In re Will of Watenpaugh, 192 Iowa 1178, 186 N.W. 198, was followed; and the judgment in the Davis case, that the devise did not lapse, was affirmed. In the case before us the devise in paragraph 1 of the will designated the gift as the devisee's distributive share under the laws of Iowa, but decidedly unlike those cases (Tennant and Herring), Bertha D. Finch, in addition to the devise in paragraph 1 of what would have been her husband's distributive portion had she died intestate, directed her trustee to pay to her husband the income from the residue of her estate during his life, with additional payments from the corpus of the trust if his needs required them. There was no identity in quantity or quality in the testamentary disposition to him and what he would have received under the statutes of descent and distribution had she left no will. The testamentary disposition in In re Will of Watenpaugh, supra, 192 Iowa 1178, 1179, 1182, 186 N.W. 198, 199, was quite similar to that of Mrs. Finch. In the cited case the Page 1082 testator in item 2 of his will gave to his wife in lieu of her dower and distributive share, "`an equal undivided one third of all the property both real and personal of which I may die seized or possessed, to have and to hold the same to her, her heirs, personal representatives and assigns forever.'" In addition thereto, in item 4 of his will he gave her the income from the remaining two thirds of his estate during her life and widowhood. After discussing Tennant v. Smith and Herring v. Herring, both supra, and McAllister v. McAllister, 183 Iowa 245, 167 N.W. 78, in affirming the decree of the trial court holding that the devise of one third of the estate to the wife did not lapse but passed to her heirs, the court, by FAVILLE, J., said: "It is apparent that, in the Tennant case and in the Herring case, the bequest was expressly limited to the exact amount which the beneficiary would have received under the laws of descent. The language of the bequest in each case expressly provides, in effect, that it is the intention to bequeath the identical share provided by the statutes of the state. In the instant case,however, we find more in the will than in either of the wills inthe cited cases. This will, like all other wills, must be construed in its entirety, and when so construed, we find that, in addition to the second item of the will, under the fourth item of the will the testator gives to his wife the use of the undivided two thirds of all his real and personal property during her natural life, or so long as she should remain his widow. Had the widow survived her husband, she would have taken an undivided one third of all of his property, and, in addition thereto, she would have taken the use of the remaining two thirds of his property for the term of her natural life, or during her widowhood." (Italics ours.) In the Herring case the court found the identity of provision was sufficient evidence of contrary intent on the part of the testatrix, while in the Davis case the court found lack of identity and also lack of a contrary intent. Justice EVANS wrote both opinions. In the Watenpaugh case, quite on "all fours" with the one on appeal, the court found lack of identity in the Page 1083 devise and the statutory share, and necessarily found there was no "contrary intent manifest" by the terms of the will. In the later decisions of this court the fact is stressed that the "contrary intent" found in the Tennant case and in the Herring case was based upon the identity of the devise and the distributive share in each case. In In re Estate of Schroeder,228 Iowa 1198, 1206, 293 N.W. 492, 496, we said: "However, the rule in reference to the `worthier title', which we applied in each of those cases, was applicable only because the devise was exactly the same as the distributive share of the spouse." (Italics supplied.) In In re Estate of Everett, 238 Iowa 564, 567, 28 N.W.2d 21, 22, speaking through GARFIELD, J., the court said: "We have said the fact that the will makes the identical provision for the spouse or heir the law makes in event of intestacy is deemed sufficient evidence of the testator's intent that the devise should lapse if the beneficiary predecease him. [Citing the Tennant, Herring, and Warren cases, all supra.] * * The rule of such decisions does not apply unless the provision of the will is identical in quantity and quality with the statutory provision to the same end." Citing In re Will of Watenpaugh, In re Estate of Davis, both supra; Wehrman v. Farmers Merchants Sav. Bk., 221 Iowa 249, 254, 259 N.W. 564; In re Estate of Sheeler, 226 Iowa 650, 663, 284 N.W. 799. [2] Under the decisions of this court the devises in controversy in the Tennant and Herring cases were ineffective and of no validity. Such a devise in In re Estate of Warren, supra,211 Iowa 940, 949, 234 N.W. 835, 839, was said to have been "at all times void, ineffective, and a nullity." Had the devisee in the Tennant case or the Herring case survived the testator he would have taken the property devised, not under the will, but under the statute. It cannot be said that the devise in paragraph 1 of the Bertha D. Finch will was "nugatory or canceled" in the language of the Davis case, supra. And the appellants concede that had Daniel M. Finch survived the testatrix he would have taken the property under Page 1084 the will, and not under the statutes of descent and distribution. In discussing the antilapse statute, it was said in In re Estate of Hulett, 121 Iowa 423, 425, 96 N.W. 952, 953, and repeated in McAllister v. McAllister, supra, 183 Iowa 245, 248, 167 N.W. 78; In re Will of Watenpaugh, supra, 192 Iowa 1178, 1180, 186 N.W. 198; In re Estate of Mikkelsen, 202 Iowa 842, 844, 211 N.W. 254, and in Jensen v. Nelson, 236 Iowa 569, 576,19 N.W.2d 596, that it was enacted "so as to preserve the devise to a greater or less extent for the benefit of persons who would presumably have enjoyed the benefits of such devise had the devisee survived the death of the testator and died immediately afterward." The judgment of the trial court in this case in holding that the devise did not lapse but passed to the sons of the devisee effected a result in full accord with the purpose of the statute. It must be presumed that the testatrix had knowledge of the statute when she made her will, and knew that if she survived her husband the property devised would pass to his heirs — presumably the two boys who came under her care when she married their father — unless she manifested a contrary intent by her will. Downing v. Nicholson, 115 Iowa 493, 497, 88 N.W. 1064, 91 Am. St. Rep. 175; In re Estate of Everett, 238 Iowa 564, 569, 28 N.W.2d 21, 23; Mason v. Mason, 194 Iowa 504, 511, 188 N.W. 685; In re Estate of Schroeder, 228 Iowa 1198, 1207, 293 N.W. 492. She made no such express manifestation in her will, and we find none by implication or inference. She died on the hundredth day after her husband's death and yet she made no change in her will with respect to paragraph 1 thereof. As said in In re Estate of Davis, supra, 204 Iowa 1231, 1236, 213 N.W. 395, 396: "It were simple to have made the devise to the wife conditional upon her survival, if such were the intent. It were likewise simple to have added a brief codicil to the will after her death, if such were necessary to express the final intention of the testator. Sufficient to say that the decree of the district court was obedient to the terms of the will." Page 1085 See, also, like language in In re Estate of Everett and In re Estate of Schroeder, both supra. Approximately two weeks before her husband's death she executed the codicil to her will and said therein, "All provisions of said will shall remain in full force and effect, except as modified by this codicil." The antilapse statute has been a part of the Code of 1851 and all succeeding Codes. Its purpose was to end the common-law rule that a devise to one whose death occurred before the death of the testator lapses. The courts of the state have consistently given the statute a broad and liberal construction to effect that purpose. Downing v. Nicholson, supra, 115 Iowa 493, 495-497, 88 N.W. 1064, 91 Am. St. Rep. 175. If the testatrix had intended to nullify the devise to her husband in the event he died before her death she could have added to the devise the words "if he survives me." This court in refusing to add these words in Mason v. Mason, supra, 194 Iowa 504, 507, 188 N.W. 685, 686, said: "This, we think, we are not authorized to do. We may construe a will, but we cannot properly assume to make one for the testatrix, or to insert therein conditions not fairly expressed by herself." The trial court was right in holding that the appellants had failed to carry the burden incumbent upon them that the will by its terms manifested an intent that the devise in paragraph 1 of the will should lapse in the event the devisee therein died before the testatrix. [3] II. The heirs of Daniel M. Finch contend that the statement made in the Tennant and Herring cases, that a contrary intent was manifest in the will involved in each, was dictum. We do not agree with the contention. The question of "contrary intent" is always an issue when the antilapse statute is involved. It was involved in each of the cases. The court simply held that the identity of the devise and the distributive share was sufficient evidence of such intent. In the Herring case, 187 Iowa 593, 594, 174 N.W. 364, the court stated both issues, to wit, "The argument, therefore, has two phases: (1) Was the devise a nullity from the beginning? (2) Did the will, by its terms, evince the intention that, in Page 1086 the event of the death of Peter before the testatrix, the devise should lapse?" The court answered both questions, but held that the affirmative answer to the first was sufficient evidence that the answer to the second must be affirmative. What was said was not a mere opinion of its writer, but was the adjudication of the court on a point within the issues. " * * where a case presents two or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case is an authoritative precedent as to every point decided, and none of such points can be regarded as having merely the status of a dictum." 21 C.J.S., Courts, 309, 315, section 190. See, also, State ex rel. Bailey v. Brookhart, 113 Iowa 250, 256, 257, 84 N.W. 1064; Perfection Tire Rubber Co. v. Kellogg-Mackay Equipment Co., 194 Iowa 523, 530, 187 N.W. 32; Galvin v. Citizens Bank, 217 Iowa 494, 498, 250 N.W. 729; Waddell v. Board of Directors, 190 Iowa 400, 402, 175 N.W. 65. [4] III. Appellants assign error because the court sustained objections to their offer of certain parts of the fact stipulation. The assignment is without merit. The facts that the residuary legatees were related by consanguinity to the testatrix and her relations with them were cordial and that the bulk of her estate came from her mother and not from her husband carry no weight in the determination of the case. As said in In re Estate of Everett, supra, 238 Iowa 564, 569, 28 N.W.2d 21, 23: "The `contrary intent' to which section 633.16 refers must be manifest `from the terms of the will.'" To the same effect see In re Estate of Davis, supra, 204 Iowa 1231, 1236, 213 N.W. 395, 396, and In re Estate of Schroeder, supra, 228 Iowa 1198, 1207, 1208, 293 N.W. 492. In the Davis case the court said in a like situation: "But speculations of that kind are not permissible to the courts. The language of the will must be their sole guide." [5] IV. Paul R. Finch and Daniel O. Finch, as cross-appellants, challenge the judgment of the district court because it limits the amount which they inherit to a one-third interest in all the property of the estate, as provided in section 636.5, Page 1087 Code, 1946, instead of awarding them the first $7500 of the estate, after payment of the debts of the decedent and the administration expense, and one half of the residue above $7500, as provided in section 636.32, Code, 1946. Section 636.5 is as follows: "Dower. One-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage, which have not been sold on execution or other judicial sale, and to which the wife had made no relinquishment of her right, shall be set apart as her property in fee simple, if she survive him. The same share of the realestate of a deceased wife shall be set apart to the survivinghusband. [C51, §§ 1394, 1421; R60, § 2477; C73, § 2440; C97, § 3366; C24, 27, 31, 35, § 11990]" (Italics supplied.) Section 636.32 is: "Absence of issue. If the intestate leaves no issue, the whole of the estate to the amount of seventy-five hundred dollars, after the payment of the debts and expenses of administration, and one-half of all of the estate in excess of said seventy-five hundred dollars shall go to the surviving spouse and the other one-half of said excess shall go to the parents. * . [C51, § 1410; R60, § 2495; C73, § 2455; C97, § 3379, S13, §§ 3379, 3381-a; C24, 27, 31, 35, 39, § 12017]" Section 636.1, Code, 1946, provides that "the personal property of the deceased not necessary for the payment of debts, nor otherwise disposed of, shall be distributed to the same persons and in the same proportions as though it were real estate." Section 636.7 provides that "the distributive share of the survivor shall be set off so as to include the ordinary dwelling house * . [C51, § 1395; R60, § 2426; C73, § 2441; C97, § 3367; C24, 27, 31, 35, 39, § 11992]" (Italics supplied.) Cross-appellants rely chiefly upon Marvick v. Donhowe, 191 Iowa 214, 215, 182 N.W. 182, 183, a suit in equity to construe the will of S.H. Marvick. He was survived by his widow and no issue. The widow was the plaintiff, and the defendants were nieces and nephews of the testator. Marvick Page 1088 devised to his wife "`that part of my estate which the laws of Iowa provide for a wife's equity.'" He also gave to her the income of the residue of the estate during her life or widowhood. The antilapse statute was not involved. The trial court construed the will as entitling the widow to an amount equal to what she would have received under section 3379, Code Supplement, 1913, had her husband left no will. In affirming this holding of the court, this court said: "The two propositions submitted to this court on this appeal are: (1) What did the widow take, under the language of the will that she should have `that part of my estate which the laws of Iowa provide for a wife's equity?' (2) * * * "He [testator] was unacquainted with the technical statutory provisions (which he was presumed to know) governing a case like his own, but he did know that the laws of Iowa made some provision for a surviving spouse, and, with this uncertain information, and being a long distance from home and away from his legal and other confidential advisers [he drew this holographic will]. * * * "What do the laws of Iowa provide under such circumstances? "Section 3366 of the Code gives to the surviving widow, as herdistributive share, one third in value in fee of all the legal and equitable estates of which the husband died seized; and, in the event that the husband leaves no issue, section 3379 of the Supplement to the Code, 1913, gives to the widow $7500, after the payment of the debts and expenses of administration, and one half of all the estate in excess of said amount. (Italics supplied.) "The law favors such a construction of a will as most nearly conforms to the statutory rule of descent and distribution. Applying this presumption in the instant case, if there is any doubt or uncertainty as to what portion of the testator's estate he intended to give his wife, we must resolve that doubt in her favor, and give her all to which she would have been entitled, had the husband died intestate. See Ellsworth College v. Carleton, 178 Iowa 845. * * * Page 1089 "The ruling of the trial court in construing the instant will in this particular is correct." See, also, Murdoch v. Bilderback, 125 Mich. 45, 83 N.W. 1007, cited in the opinion. The phraseology of the devise was that of a layman and not in the language of the statute, yet his intention was clear. The judgment of the court was a logical and reasonable determination of that intent. But the decision falls short of sustaining the contention of the cross-appellants. The opinion, on its face, in stating that Code section 3366 gave to the surviving widow "as her distributive share, one third in value" of the husband's estate, definitely indicates that had the will devised her such share, as does the Finch will, the court would have construed the devise as giving to her but one third of the estate. Cross-appellants also cite In re Estate of of Schroeder, supra,228 Iowa 1198, 1206, 293 N.W. 492, which they state "appears" to pass on the question. This is an overstatement. In that case the testator devised all his estate not needed to pay his debts and administration expense to his wife, who predeceased him. We held that the decree exceeded what she would have received under the statutes of distribution had he died prior to her death leaving no will, and affirmed a judgment awarding the devise to her heirs. We said that if her husband had died intestate and she had survived him she would have received under section 12017, Code, 1935, the first $7500 and one half the excess. That was merely a statement of what the section provided. It was not an adjudication, and, of course, the statute needed no adjudication. The decision in the case is of no aid to the cross-appellants. The devise in each of the cases relied upon by them is entirely different from the testamentary disposition under consideration. In the instant case the testatrix designated the devise to her husband in paragraph 1 of the will as "his distributive share of my property as provided by the laws of Iowa." The words are plain and simple. The only matter for determination is, What is such "distributive share?" The cross-appellees (residuary devisees) say that it is the one third under Page 1090 section 636.5, Code, 1946 (section 11990, Code, 1939). The cross-appellants (heirs of Daniel M. Finch) say it is the $7500 and half the excess under section 636.32, Code, 1946 (section 12017, Code, 1939). The cross-appellants have offered little to sustain their contention. We agree with the statement of the cross-appellees that "a `distributive share' of a [surviving] spouse is a legal phrase of definite and ascertainable meaning, employed time and time again in the statutes of this state to describe the surviving spouse's one third or `dower' interest, familiar to all judges and members of the bar, appearing repeatedly in the opinions of this court, the digests of its decisions, and the textbooks on probate law." The term is not expressly defined in the statutes of the state but its repeated use in all of the Codes leaves no question or doubt as to its meaning. It has never been used to designate the share or interest passing under said section 636.32 or under any of its predecessor sections. Section 636.5, Code, 1946, is in substance the same as it appeared in section 1394 of the Code of 1851, and successively in all the later Codes. It was in section 2440 of the Code of 1873 that the estates of dower and curtesy were expressly abolished. As Justice BECK said in Mock v. Watson,41 Iowa 241, 243, 244: "Our statute expressly abolishes the estate of dower, and creates another estate to take its place. Code, § 2440. For the newly created estate the legislature has supplied no name. The widow takes `one-third in value' * * . Though no name be given this estate, the profession, finding it inconvenient to speak or write about a thing without a name, will discover a fit term by which to designate it. * * Whatever effect the legislation abolishing the estate [dower] may have * * * it is quite certain that the use of the word will not be dispensed with." Evidence that the eminent Justice was also a true prophet appears from the repeated use of the word "dower" in the section catchwords in the chapter (636) on "Descent and Distribution" in the 1946 Code. But in section 2441, Code, 1873 (section 636.7, Code, 1946) Page 1091 the new estate was given a name by the words "the distributive share of the survivor shall be set off" to include the dwelling house given by law to the homestead. In Smith v. Zuckmeyer,53 Iowa 14, 16, 17, 3 N.W. 782, 784, the court said: "Sec. 2455 [Code, 1873, section 636.32, Code, 1946]: `If the intestate leave no issue, the one-half of his estate shall go to his parents and the other half to his wife.' * * In Burns v. Keas, 21 Iowa 257, it was held that upon the death of the wife, without issue, the husband is entitled to but one-half of her entire estate, for dower and as heir at law. That case arose under section 2495 of the Revision of 1860, which was identical with section 2455 of the Code. The effect of the rule is that in determining the share of the husband under section 2455 theone-third or distributive share, or dower interest, must first betaken out, and to that must be added such a fraction of theresidue as would make one-half, which would be one-sixth. It would seem that the `distributive share,' or `widow's share,' is plainly described in sections 2440 and 2441, as the one-third. But if this were not enough the other provisions of the statute indicate that one-third is such share. The widow holds the one-third exempt from the debts of the husband. * * * Her right to one-third cannot be affected by any will of the husband. Code, section 2452. It shall be so set off as to include the ordinary dwelling house * * . Section 2441. It attaches to all real estate of the husband possessed at any time during marriage * . Section 2440. These and other characteristics of the `widow's share' are applicable to the one-third of the estate and no more. All, excepting this one-third, the husband can dispose of by will, and it is liable for his debts, and the debts of the wife, without being set off and assigned to her. Whatever is inheritedover and above one-third is taken and held as an heir at lawunder section 2455." (Italics supplied.) Before section 3379, Code of 1897 was amended by chapter 280, section 1 of the Thirty-fifth General Assembly as it now appears in the first sentence of section 636.32 of the Code of 1946, the surviving spouse took one half of the estate of the deceased spouse, dying without issue. In construing said section Page 1092 3379 the court in Monroe v. Servis, 179 Iowa 583, 585, 586, 161 N.W. 653, 655 (EVANS, J.), said: "The one-half interest awarded under the statute to the widow in the absence of issue is intended to include her one-third distributive share. Her legal distributive share, however, remains one third, as before. The additional one sixth which she takes under the provisions of Section 3379, Code, 1897, she takes as an heir, and not otherwise. If the decedent had died testate, she would take such additional interest subject to the will; she takes it subject to the debts of the decedent, and likewise subject to his contracts." (Citing cases.) For other decisions of this court pointing out the differences and distinctions between dower and curtesy of the surviving spouse, and the "distributive share" of the surviving spouse under section 636.5, Code of 1946 and its predecessor sections in earlier Codes, and the share which passes to the surviving spouse under the conditions designated in section 636.32, Code of 1946 and its predecessor sections, see Burns v. Keas, 21 Iowa 257; Linton v. Crosby, 54 Iowa 478, 6 N.W. 726; Ruppin v. McLachlan,122 Iowa 343, 347, 98 N.W. 153; Hays v. Marsh, 123 Iowa 81, 85, 98 N.W. 604; In re Estate of Noble, 194 Iowa 733, 735, 190 N.W. 511, 26 A.L.R. 86; Schultz v. Schultz, 183 Iowa 920, 167 N.W. 674; Wilcke v. Wilcke, 102 Iowa 173, 183, 71 N.W. 201; Kuhn v. Kuhn, 125 Iowa 449, 454, 101 N.W. 151, 2 Ann. Cas. 657; Boyles v. Cora, 232 Iowa 822, 847, 6 N.W.2d 401; Phillips v. Carpenter,79 Iowa 600, 44 N.W. 898; Wright v. Breckenridge, 125 Iowa 197, 201, 101 N.W. 111; Purcell v. Lang, 97 Iowa 610, 66 N.W. 887; Ditson v. Ditson, 85 Iowa 276, 52 N.W. 203; Ward v. Wolf, 56 Iowa 465, 9 N.W. 348. Under the whole record it appears to the court that the testatrix used and intended to use the term "distributive share" in the sense in which it has uniformly been used in the statutes and by this court, as meaning the one-third share passing to the surviving spouse under section 636.5 of the 1946 Code, identical with section 11990 of the 1939 Code in effect at the time she executed her will. The trial court was right in so holding. The motion of the appellants and the cross-appellees to *Page 1093 strike a part of the Reply Brief and Argument of the appellees and cross-appellants which was submitted with the appeal is denied. The judgment of the district court is affirmed on each appeal. The costs are taxed to the estate. — Affirmed. All JUSTICES concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/4261029/	17-1881-cv Jaffer v. Hirji In the United States Court of Appeals For the Second Circuit AUGUST TERM, 2017 SUBMITTED: JANUARY 24, 2018 DECIDED: APRIL 4, 2018 17‐1881‐cv LATIFA JAFFER, AHMED M. HIRJI, SHEHZAD HIRJI, AND HUSSEIN JAFFER, Plaintiffs‐Counter‐Defendants‐ Appellants, v. NAUSHAD M. HIRJI AND SABIRA HIRJI, Defendants‐Counter‐Claimants‐ Appellees. ________ Appeal from the United States District Court for the Southern District of New York. No. 14-CV-2127 – Kenneth M. Karas, District Judge. ________ Before: Leval, Calabresi, Cabranes, Circuit Judges. ________ 1 Plaintiffs‐Counter‐Defendants‐Appellants, Latifa Jaffer, Ahmed M. Hirji, Shehzad Hirji, and Hussein Jaffer appeal from the May 18, 2017 judgment of the United States District Court for the Southern District of New York (Karas, J.) granting summary judgment in favor of Defendants‐Counter‐Claimants‐ Appellees. We vacate and remand that judgment. Judge Cabranes dissents in a separate opinion. Costantino Fragale, Esq., Maker, Fragale & Di Costanzo, LLP, Rye, NY, for Plaintiffs‐Counter‐Defendants‐ Appellants Andrew D. Brodnick, Esq., Rye Brook, NY, for Defendants‐Counter‐ Claimants‐Appellees CALABRESI, Circuit Judge: Plaintiffs‐Counter‐Defendants‐Appellants Latifa Jaffer, Ahmed M. Hirji, Shehzad Hirji, and Hussein Jaffer (jointly, “Plaintiffs”) appeal from the October 27, 2015 order and May 18, 2017 judgment of the District Court in favor of Defendants‐Counter‐ Claimants‐Appellees Naushad M. Hirji and Sabira Hirji (jointly, “Defendants”). Plaintiffs argue that the District Court erred by granting judgment on the pleadings against their adverse possession claim and by granting summary judgment in favor of Defendants on Plaintiffs’ constructive trust claim. Upon review, we agree with the District Court with respect to the adverse possession claim and affirm that ruling. With regard to the constructive trust claim, we disagree with the District Court and vacate and remand that ruling. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 2 BACKGROUND This case involves an intra‐family dispute over who owns a residential house in Hartsdale, New York (“the Property”). In 1982, the now‐deceased Mohamed Hirji (“Mohamed”) purchased the Property, and put the title in the names of two of his sons: Plaintiff Ahmed Hirji (“Ahmed”) and non‐party Mustafa Hirji. According to the attorney who represented Mohamed at the purchase, Mohamed intended the Property to be “a place that the family could reside in.” App. at 58. In 1989, Plaintiff Ahmed and Mustafa transferred the title to their father Mohamed and their brother, Defendant Naushad Hirji (“Naushad”), as joint tenants with the right of survivorship. Mohamed and Defendant Naushad paid no consideration. Mohamed died in 1998, and his interest in the Property devolved to Defendant Naushad. In 2001, Defendant Naushad deeded the Property to himself and his wife, Defendant Sabira Hirji. Defendants currently possess title to the Property, but live in Tanzania. Defendant Naushad testified that he never spoke to the attorney who prepared the deeds in 1989 and 2001. During this whole period, Defendant Naushad visited the Property only once and never hired anyone to inspect it. Plaintiffs Ahmed, Shehzad Hirji (son of Ahmed), Latifa Jaffer (daughter of Mohamed, sister of Ahmed), and Hussein Jaffer (husband of Latifa) now reside at the Property, where they all (except Shehzad) have lived since 1984. Between 1984 and 3 2013, Plaintiffs maintained and made capital improvements on the Property, paid all subject property taxes, and never remitted rent payments to Defendants. In January 2014, Defendants issued a Notice of Termination to Plaintiffs requiring them to vacate the Property on or before February 28, 2014. Three days before they were required to vacate, Plaintiffs commenced the instant litigation. In their amended complaint, Plaintiffs claimed that (1) Defendant Naushad holds the legal title to the Property in constructive trust for the benefit of the Plaintiffs, and (2) Plaintiffs acquired title to the Property by adverse possession. The District Court granted judgment on the pleadings against the adverse possession claim under Federal Rule of Civil Procedure 12(c). The District Court subsequently granted summary judgment to Defendants on the remaining constructive trust claim. This appeal followed. DISCUSSION We review de novo the award of summary judgment, “constru[ing] the evidence in the light most favorable to the [nonmoving party]” and “drawing all reasonable inferences and resolving all ambiguities in [its] favor.” Darnell v. Pineiro, 849 F.3d 17, 22 (2d Cir. 2017) (internal quotation marks omitted). Summary judgment is appropriate only where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party bears the initial burden of showing that there is no genuine dispute as to a material fact.” 4 CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (internal quotation marks and alteration omitted). But where “the burden of proof at trial would fall on the nonmoving party,” the moving party can shift the initial burden by “point[ing] to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim.” Simsbury‐Avon Pres. Soc’y, LLC v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009). We also review de novo the grant of a motion for judgment on the pleadings, “accept[ing] all factual allegations in the complaint as true and draw[ing] all reasonable inferences in plaintiffs’ favor.” Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010) (internal quotation marks and alteration omitted). “To survive a Rule 12(c) motion, the complaint must contain sufficient factual matter to ‘state a claim to relief that is plausible on its face.’” Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). On both substantive claims we apply New York law. See Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994). Constructive Trust Claim. The District Court improperly granted summary judgment to Defendants on the constructive trust claim. “A constructive trust is an equitable remedy and its purpose is to prevent unjust enrichment.” Henning v. Henning, 962 N.Y.S.2d 189, 192 (N.Y. App. Div. 2013). Under New York law, “a constructive trust is only imposed upon a finding of ‘(1) a 5 confidential or fiduciary relation, (2) a promise, express or implied, (3) a transfer made in reliance on that promise, and (4) unjust enrichment.’” Consumers Union of U.S., Inc. v. State, 840 N.E.2d 68, 78 n.14 (N.Y. 2005) (quoting Bankers Sec. Life Ins. Soc’y v. Shakerdge, 406 N.E.2d 440, 440 (N.Y. 1980)). The parties do not debate that the facts satisfy the first prong of the test. Instead, the case turns primarily on the second factor, on which, given the alleged facts, the third and fourth prong depend. “Even without an express promise, however, courts of equity have imposed a constructive trust upon property transferred in reliance upon a confidential relationship.” Sharp v. Kosmalski, 351 N.E.2d 721, 723 (N.Y. 1976). In Sharp, and also in Sinclair v. Purdy, 139 N.E. 255 (N.Y. 1923), the New York Court of Appeals found that a constructive trust existed in favor of a party who transferred property to another in reliance upon a confidential relationship. In both cases, it did so in the absence of any express promise. In the first case, Sharp, the Court of Appeals found a constructive trust to exist for a farmer who transferred his farm and home to a woman he hoped to marry. It did so because “it is inconceivable that plaintiff would convey all of his interest in property which was not only his abode but the very means of his livelihood without at least tacit consent upon the part of the defendant that she would permit him to continue to live on and operate the farm.” 351 N.E.2d at 724. 6 In the second case, Sinclair, the Court of Appeals did the same for a state court clerk who transferred his interest in a property to his sister allegedly because he thought that limiting his assets would discourage criminal defendants from asking him to post bail for them. 139 N.E. at 255. The Court of Appeals found the trust because “[h]ere was a man transferring to his sister the only property he had in the world . . . in reliance upon her honor” and because “[e]ven if we were to accept her statement that there was no distinct promise to hold it for his benefit, the exaction of such a promise, in view of the relation, might well have seemed to be superfluous.” Id. at 258. Here, although, as the District Court found, no express promise was made, a genuine dispute of material fact may exist as to whether Ahmed transferred the Property to Naushad “in reliance upon a confidential relationship,” Sharp, 351 N.E.2d at 723, as that term is defined by Sharp and Sinclair. Ahmed testified that he conceived of the Property as a family home that all could occupy indefinitely and that transferring the deed from one family member to another would not change this. As he explained, “To me, it was like ‐‐ we don’t believe in deeds. So, to me, it was like a family house . . . . Like, I never used to care, oh, it’s under whose name. We didn’t care. We didn’t care about that. I know it’s a family house.” App. at 77. A number of undisputed facts may support Ahmed’s characterization of his and his family’s views of the Property’s ownership: Plaintiffs lived rent‐free for almost thirty years, made capital improvements to the Property, paid taxes on the Property, received Naushad as a visitor only once 7 during this period, and changed the names on the Property’s deed multiple times without Naushad discussing these changes with the real estate lawyer who prepared the deeds. To the extent that Defendants question the existence of this practice and expectation, there may be a genuine dispute of material fact as to whether an implied promise was made and as to whether Defendants’ refusal to honor this promise unjustly enriched them. The District Court did not consider Sinclair. It cited Sharp and acknowledged the legal significance of implied promises: “New York courts have long held that while a promise is essential [to the creation of a constructive trust], it need not be expressly made, for active co‐operation or silent acquiescence may have the same effect as an express promise.” Jaffer v. Hirji, No. 14‐CV‐2127 (KMK), 2017 WL 1169665, at *11 (S.D.N.Y. Mar. 28, 2017) (internal quotation marks omitted). It did not, however, compare the relationship and the transaction in Sharp to the relationship and transaction alleged here. Instead, it rested its conclusion on what Naushad believed, a factor not discussed by Sharp. As a result, we cannot say that the District Court correctly determined whether Ahmed transferred the Property to Naushad “in reliance upon a confidential relationship,” Sharp, 351 N.E.2d at 723, as that term is defined by Sharp and Sinclair. We, therefore, remand to the District Court for it to make such a determination. Defendants’ major counterargument gives us little pause. In their brief, they contend that “Appellants predicate their claim on the allegation that the Home was 8 intended for the benefit of [Mohammed Hirji’s] children and therefore the promise to honor that objective . . . could be implied.” Appellees’ Br. at 13. They then explain that New York courts find constructive trusts to rectify fraud, not simply to enforce intentions. It is correct that New York law requires something beyond “intentions” if a constructive trust is to be imposed. See Binenfeld v. Binenfeld, 537 N.Y.S.2d 41, 42 (N.Y. App. Div. 1989) (observing that “[a]lthough the facts may reveal a case of unrealized expectations, we may not, without more, fashion a constructive trust” and adding that constructive trusts are “fraud‐rectifying remed[ies]”). But Defendants mischaracterize Plaintiffs’ case in this appeal. Plaintiffs’ claim to a constructive trust turns on considerably more than Mohammed Hirji’s intentions. It rests on the claims that Ahmed possessed an interest in the Property and deeded it to Naushad because he assumed, based on his relationship to Naushad, that Naushad would allow him and his family to live there indefinitely. Portraying Plaintiffs’ case as depending entirely on Mohammed Hirji’s intentions misses the case’s key facts. Defendants’ argument is, therefore, unavailing.1 1 If, on remand, the District Court finds that Ahmed transferred the Property to Naushad “in reliance upon a confidential relationship,” Sharp, 351 N.E.2d at 723, as that term is defined by Sharp and Sinclair, and hence that this case involves more than merely unrealized expectations, but concludes that the transfer lacked any element that might require a “fraud‐rectifying remedy,” Judge Calabresi believes that certification to the New York Court of Appeals may, at that stage, be appropriate to resolve the tension 9 Defendants make arguments based on the New York Dead Man’s Statute and judicial estoppel. The District Court rejected these arguments and so do we for the reasons given by that court. Adverse Possession Claim. We also conclude that the District Court properly granted Defendants’ motion for judgment on the pleadings with respect to Plaintiffs’ adverse possession claim. To establish a claim of adverse possession, one must show that the occupation of a property is “(1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period” of 10 years. Walling v. Przybylo, 851 N.E.2d 1167, 1169 (N.Y. 2006). While New York courts typically presume hostility where the other elements are satisfied, this presumption does not apply where “there is a close and cooperative relationship between the record owner and the person claiming title through adverse possession . . . .” Estate of Becker v. Murtagh, 968 N.E.2d 433, 438 (N.Y. 2012). In such circumstances, the “party asserting the adverse possession claim must come forward with affirmative facts to establish that the use of the property was under a claim of right and adverse to the interests of the true owners.” Id. (internal quotation marks and alterations omitted). between the language of the New York Court of Appeals in Sharp and Sinclair and that of the Appellate Division in Binenfeld. 10 Plaintiffs pled that Ahmed conveyed title to his brother, Defendant Naushad, in 1989. In such circumstances, “permission can be implied from the beginning, [and] adverse possession will not arise until there is a distinct assertion of a right hostile to the owner.” Congregation Yetev Lev D’Satmar, Inc. v. 26 Adar N.B. Corp., 596 N.Y.S.2d 435, 437 (N.Y. App. Div. 1993). The amended complaint does not contain any affirmative facts that Plaintiffs did anything that constituted “a distinct assertion of a right hostile to” Defendants. Accordingly, the District Court appropriately granted Defendants’ motion on the adverse possession claim. Sanctions. Finally, Defendants ask this Court to impose sanctions against Plaintiffs because this appeal was made “solely for the purpose of ‘needlessly increas[ing] the cost of litigation.’” Appellees’ Br. at 15 n.3 (quoting Fed. R. Civ. P. 11(b)(1)). We decline to do so. Plaintiffs prevail in their appeal of the constructive trust claim; their arguments are anything but frivolous. CONCLUSION For the foregoing reasons, we AFFIRM the October 27, 2015 order of the District Court and VACATE AND REMAND the May 18, 2017 judgment of the District Court. 11 17‐1881‐cv Jaffer v. Hirji JOSÉ A. CABRANES, Circuit Judge, dissenting: The New York Court of Appeals may one day decide to transform the constructive trust doctrine into an intent‐enforcing remedy. But because it has not yet done so, I respectfully dissent. According to the New York Court of Appeals, “the constructive trust doctrine serves as a ‘fraud‐rectifying’ remedy rather than an ‘intent‐enforcing’ one.” Bankers Sec. Life Ins. Soc’y v. Shakerdge, 406 N.E.2d 440, 441 (N.Y. 1980); see also Superintendent of Ins. v. Ochs (In re First Cent. Fin. Corp.), 377 F.3d 209, 216 (2d Cir. 2004) (“New York law is clear that a constructive trust is an equitable remedy intended to be ‘fraud‐rectifying’ rather than ‘intent‐enforcing.’”); Binenfeld v. Binenfeld, 537 N.Y.S.2d 41, 42 (N.Y. App. Div. 1989) (“Courts have uniformly held that a constructive trust is a fraud‐rectifying remedy rather than an intent‐enforcing one.” (internal quotation marks omitted)). Neither appellants nor the majority, however, identify any fact that creates a genuine dispute about whether appellees committed fraud. At most, appellants and the majority establish that there is a genuine dispute about appellant Ahmed’s subjective expectations when he conveyed title to appellee Naushad. Expectations are not enough to impose a constructive trust under New York law. See Binenfeld, 537 N.Y.S.2d at 42. (“Although the facts may reveal a case of unrealized expectations, we may not, without more, fashion a constructive trust.” (internal quotation marks omitted)).	01-03-2023	04-04-2018
https://www.courtlistener.com/api/rest/v3/opinions/3216775/	STATE OF MICHIGAN COURT OF APPEALS UNPUBLISHED In re M. A. MENCHACA, Minor. June 23, 2016 No. 329638 Wayne Circuit Court Family Division LC No. 14-515539-NA Before: TALBOT, C.J., and MURRAY and SERVITTO, JJ. PER CURIAM. Respondent father appeals as of right from the trial court order terminating his parental rights to the minor child under MCL 712A.19b(3)(a)(i), (a)(ii), (g), and (j). We affirm. “In order to terminate parental rights, the trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been met.” In re Van Dalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). A trial court must also find by a preponderance of the evidence that termination is in the child’s best interests before it can terminate parental rights. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). The trial court’s findings of fact are reviewed for clear error. In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009). In this case, petitioner concedes that the trial court improperly terminated respondent’s parental rights under MCL 712A.19b(3)(a)(i). Termination under this section, which requires evidence that the parent is unidentifiable, could not be established in the instant case where respondent was clearly identified as the child’s father. Although the trial court clearly erred in relying upon § (a)(i), this error was harmless in light of the evidence supporting termination of respondent’s parental rights under the other statutory grounds cited by the trial court. In re Powers, Minors, 244 Mich App 111, 118; 624 NW2d 472 (2000).1 Termination of parental rights was proper under MCL 712A.19b(3)(a)(ii). Termination under this section requires evidence that the “parent has deserted the child for 91 or more days 1 In his appeal brief, respondent mistakenly identified MCL 712A.19b(3)(c)(i) and (c)(ii) as grounds under which the court terminated his parental rights. The written order, however, cites only MCL 712A.19b(3)(a)(i), (a)(ii), (g), and (j). -1- and has not sought custody of the child during that period.” A parent’s failure to make any substantial effort to visit or communicate with the child or seek custody of the child for a period in excess of the statutory period establishes desertion. See In re TM, 245 Mich App 181, 194; 628 NW2d 570 (2001), overruled in part on other grounds, In re Morris, 491 Mich 81; 815 NW2d 62 (2012). Here there was sufficient evidence that respondent had failed to make any substantial effort to visit or communicate with his son or seek custody of him for a period in excess of 91 days. The record shows that the trial court assumed jurisdiction on March 3, 2014, because respondent failed to visit or support the child. From the time the child was removed from his mother’s care in January 2014, respondent did not visit until August 21, 2015, a period exceeding 91 days. Although respondent said he gave $50 for the child’s care at one point and had some telephone communication with the child, respondent admitted that he believed he was out of the child’s life and did not do anything during this period. Thus, any effort respondent made to communicate or support the child was not sufficient to undermine the court’s finding under MCL 712A.19b(3)(a)(ii). The trial court also properly terminated respondent’s parental rights under MCL 712A.19b(3)(g) and (j) because respondent was unable to care for his son, who would be at risk of harm in respondent’s care. In his brief on appeal, respondent claims that petitioner based its decision to pursue permanent custody on his past conduct and that the trial court prioritized the child’s placement with his aunt over respondent’s actions. These claims are unsupported by the trial court’s record. Although respondent, who lived in Illinois, said he wanted to move to Michigan, he did not have a plan in place to move or to care for the child. It was also questionable whether respondent had enough income to support a child. He did not have independent housing. He had not addressed his domestic violence issues or demonstrated that he had proper parenting skills, which would have put the child at risk of harm in respondent’s care. Respondent further argues that he made great strides on his treatment plan in less than one month. This claim is unpersuasive. It was not until petitioner filed a termination petition, in August 2015, that respondent sought counseling services in Illinois. Respondent chose to not engage in services and not to have contact with the caseworker or the trial court until that point, although he was well aware that the minor child was in foster placement. Respondent was no more prepared to have the child placed in his care 18 months after the trial court took jurisdiction than he was at the outset of the case. Thus, the trial court did not clearly err when it terminated respondent’s parental rights under MCL 712A.19b(3)(g) and (j). Respondent also asserts that termination of parental rights was not in the child’s best interests. However, respondent failed to support this claim in his brief on appeal. “Once a statutory ground for termination has been proven, the trial court must find that termination is in the child’s best interests before it can terminate parental rights.” In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). “[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence.” Moss, 301 Mich App at 90. In this case, termination of parental rights was in the child’s best interests. There was no evidence respondent could care for the child or provide him with a safe and stable home environment. There was also no evidence of any bonding between respondent and the child. Respondent’s claim that a guardianship would have given him additional time to comply with his -2- treatment plan and strengthen his relationship with his son does not undermine the court’s best- interest finding. Here guardianship was not a long-term, stable plan that would have benefited the child. Although not raised in respondent’s brief on appeal, the child was residing with his paternal aunt, a relative. “[A] child’s placement with relatives weighs against termination under MCL 712A.19a(6)(a).” Olive/Metts, 297 Mich App at 43 (citation omitted). If a child is living with relatives when the termination hearing occurs, then the trial court should consider that as an “explicit factor” in determining if termination is in the child’s best interests. Id. (citation omitted). “A trial court’s failure to explicitly address whether termination is appropriate in light of the children’s placement with relatives renders the factual record inadequate to make a best- interest determination and requires reversal.” Id. (citation omitted). Here the trial court considered the child’s placement with his relative and specifically noted that this placement was in the child’s best interests because he was doing well in placement and his aunt was willing to adopt him. Thus, the trial court did not err in its best-interest determination. Affirmed. /s/ Michael J. Talbot /s/ Christopher M. Murray /s/ Deborah A. Servitto -3-	01-03-2023	06-24-2016
https://www.courtlistener.com/api/rest/v3/opinions/3212191/	Case: 15-30282 Document: 00513543516 Page: 1 Date Filed: 06/10/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 15-30282 FILED Summary Calendar June 10, 2016 Lyle W. Cayce Clerk NASIR ABDUL ALI, also known as Donnie Ray Reed, Petitioner-Appellant v. MICHAEL D. CARVAJAL, Warden, United States Penitentiary Pollock, Respondent-Appellee Appeal from the United States District Court for the Western District of Louisiana USDC No. 1:15-CV-173 Before WIENER, HIGGINSON, and COSTA, Circuit Judges. PER CURIAM: * Nasir Abdul Ali, federal prisoner # 09596-042, appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition challenging the life sentence imposed following his 2005 conviction on multiple drug offenses. His petition alleges that his mandatory life sentence was unconstitutional because his prior convictions did not qualify as felony drug offenses for purposes of 21 U.S.C. §§ 841(b)(1)(A) and 851. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 15-30282 Document: 00513543516 Page: 2 Date Filed: 06/10/2016 No. 15-30282 As a general rule, a federal prisoner who seeks to collaterally challenge his conviction or sentences must file a § 2255 motion in the sentencing court. See Padilla v. United States, 416 F.3d 424, 426-27 (5th Cir. 2005). A petition for writ of habeas corpus filed pursuant to § 2241 is generally reserved for challenges to the manner in which the sentence is being executed. There is an exception, however, pursuant to the savings clause of § 2255. That clause allows a federal prisoner to attack the legality of his conviction or sentence via § 2241 when relief under § 2255 is inadequate or ineffective. 28 U.S.C. § 2255(e); Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). We have held that the § 2255 procedure is inadequate when a claim (i) is based on a retroactively applicable Supreme Court decision which establishes that the defendant may have been convicted of a nonexistent offense and (ii) was foreclosed by circuit law at the time when the claim should have been raised in his trial, direct appeal, or first § 2255 motion. Reyes-, 243 F.3d at 904. We have consistently held that challenges to the validity of a sentencing enhancement, which is the argument Abdul Ali raises, do not satisfy the savings clause. See, e.g., In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011) (holding that the petitioner’s claim that he was actually innocent of the career offender enhancement was not a claim that he was actually innocent of the offense of conviction); Padilla, 416 F.3d at 426-27 (holding that the petitioner’s claim that his sentence exceeded the statutory maximum did not satisfy the first prong of the Reyes-Requena test because he failed to show that he was convicted of a nonexistent offense); Preston v. Ask-Carlson, 583 F. App’x 462, 463 (5th Cir. 2014) (“[C]laims relating to sentencing determinations do not fall within the savings clause and are not cognizable under § 2241, even where the petitioner asserts a ‘miscarriage of justice’ or actual innocence relating to the alleged sentencing errors.”). 2 Case: 15-30282 Document: 00513543516 Page: 3 Date Filed: 06/10/2016 No. 15-30282 Relying on the Solicitor General’s concession in Persaud v. United States, 134 S. Ct. 1023 (2014), Abdul Ali argues that the savings clause should extend to a previously foreclosed argument that the prisoner was actually innocent of a mandatory life sentence. But the Department of Justice’s litigation cannot override our precedent holding that sentencing issues do not invoke the savings clause. And the Supreme Court did not issue a substantive ruling in Persaud; it only granted the petition, vacated the judgment below, and then remanded to the Fourth Circuit for reconsideration in light of the Solicitor General’s position. 134 S. Ct. at 1023. Under our precedent, Abdul Ali has failed to demonstrate that his claim fell within the savings clause of § 2255. See Padilla, 416 F.3d at 426-27. Accordingly, the district court’s judgment dismissing the § 2241 petition is AFFIRMED. 3	01-03-2023	06-11-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431256/	These three lawsuits grew out of the following facts: Ray A. Linderson was for many years cashier of the Lockridge Savings Bank, of Lockridge, Iowa. He owned 59 shares of 1. RECEIVERS: capital stock of that bank when it was closed by authority: the state banking department on December 12, compromise 1924. He also owned his homestead property in of claims. the town of Rockford, and two farms: one consisting Page 533 of 230 acres, lying southeast of that town, which was occupied by a tenant by the name of Burky, under a partnership agreement, to be hereinafter referred to; the other consisting of 270 acres, occupied by a tenant by the name of Miller, under a similar partnership agreement. The farm occupied by Miller was mortgaged in the sum of $16,500, and the one occupied by Burky in the sum of $19,500. Under these partnership agreements, Linderson was the owner of an undivided half interest in the live stock, crops, etc., and a part of the equipment, and individually owned certain other equipment, which was not of any great value, and which is not involved in this action. On the 10th day of February, 1925, Linderson made a deed for both farms and a bill of sale of all of his personal property to Mrs. R.C. Davis, sister of Mrs. Linderson. Linderson was also indebted to the Iowa Loan Trust Company, among others; and after the closing of the bank, and prior to the transfer by Linderson of his property to his sister-in-law, on January 8, 1925, the Iowa Loan Trust Company sued out an attachment, which was levied on the two farms and the interest of Linderson in the partnership property of Linderson Miller, and also on his interest in the partnership property of Linderson Burky. Prior to this, on the 10th day of December, 1924, the Iowa Loan Trust, Company took a mortgage from Linderson for $3,000 on the farm occupied by Burky, and it was on the note accompanying this $3,000 mortgage that the Iowa Loan Trust Company commenced its attachment case. Leach, receiver of the Lockridge Savings Bank, instituted an action against the stockholders, to recover their statutory liability; and on March 31, 1925, default was entered against a number of the stockholders, — among others, Ray A. Linderson, — on accepted service of notice. On May 28, 1925, judgment was rendered against Linderson in that proceeding for $5,900 and costs. Later, on January 18, 1926, the receiver issued execution on the judgment thus obtained against Linderson, and levied on the personal property in possession of the tenants Burky and Miller, claimed to belong to the respective partnerships. The receiver then brought an action in equity, to enforce his levy against the partnership properties. In this proceeding (being designated in the record as No. 8273) Ray A. Linderson filed his cross-petition, asking that the judgment against him for Page 534 $5,900 and costs be set aside, on the ground that it had been procured by fraud, and after a full settlement made between Linderson and the receiver. He asked that the judgment be vacated and set aside. This relief was refused him by the district court. In the receivership of the bank, by a method not explained, and at a time not designated, the property of the bank was turned over to Sherman, Huene, and Starr, as trustees, and they instituted an action against Linderson and wife and Burky (designated in the record as Case No. 8574), and also, as such trustees, instituted another action against Linderson and wife and Miller, asking that a receiver be appointed, to take charge of the partnership property and dispose of the same, and that the interest of Linderson therein be held by such receiver, and plaintiff's and all other persons' rights be adjudicated therein, and for further equitable relief. This is designated in the record as Case No. 8575. In each of these cases it was stipulated that the partnership property should be sold, adjustments made, and the rights of Linderson determined therein, and his share be turned over to the sheriff. These stipulations were carried out, and the sheriff received, and has now in his hands, the sum of $3,457.65, representing the Lindersons' interest in the personal property in controversy. Leach, superintendent of banking, having been appointed receiver, had one Enyart as his representative in charge of said bank. In the early part of May, 1925, Enyart contemplated starting proceedings in bankruptcy against Linderson, and so advised him; told him that the four-month period was about to expire, as against the Iowa Loan Trust Company attachment, and that, in order to defeat the same, Enyart was making applications for involuntary bankruptcy proceedings against Linderson, and that, unless something was done, he would do so. On the day in question, Enyart, Linderson and his attorney, and one Riggs, who was vice president of the Iowa Loan Trust Company, had a meeting, to see what could be done to adjust matters between them. Riggs was naturally opposed to bankruptcy proceedings, and was urging that Linderson do something to meet the situation, and thus avoid the bankruptcy proceedings. The proposition was made (by whom, is in dispute) that Page 535 the Lindersons should raise enough money to pay off the Iowa Loan Trust Company claim, and also raise $1,000, to pay to the receiver in full settlement of Linderson's liability to the bank, included in which liability of Linderson's was a note for $2,300 that he had personally given to the bank, to replace some worthless paper. The record shows that Linderson's liability to the bank, including his statutory liability as a stockholder, amounted to something like $12,000; and it was proposed that he pay to the receiver this $1,000 in full settlement and compromise of said liability. At this point lies the crux of this phase of the case. Enyart testifies that he was willing to accept said $1,000 in full settlement, provided that it was approved by his superior in the banking department, to wit, the receiver. Linderson claims that there was no condition to this offer by Enyart. This question being passed for the moment, Linderson raised the necessary amount in question, part of which was procured by the execution by him and his wife of a mortgage to his sister-in-law, Mrs. Davis, in the sum of $2,650; and through his relatives, Linderson also raised the $1,000 additional. This money was turned over to Riggs, and he assigned to Mary C. Linderson the mortgage and note held by the Iowa Loan Trust Company, together with all the rights of that company in the attachment proceeding, the amount due the Iowa Loan Trust Company being paid in full. It must be conceded, under the record, that the $2,650 mortgage on the town property of Linderson and wife was a mortgage on their homestead property, and that the Lindersons claim that the assignment of the mortgage and note and the trust company's interest in the attachment suit transferred to Mary C. Linderson was a part of the consideration for Mary C. Linderson's executing the mortgage on her homestead. Riggs paid to the receiver $1,000, furnished to him by the Lindersons. Enyart, representing the receiver, on receipt of the $1,000, credited the same on the $2,300 note above referred to, given by Linderson to the bank. It will be noticed in passing that this transaction occurred prior to the time that judgment was taken by the receiver against Linderson for the $5,900 stock liability, and it is the claim at this point by Linderson that the $1,000 thus paid to Enyart was in full settlement of all liability of Linderson to the Page 536 bank; and it is on this transaction that Linderson cross-petitions, and asks that the judgment against him for $5,900 and costs be vacated. To this question we will now give our attention. The evidence shows as to this matter that Enyart claims that, when this $1,000 proposition was presented to him, he said he would accept it subject to the approval by the receiver. The evidence undisputedly shows that, while these negotiations were pending, Enyart called his superior, the receiver, at the state banking department at Des Moines, by long-distance telephone, and had a conversation with him; that the receiver refused to approve such settlement; and that Enyart so advised Riggs, and Riggs so told Linderson. Later, Riggs called the superintendent of banking by phone, and conversed with him about this proposed settlement. The substance of his testimony is that the superintendent of banking still persisted in refusing to approve this settlement, and Riggs says that he so told Linderson, although Linderson denies that Riggs told him. Riggs further says that, after he received the information that the receiver would not accept the proposed settlement, "I conveyed that [the information] to him [Linderson], and he finally decided to pay the $1,000 anyway, and he did pay it." Linderson's wife testifies that, on the evening previous to this, Enyart came to their residence, and made a proposition to her husband that he would take $2,000 in cash in full settlement of this liability. After Riggs had talked with the banking department at Des Moines, Linderson insisted that he wanted something to show that, in making these payments, he was making a full settlement with both the Iowa Loan Trust Company and the receiver of the bank, whereupon Riggs gave him the following writing: "May 17, 1925. We have this day received from R.A. Linderson $400 represented by drafts now have in the hands of the sheriff of Jefferson county, $513, and R.A. Linderson agrees to pay to the Iowa Loan Trust Co. sufficient amount to make the total of $1,000 which amount is to be paid to receiver of the Lockridge Savings Bank, and it is our understanding with the receiver that there will be no further charge instituted against R.A. Linderson. [Signed] C.W. Riggs, Vice President." Objection was made by Linderson to the word "charge" in the last line of this writing, and an attempt was made to erase Page 537 the same; but he was told that the parties understood what was meant, and it was left as it originally was. The judgment of $5,900 entered against Linderson is, on the record, a verity; and, if the question be passed as to whether or not, under the record, it could be set aside on Linderson's cross-petition herein, it is to be remembered that the burden of proof was on Linderson in this matter, to establish his claim by a preponderance of the evidence; and we must say that, as we view this record as a whole, he has failed to sustain this burden. Further than this, the receiver being an officer of the court, he had no power to make a compromise and settlement of this character, without either having an order of the court, in the first instance, to make such settlement, or the approval of the court of the settlement, after so made. 34 Cyc. 257. The record shows no such order or approval. This holding, therefore, disposes of Linderson's cross-petition, and the action of the court in refusing to set aside the judgment thereunder was correct. In Cases Nos. 8574 and 8575, Ray A. Linderson and Mary C. Linderson filed answer, in which they plead that the $5,900 judgment was obtained in violation of a previous agreement of settlement made and entered into between the superintendent of banking and Ray A. Linderson, on the 7th day of May, 1925. They further allege that, as a part of said agreement of settlement, Linderson assigned all of his right, title, and interest in and to the leases existing between Linderson and his tenants, Burky and Miller, to Mary C. Linderson, his wife, and that Ray A. Linderson has no right, title, or interest in any of the subject-matter or personal property under the lease agreements between Linderson and Burky and Linderson and Miller, respectively; that the personal property therein described and referred to is the absolute and unqualified property of the defendant Mary C. Linderson. They ask that the plaintiff's petition in these two cases be dismissed, and the property or transfers be ordered surrendered to Mary C. Linderson, and for such other and further equitable relief as may be deemed just in the premises. The first issue made, as to the agreement that the bank should take the $1,000 in full settlement of all of its claims, has already been disposed of. The other issue tendered, is the question of whether or not Mary C. Linderson is the absolute owner of the personal property in question, and entitled to the Page 538 possession thereof. We refrain from setting out all of the evidence in this case involving this proposition, in order that the opinion may not be of unreasonable length, and only give our conclusions from the record. Early in January, 1925, the Iowa Loan Trust Company was pushing its claim, and Linderson was making efforts to meet the same. He was negotiating for a loan with his sister-in-law, Mrs. R.C. Davis; and on the 10th day of February, 2. HUSBAND 1925, Linderson deeded both of his farms, and AND WIFE: gave a bill of sale of all of his personal conveyances: property, to Mrs. Davis, in a contemplated securing arrangement with her to secure the funds to take wife against care of these claims; but after Mrs. Davis's loss on representative looked over the properties, she homestead was not satisfied to accept the rights she mortgage. acquired under the deed and bill of sale as security, and further negotiations resulted in the making of a mortgage for $2,650 by Linderson and wife to Mrs. Davis on the former's homestead, Mrs. Davis furnishing that amount of money; and at the same time, and as a part of the same transaction, Mrs. Davis deeded back to Linderson and wife the farm which was occupied by the tenant Miller, and made a bill of sale to Mrs. Linderson of the personal property formerly conveyed to her by Linderson; and Riggs, for the Iowa Loan Trust Company, assigned the mortgage and note of that company and all its rights under the pending attachment case to Mrs. Linderson. She testifies that she would not have signed the mortgage on the homestead, had not these various things been done. Mrs. Davis does not testify in the case. Riggs says, as to the assignment of the mortgage and note of the Iowa Loan Trust Company to Mary C. Linderson: "I was advised at that time that, in consideration of this assignment, Mrs. Linderson was signing a mortgage on her homestead. Aside from the money received from Mrs. Davis, Linderson used about $1,000, which was furnished by a relative." With reference to these various transactions Linderson testifies: "I had a discussion with Mr. Riggs as to what would be done to secure my wife. She was present during the negotiations, and stated on what conditions she would be willing to consent to a mortgage, being placed on the home. She said, to turn Page 539 over to her the mortgage and an attachment to her, which they did; and the assignment thereof was made, and cause of action therein was duly assigned of record. The bill of sale from Mrs. Davis to Mary C. Linderson was delivered to my wife at about the same time, and pursuant to the same negotiations." At the same time, the witness executed an assignment of the leases of Burky and Miller to Mary C. Linderson, as a part of the agreement of securing her for signing the mortgage and the homestead and the borrowing of the money from her sister and the other money that was furnished by her relatives. From that time, May 7, 1925, he says, Mrs. Linderson had been getting the proceeds of the Miller farm, and whatever checks were sent by Miller to Linderson were proceeds derived from the farm, and were turned over to Mrs. Linderson, who cashed the same and kept the proceeds thereof, except that she paid interest and taxes on the farm which had been jointly deeded by Mrs. Davis to her and her husband. Mrs. Linderson testified: "I told them I would not sign a mortgage unless they would give me security. I have heard the testimony about these assignments of these leases and the bill of sale from R.C. Davis. They were executed about that time, and were delivered to me, and from that time I had charge of what had been Ray's interest in the two farms, and operated them to the best of my ability. I did at that time sign notes for $2,650 and mortgage securing that note to Mrs. Davis. The mortgage is still held by my sister. Aside from the aforesaid amount, my sister has advanced, since that time, the sum of $1,200 to $1,300." She says that her sister's representative was not satisfied with the sufficiency of the security given her by the deed and the bill of sale for the personal property of R.A. Linderson, but finally advised the making of the mortgage on the homestead "and the bill of sale that we had already made should be returned to her," and she did that. "My sister made the deed back to one of the farms to Ray and I. The purpose and object of making the deed and bill of sale to my sister in the first place was to obtain money to pay up the obligations to the Iowa Loan Trust Company and release the attachment. That was the sole idea and purpose at that time. We had an understanding with my sister that perhaps Page 540 that could be done, if she would advance the money on that kind of security. Mrs. Davis was going to California, and it was thought it would be less trouble for her, and be all the same to me, for me to give the mortgage on the homestead. I do not know what particular money went into the Iowa Loan Trust Company, or what particular money went to the Lockridge Savings Bank or its representative in that settlement. It was all one settlement and transaction, so far as I know. In raising these funds by giving that mortgage, it was my thought that it was all one transaction, for the purpose of settling both obligations to both banks. I would not have signed a mortgage on my homestead if I had not believed it was a full settlement, including a settlement of all liabilities to the Lockridge Savings Bank. When I gave the mortgage, I thought I was getting full value received, — just simply carrying somebody else, in place of what my share might be in the homestead." There is no question whatever, under this record, that the sister-in-law, Mrs. Davis, furnished the money for which the mortgage was given. There is nothing to indicate that there was any intention whatever to defraud the creditors of Linderson by these various transactions. Mrs. Linderson seems to have been very reluctant to sign away her homestead rights unless she had ample security, and she had the right to demand and accept whatever security she saw fit, in consideration of so doing. The evidence in the case shows quite conclusively that there was but little or no equity in either of these farms. The only thing of value that seems to have been involved in the transaction was the interest of Linderson in the partnership property on these two farms. At the time in question, the record shows, there were adjustments to be made between Linderson and both of his tenants, and no one knew exactly what the value of Linderson's interest was in these respective partnership properties. It developed, after these adjustments had been made and the property sold, that the total amount in value of Linderson's interest in this personal property was something over $3,400; so that the security that Mrs. Linderson took as a return for her signature to the mortgage conveying the homestead, under the circumstances, was not unreasonable. On the other hand, this being a court of equity, which seeks to do justice between all parties, we feel that, while Mrs. *Page 541 Linderson's claimed ownership should be allowed her, it should only be allowed to the extent of the face of said mortgage of $2,650, and the balance of the money in the hands of the sheriff, we hold, is subject to the execution in these cases. The ruling of the district court will be modified in accordance with this opinion, to the extent of holding that Mrs. Linderson is entitled, out of the money in the hands of the sheriff, to the whole sum of $2,650, and that the balance thereof should be used by the sheriff to apply on the execution in question. — Affirmedin part; reversed in part. EVANS, C.J., and DE GRAFF, MORLING, and WAGNER, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431258/	[1] Plaintiff in his petition alleges that Clyde S. Swearingen had been and was at the time of filing the petition engaged in the practice of barbering in this state without a license; that he had failed to apply for a renewal of his license prior to June 1, 1943; that he had failed to apply for and receive a reinstatement of his license as by law provided; that his license was not renewed on June 30, 1943, and that he has had no license since that time and he is not now properly Page 1033 licensed to practice barbering in this state but is illegally engaged in the practice of barbering without such license in a shop owned and operated by him at Rolfe, Iowa. In answer to plaintiff's petition defendant admits that he was practicing without a license, but states that he has had no hearing or notice of hearing to revoke, invalidate, or refuse the issuance or renewal of his license, which is a property right. He further alleges that he applied for a renewal of his license about ten days late but had been unjustly refused the renewal; that he had tendered all fees and done all things required of him preliminary to the issuance or renewal of such license; that pursuant to section 2526 of the Code of Iowa, the department of health adopted a circular of information in connection with the practice of barbering, which indicated that the renewal fee might be paid at any time prior to July 1st, and that the common custom of the department was to accept these fees at any time before July 1st; that the failure to renew the license is not the fault of the defendant but is an unwarranted and arbitrary refusal of the department, and by way of cross-petition defendant asks for affirmative relief and that a writ of mandamus be granted requiring the plaintiff to issue a renewal of his license to practice the trade of barbering in the state of Iowa, and for general equitable relief. At the conclusion of the hearing the district court dismissed plaintiff's petition and denied the injunction and ordered the Division of Barbering, State Department of Health, to issue and deliver to the defendant a renewal of his license upon payment of the required fee of $9. On trial the testimony was mostly uncontradicted. Defendant had been a practicing barber at the time the license law was passed, and afterward operated as a barber and was issued a certificate, No. 5982, without examination. Defendant was committed for the third time to the State Hospital at Cherokee, Iowa, as an inebriate, and was an inmate thereof in May and June 1943. Five days after such admission he was employed at barbering in the hospital, mostly shaving, and continued at such work nearly every day during his stay. Page 1034 At the time of filing defendant's brief in this appeal he was still on parole from the hospital. On or about the 10th day of June 1943, he applied through the superintendent of such hospital to the department of health for a renewal of his certificate; such renewal was refused and the fee sent with it returned; other like applications made by the defendant were refused by the department; no application was ever filed by the defendant with the board of examiners for reinstatement of his license. Defendant alleges and there is evidence that the defendant never received a notice of the expiration of his license, under section 2447, Code of Iowa, 1939. Upon being granted a parole from the Cherokee hospital defendant reopened his shop at Rolfe and has engaged in barbering there ever since, without a renewal or reinstated license, and now refuses to apply for a reinstatement of his license. No action has been commenced to revoke his license and no notice of hearing was given the defendant by the department when refusing to renew his license on June 10, 1943. Notwithstanding the statement of defendant that he had not received his notice of expiration the department alleges that such notice was mailed as by law provided. Plaintiff in its appeal urges that the district court, in its opinion filed with the decree, erred by failing to consider one of the conditions necessary to obtain the right to a renewal of the license, namely, the condition of a timely application; that even though the application was not timely the court held that the licensee was entitled to a notice of hearing before a renewal could be denied by the department of health. The main point of controversy in this proceeding centers around the question of the right of the department of health to deny the renewal because the application was filed on or about June 10th instead of prior to June 1st, and the renewal was so denied without a hearing on notice. Under the provisions of Code section 2439 a license is necessary before engaging in the practice of barbering, and in the following section, 2440, the qualifications for obtaining such license are given. Sections 2450, 2451, and 2452 provide for an examining board. Page 1035 An annual renewal, with a charge therefor of $3, is provided in section 2447, Code 1939, as follows: "Every license to practice a profession shall expire on the thirtieth day of June following the date of issuance of such license, and shall be renewed annually upon application by the licensee, without examination. Application for such renewal shall be made in writing to the department accompanied by the legal fee at least thirty days prior to the expiration of such license. Every renewal shall be displayed in connection with the original license. Every year the department shall notify each licensee by mail of the expiration of his license. This section and section 2448 shall not apply to dentists and dental hygienists." In event of licensee permitting his license to lapse, Code section 2448 determines the method of reinstatement, as follows: "Any licensee who allows his license to lapse by failing to renew the same, as provided in section 2447, may be reinstated without examination upon recommendation of the examining board for his profession and upon payment of the renewal fees then due." The Code, by section 2492, provides that a license to practice a profession shall be revoked or suspended whenever the licensee is guilty of the various acts or offenses as listed in such section. An action for revocation is begun by the attorney general filing a petition for the revocation or suspension of a license in the office of the clerk of the district court having jurisdiction. This petition is filed by direction of the department of health, either on its own motion or upon sworn information of some person who resides in the county wherein the licensee practices. Code section 2497. The rules for such filing are given in sections 2498 and 2499. Section 2500 provides for the time and place of trial, and section 2501 provides that: "Notice of the filing of such petition and of the time and place of hearing shall be served upon the licensee at least ten Page 1036 days before said hearing in the manner required for the service of notice of the commencement of an ordinary action." The cause is tried as an equity action (section 2502), and section 2503 provides as follows: "Judgment of revocation or suspension of the license shall be entered of record and the licensee shall not engage in the practice of his profession after his license is revoked or during the time for which it is suspended. The clerk of the court shall, upon the entry of such judgment, forthwith furnish the state department of health with a certified copy thereof." From this action, as provided in the following sections, an appeal may be taken to this court. Thus it will be seen that in the event it is deemed advisable the right or license of any licensee engaged in the practice of barbering may be revoked when there are apparently grounds therefor. The complete method therefor is provided by the Code provisions just quoted or referred to. There is given to the licensee, before being deprived of all the rights under his license, an opportunity for a full and complete hearing on due notice. It is provided by section 2519 that a person engaged in any business or in the practice of any profession for which a license is required by this title, without such license, may be restrained by permanent injunction. In this case the application for a permanent injunction was denied by the district court, the court holding that a permanent injunction was not justified either under the law or facts. It stated that there were lacking (1) failure on the part of the plaintiff to give notice to the defendant and an opportunity to him for a hearing (2) failure of the plaintiff to show that the defendant is "without such license" as the term is used and intended in section 2519 of the Code and (3) the plaintiff failed to prove sufficient facts to justify an injunction. The court, in its opinion, held that when the term "without a license" was used, the reference was to the original license, basing its opinion largely on the holding of this court in the case of Gilchrist v. Bierring, 234 Iowa 899, Page 1037 14 N.W.2d 724, and State v. Otterholt, 234 Iowa 1286,15 N.W.2d 529. I. We do not think it necessary to determine the correctness of the court's opinion in regard to the second ground thereof, so far as the issues here are concerned. The case can be decided without determining whether or not the statute refers to the original license or the renewal, but as to the district court's ground one we agree. Under the holdings in the cases of Gilchrist v. Bierring, supra, and Craven v. Bierring, 222 Iowa 613, 619,269 N.W. 801, 805, the board, before denying the licensee a renewal of his license, must give him notice and an opportunity to be heard. The former case states, at page 915 of234 Iowa, page 732 of 14 N.W.2d: "If he has violated the canons of his profession he may be denied the right to continue therein, either by a revocation of his current license or by a refusal to renew it. But, in either event, the determination that his conduct renders him unworthy to continue in the practice constitutes the exercise of a judicial function which requires notice and an opportunity to be heard." The rule laid down in that case is, in turn, approved in the Otterholt case, at page 1290 of 234 Iowa, page 531 of 15 N.W.2d, wherein we say that the license "is a privilege or right, `which cannot be denied or abridged in any manner except after due notice and a fair and impartial hearing before an unbiased tribunal.'" The Otterholt opinion cites and approves the case of Craven v. Bierring, supra. In the present case no claim is made, nor does the record show any assertion, that the defendant was unfit to receive a renewal. There are intimations, but no direct charge of any kind, that defendant had violated some of the grounds necessary to a revocation under Code section 2492, which sets out ten specific grounds for which a license may be revoked. The only complaint in the present action is that defendant failed to file his application for renewal, with fee, before June 1, 1943. The original certificate did not lapse before June 30th, so that the application and fee were ten days late and were returned to the applicant with no allegations that there were Page 1038 any other reasons for a denial of the application. If there were other reasons for refusal, the applicant licensee was entitled to know them by proper notice so that he might have an opportunity to defend or explain them. He was entitled to a complete statement of the charges which he might meet. Whether his explanation or defense would be sufficient is not here material, but, at any rate, charges against the licensee are not to be determined without a hearing. The record shows that the board of examiners, on November 5, 1943, refused to recommend a reinstatement of his license under the provisions of Code section 2448, so that if we should adopt the contention of the State, defendant would be compelled to submit to an examination by the board which has already disapproved his application for reinstatement. This situation amounts to an indirect attempt to deprive the licensee of the benefits of his right to practice without affording him the right to defend, and it avoids a direct proceeding for revocation. If there are reasons for revocation or denial of a renewal they can be presented in an action for revocation or by refusal of renewal by due process of law. If there are not sufficient grounds, then the method pursued in this case would be subject to criticism as an attempt to do indirectly what could not be accomplished by direct means. [2] II. The court held that under the facts an injunction should not be granted. With this conclusion we agree. The relief sought by the petition for injunction was substantially that which could be accomplished by a proceeding for revocation, but was based only on the ten-days' delay in transmitting the application for renewal. There still remained twenty days before defendant's license expired. This was ample time in which to grant or refuse a renewal. The record, however, shows that there had been frequent instances where strict compliance with the time provision had been waived. We are convinced from a reading of the two sections, 2447 and 2448, that the time provision for renewal in the former section is directory only and not mandatory. The fact that the department had not, in all cases, required strict compliance with this provision indicates that the department had so interpreted the statute. Such interpretation is, of course, not binding upon Page 1039 us, but is, to some extent, persuasive. According to the record, no reason, except delay, stood in the way of a renewal. The department could have granted such renewal without examination. To refuse would hardly be the exercise of a sound legal discretion. The thought would naturally occur that there might be other reasons existing in the minds of the board rather than the mere question of delay. If there were such other reasons for refusal the defendant and the court were entitled to know them and the defendant be given an opportunity to resist. The effect of a refusal to renew was a denial of defendant's right to practice, and, so far as his practicing his occupation was concerned, had the same effect as a revocation. We have referred to the grounds set out in section 2492. None of these grounds is alleged in the petition nor does that section anywhere mention delay as such ground. Under the facts shown by the evidence we must hold that the court was right in refusing a permanent injunction. If the defendant is an improper person to be pursuing his occupation it is the right of plaintiff to bring an action for revocation, with due notice and opportunity to defend. See Smith v. State Board of Medical Examiners, 140 Iowa 66, 70,117 N.W. 1116, 1117, and cases cited, and Gilchrist v. Bierring, supra,234 Iowa 899, 916, 14 N.W.2d 724, and cases cited. The defendant has been denied the right of renewal only on account of delay. There were no issues in the present action involving a revocation or the right to revoke. No proof of such was offered. We know of no reason why the question of defendant's right to a license, or a renewal of his license, could not be determined and granted or denied under the statutory method. We must hold that on the showing made in this proceeding the extraordinary proceeding of injunction is not available, and so far as the ruling thereon by the district court is concerned, the same is affirmed. The defendant, in Division II of his answer and by way of cross-petition, asks that a writ of mandamus issue to compel plaintiff to issue a license or renewal of his license. Since the effect of our ruling herein is to hold that the denial of a renewal without due process of law was erroneous, we think that Page 1040 the issuance of a writ of mandamus would be a mere formality and there is no necessity therefor, and the decree is modified to that extent. In other respects it is affirmed. — Modified and affirmed. MILLER, J., concurs. MULRONEY, J., and BLISS, C.J., and OLIVER, GARFIELD, SMITH, and MANTZ, JJ., specially concur. WENNERSTRUM, J., not sitting.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3437330/	[1] On the 11th day of August, 1927, there was born to the defendant, Agnes Schnack, a girl baby, which child was born out of wedlock. The mother's occupation was that of maid-servant Page 467 and cook. She had been employed for a number of years in this service and was so engaged at the time of the birth of the child, who is known in the record as Mary Agnes Schnack. In October, 1927, defendant took the child to visit some relatives at Reinbeck, Iowa, and on the train became acquainted with the appellee Julia Pitzenberger. The Sunday following, the mother and baby appeared at the Pitzenberger home in Waterloo where defendant eventually became a house servant, keeping her baby with her. She was paid a weekly wage. The Pitzenbergers were engaged in conducting a beauty salon in the city of Waterloo, and were usually away from home from early in the morning until late at night. Defendant continued to work as such house servant until September or October, 1929, when she took the baby to Council Bluffs to look up its father. She was gone two weeks, leaving the personal belongings of herself and child at the Pitzenberger home. After spending about three weeks in Council Bluffs, she went to visit some friends at Colesburg, Iowa, and after her return therefrom, took the child to Des Moines. About five weeks thereafter, Mrs. Pitzenberger sought her in Des Moines and asked her to bring the baby back to Waterloo, telling her they would help her to get work. This was about November 1, 1929. Defendant returned to Waterloo, but the Pitzenbergers left her and the baby at a hotel, refusing to take them into their home. No work was furnished, and she asked permission to leave the child with them while she went to Des Moines to arrange for a home for herself and the baby. On November 23, 1929, she returned to Waterloo to get the baby, and Mrs. Pitzenberger refused to let her have the child, forcibly ejected her from her home, called the police, and defendant was subsequently arrested and held in jail without warrant, until November 25, 1929, when a charge of insanity was lodged against her by a deputy sheriff. A hearing was had before the commissioners of insanity of Black Hawk county, she was adjudged insane, and committed to the Hospital for the Insane at Mt. Pleasant. At the time the defendant was ejected from the Pitzenbergers' home, they were in possession of the child and refused to allow her to take it. On November 24, 1930, defendant was paroled from the State Hospital by the authorities to her father, Henry Schnack, of Prescott, Wisconsin. When she was released under the parole, she immediately went to see her daughter at Waterloo, but the Page 468 Pitzenbergers, having learned of her arrival, took the child out of town. She then went to Des Moines, secured regular employment, and through an attorney, sought to recover the possession of her child. She went to Waterloo and with the aid of Mrs. Mary Sheridan, Salvation Army religious worker, went to the Pitzenbergers' home to get the baby. They refused to allow her to take the child. This was in March or April, 1931. Several demands were made on the Pitzenbergers after this for the possession of the child, which demands were always refused. On August 6, 1931, the Pitzenbergers filed a petition in the Black Hawk District Court, alleging that Agnes Schnack, defendant, had abandoned her child, Mary Agnes, and asking permission of the court to adopt the said Mary Agnes; and on the same day the court made an order that "said application be set down for hearing before the undersigned, one of the Judges of the District Court of Iowa, Tenth Judicial District, at the Court House in Waterloo, Iowa, forthwith, notice of which hearing is waived by the Court and the investigation as is required by Section Two, Chapter 218 of the 42d General Assembly is waived by the Court." On the same day judgment was entered reciting that notice was waived, "and all the evidence having been considered," the court found that the allegations of the petition were true; that Agnes Schnack, the mother, had abandoned said child, and she was a resident of Polk county, Iowa. Other findings were made, and the judgment contained this provision: "It is therefore ordered and decreed that from the date hereof the above mentioned child shall be the child of the petitioners, and the name under which the child shall hereafter be known is Mary Pitzenberger." On the 17th of September following, Agnes, the mother, made application to vacate the judgment and dismiss the petition. Numerous grounds are alleged therein, among which are that Agnes, the mother, never abandoned said child; second, that a fraud was perpetrated upon the court by the Pitzenbergers in their petition by alleging and claiming that she had so abandoned said child; that the validity of the proceedings authorized by statute was unconstitutional and void, not providing for due process of law, in that no notice whatever was served upon the mother, Agnes, although her residence was known; that the provision of the statute providing for Page 469 waiver of notice was unconstitutional; and that the judgment was void because no guardian ad litem was appointed. Numerous interesting questions are raised as to the validity of this proceeding and the constitutionality of the law. As to the constitutional question, we pass the same without expressing any opinion thereon because of what is subsequently said in the opinion. One fact which should have been previously stated is that Agnes, the mother, was discharged from the hospital at Mt. Pleasant by the proper authorities as fully recovered on August 22, 1931. Assuming, but not deciding, that the law in controversy, to wit, contained in Chapter 541, Code 1927, is constitutional, the question is: Was the court warranted in making the order it did, based wholly on the ground that Agnes, the mother, had abandoned this child? We are not favored by an argument by the appellees in this case and hence are not able to determine just what their contentions are and were. The application to set aside the judgment and dismiss the petition is, of course, a direct attack upon the judgment of adoption. Remembering that the burden is upon the applicant so attacking said judgment, we have reviewed the record, the principal part of which has heretofore been set out in the statement of facts, which is practically undisputed. It is fundamental that the jurisdiction of the district court of Black Hawk County did not exist in this case, especially where no notice was given to any person, if it existed at all, by reason of the fact that Mary Agnes was an abandoned child. After reading the record carefully, we reach the conclusion that there is no evidence whatever showing that Mary Agnes had been abandoned by her mother, but on the other hand, it shows, quite satisfactorily, that she never was so abandoned. [2] The mother of an illegitimate child is entitled to its custody, service and earning. Allison v. Bryan, 109 Pac. (Okla.) 934; Purinton v. Jamrock, 18 L.R.A. (N.S.) (Mass.) 926. [3] To constitute an abandonment, there must be a "relinquishment or surrender of rights or property by one person to another; a giving up; a total desertion. It includes both the intention to abandon and the external act by which the intention is carried into effect." Vol. 1, Words Phrases, p. 5. "In a technical sense, the word means the relinquishment of Page 470 a right; the giving up of something to which one is entitled; the giving up of a thing absolutely without reference to any particular person or purpose." Ballentine Law Dictionary p. 1. Many cases have defined the term "abandonment" as used in the law, but in all of them will be found that intention is an element of abandonment. As applied to the facts in this case, there is no showing that there was ever any intention on the part of the mother to abandon this child, and in addition to this, the evidence shows that she was under a judgment of insanity for over a year, and was not discharged therefrom as recovered until after the adoption proceedings. Being insane, she was not in a position to have or exercise the intention which is necessary to abandonment. The real truth of the matter, as reflected by this record, shows that she at all times was demanding the child, and these demands were never acceded to by the Pitzenbergers; and it rather looks as though the whole proceeding was an effort to deprive her of her child. We conclude, therefore, that the district court erred in refusing to set aside this judgment of adoption and in not dismissing the plaintiffs' petition for such adoption. The case is remanded to the district court with directions to set aside the judgment of adoption and dismiss the petition. — Reversed and Remanded. STEVENS, C.J., and FAVILLE, De GRAFF, and WAGNER, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/4031303/	THE THIRTEENTH COURT OF APPEALS 13-15-00345-CV Norma Alicia Martinez Araujo v. Manuel Araujo On appeal from the 332nd District Court of Hidalgo County, Texas Trial Cause No. F-4611-13-F JUDGMENT THE THIRTEENTH COURT OF APPEALS, having considered this cause on appeal, concludes that the judgment of the trial court should be affirmed. The Court orders the judgment of the trial court AFFIRMED. Costs of the appeal are adjudged against appellant. We further order this decision certified below for observance. September 1, 2016	01-03-2023	09-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/4043977/	THE STATE OF TEXAS MANDATE ********************************************* TO THE 294TH DISTRICT COURT OF VAN ZANDT COUNTY, GREETING: Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 21st day of January, 2015, the cause upon appeal to revise or reverse your judgment between EDOM CORNER, LLC AND EARL A. BERRY, JR., Appellants NO. 12-14-00131-CV; Trial Court No. 09-00138 By per curiam opinion. IT'S THE BERRY'S, LLC D/B/A MARY ELLEN'S, Appellee was determined; and therein our said Court made its order in these words: “THIS CAUSE came on to be heard on the appellate record; and the same being considered, it is hereby ORDERED, ADJUDGED and DECREED by this Court that this agreed interlocutory appeal should be dismissed. It is therefore ORDERED, ADJUDGED and DECREED by this court that the appeal be dismissed; and that the decision be certified to the court below for observance.” WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed. WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the 7thday of April, 2015. CATHY S. LUSK, CLERK By: _______________________________ Chief Deputy Clerk	01-03-2023	09-28-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431328/	The Greene County Savings Bank commenced foreclosure of the second mortgage in April, 1924. It obtained a decree in December of the same year. The decree awarded a 1. MORTGAGES: receivership, under the provisions of the lien and mortgage, for the rental income for the year priority: 1925, and Freeland was appointed as such accrued receiver. Execution sale was had in April, 1925, rents. wherein the mortgagee bid the full amount of its judgment, less $1,000, for which sum it held a deficiency judgment. The foreclosure decree conferred upon the receiver "the usual power to take possession of said property and collect and hold the rents and profits for the benefit of the plaintiffs, except the rents for the year 1924, * * * subject to the orders of the court." Pursuant to this decree, the receiver rented the mortgaged land, and reported a balance of rent for the year 1925, after paying all costs and expenses incurred by him, in the sum of $2,400. This fund became the bone of contention. In November, 1925, the plaintiff herein brought this suit to foreclose his own prior mortgages, and made all junior lien holders parties thereto, including the Greene County Savings Bank. He also prayed and obtained the appointment of a receiver, to take possession of the property and to collect the rental income in his behalf. He obtained decree in February, 1926, and became the purchaser at the execution sale in March, 1926, leaving, however, a deficiency judgment in his favor of $1,600. No controversy is presented over the rental income for 1926, being the year of redemption under plaintiff's execution sale. In granting plaintiff his prayer for a receiver, the court appointed Freeland as such, who was then in possession of the land under the previous appointment in the foreclosure suit of the Greene County Savings Bank. Freeland thereby became clothed in a dual capacity. Page 50 The plaintiff herein asked that Freeland, as receiver, be required to apply the fund of $2,400 in his hands to plaintiff's benefit, as follows: (1) That he pay all delinquent taxes and certain drainage assessments against the land; (2) that he pay plaintiff the balance thereafter remaining. The relief so prayed was awarded to plaintiff by the decree. This is the order to which the complaint of the appellant is directed. It is quite apparent, under the facts above stated, that the plaintiff, as mortgagee, had no lien or claim upon the 1925 rents, all of which had accrued prior to the commencement of his foreclosure. We have so held specifically in many cases: Hakes v.North, 199 Iowa 995; Farmers Merch. St. Sav. Bank v. Kriegel,196 Iowa 833; First Nat. Bank v. Security Tr. Sav. Bank,191 Iowa 842; Smith v. Cushatt, 199 Iowa 690; Whiteside v. Morris,197 Iowa 211; Swan v. Mitchell, 82 Iowa 307; Stetson v. NorthernInv. Co., 101 Iowa 435. Inasmuch as the fund in question was entirely outside of the pale of plaintiff's security, the court was not justified in making any order in this case pertaining thereto. So far as this case was concerned, Freeland was receiver of the property for the year 1926 only, and plaintiff had no basis or right to interfere with the orders already made in the foreclosure suit of the second mortgagee. What would have been a proper order to make in the earlier foreclosure suit is a question which cannot be determined in this suit. It is suggested by the appellee that Section 12718, Code of 1924, rendered it obligatory upon the court to order such fund applied to the payment of taxes. We do not think 2. RECEIVERS: such section is applicable. This is not a case allowance of distribution of the corpus of an estate, nor and payment does it involve a contest of priorities, as of claims: between creditors generally. The taxes were a taxes. first lien upon the real estate when the rent was collected. They were no less such after such collection. They were never a lien upon the fund. What power of discretion the court may have, to order payment of taxes in a given case, we do not now determine. It could in no event be exercised except in the proper case. This was the first foreclosure suit. We hold now only that this statute did not render it obligatory upon the court to so order. Page 51 For the reason herein indicated, the order entered below will be reversed, without prejudice to proper orders upon the same subject in the other foreclosure suit. It may be noted here that, since the decree below, the Greene County Savings Bank has closed its doors, and passed into the control of the Banking Department of the state of Iowa, and its interests are now represented by the superintendent of banking. The order complained of is, accordingly, reversed. — Reversed. De GRAFF, ALBERT, and MORLING, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431329/	On July 2, 1942 plaintiff recovered a judgment against defendant in the sum of $150. The action was predicated upon the alleged negligent operation of a motor vehicle by the defendant. On August 6, 1947 defendant moved to set aside the judgment and for an order restraining the Department of Public Safety from proceeding under section 321.275, Code of 1946 (section 5021.01, Code of 1939). After a hearing, the motion was sustained and a judgment entered accordingly. Plaintiff appeals. The record is brief and there is little dispute over the facts. On July 2, 1942, when the original judgment was entered, appellee was eighteen years of age. This fact does not appear to have been brought to the court's attention. After the service of the original notice upon appellee by appellant's counsel, one P.C. Rasmussen, an attorney, appeared for appellee and was given time to plead. On July 2, 1942 Rasmussen withdrew his appearance, and judgment was entered without a defense being made for appellee by a guardian ad litem. On August 24, 1942 appellee was married and in October 1942 entered the military service by induction or enlistment. He was discharged October 22, 1945. On August 5, 1947 appellee was notified by the Department of Public Safety of intention to act under section 321.275, Code of 1946, and to suspend his license etc. as therein provided, the judgment of July 2, 1942 not having been satisfied. August 13, 1947 appellee filed his motion to set aside the original judgment and to enjoin the Department of Public Safety from acting under section321.275. So far as the record shows, the said department was never made a party to the hearing and has taken no part in the proceedings. On August 15, 1947 a temporary restraining order was issued against the department Page 964 and on September 10, 1947 the motion was submitted. It was sustained generally, the original judgment was vacated and the department permanently enjoined. The motion was based upon the following propositions: (1) That the original notice being served by plaintiff's attorney did not give the court jurisdiction over the defendant (2) that defendant was a minor, no guardian ad litem was appointed, and the failure to advise the court of this fact constituted fraud upon the court (3) that the appearance made for defendant by P.C. Rasmussen was unauthorized (4) that defendant being subject to induction into the military service, an affidavit under sections 200-204, 54 Stat. at L., Part 1, chapter 888 (Soldiers' and Sailors' Civil Relief Act of 1940, sections 520-524) should have been filed; and that for the reasons above stated, the judgment of July 2, 1942 was void. Appellant, in support of her appeal, assigns numerous alleged errors, they being substantially a statement of the grounds set forth in the motion, and alleges that in sustaining same error was committed. Concededly, if the original judgment was void for any of the reasons urged, then, so far as the order vacating was concerned, no error was committed. The question for determination is whether, based upon any of the alleged grounds of the motion, the judgment was void. [1] I. Does the fact that the original notice was served by appellant's attorney void the judgment? (The matter of the appearance will be considered later.) Section 11058, Code of 1939, in effect at the time in question, provides: "The notice may be served by any person not a party to the action." Whether or not an attorney in a case is a "party to the action" within the meaning of the statute has not been directly before this court. In Schroeder v. District Court, 213 Iowa 814, 239 N.W. 806, it is held that notice of hearing of a claim against an estate may be served by an attorney for claimant, but the court therein clearly states that the question there raised is not "who" may serve the notice, but rather "how" it should be served. In Gollobitsch v. Rainbow, 84 Iowa 567, 51 N.W. 48, this court held that where a sheriff was a party to the action, service by his deputy was insufficient. This was based upon Page 965 the theory of privity. (We would direct attention to what appears to be a mistake, with reference to the Gollobitsch case, supra, as it is cited in the Schroeder case page 816, supra. There it is said the notice was served by the attorney, which is not the fact.) As to who is a "party to the action" has not been definitely passed upon by this court. For the nearest approach to it, see Dean v. Clapp, 221 Iowa 1270, 268 N.W. 56. However, on the question of "who are parties", Professor Greenleaf in an oft-quoted passage (1 Greenleaf on Evidence, Sixteenth Ed., section 523) says: "Under the term parties, in this connection, the law includes all who are directly interested in the subject-matter, and had a right to make defense, or to control the proceedings, and to appeal from the judgment. This right involves also the right to adduce testimony, and to cross-examine the witnesses adduced on the other side. Persons not having these rights are regarded as strangers to the cause." Using the above definition as a yardstick, it is self-apparent that an attorney in the action is not a party to the action. The service of the notice in the instant case was sufficient to confer jurisdiction over the person and there is no merit in this part of the motion. It might be here noted that section 11058, supra, has now been superseded by Rule 52, Rules of Civil Procedure, which specifically forbids service by an attorney for a party to the action. [2] II. Appellee was a minor. This fact was not brought to the court's attention and no guardian ad litem was appointed. Does this void the judgment? Our answer is no. This is not a new question. Section 10997, Code of 1939, provides that "No judgment can be rendered against a minor until after a defense by a guardian." In Equitable Life Ins. Co. v. Cook, 229 Iowa 911, 914, 295 N.W. 428, 429, we said: "The court had jurisdiction of the minors through service of original notice in the foreclosure proceedings, and the failure to interpose a defense for the minors was an irregularity only. Page 966 The judgment and decree was binding on the minors until vacated by direct proceedings." In Beardsley v. Clark, 229 Iowa 601, 604, 294 N.W. 887, 889, we said: "The entry of judgment against appellant while a minor, without a defense having been made by a guardian, did not render the judgment void but only voidable, and appellant was not entitled to have a new trial unless he showed that he had a good defense to the action." See, also, Reints v. Engle, 130 Iowa 726, 107 N.W. 947; Drake v. Hanshaw, 47 Iowa 291; 43 C.J.S., Infants, section 108. [3, 4] III. While an attorney appeared for appellee, it is alleged that he did so without authority. Nowhere in the record is there any denial of the authority, except as it is stated in the motion. The court having jurisdiction by the service of the notice, the question of the appearance is immaterial. However, see Sloan v. Jepson, 217 Iowa 1082, 1084, 252 N.W. 535, where we say: "It is presumed as a matter of law that where an attorney appears for a party to an action he has authority to do so." See, also, Burns v. Prudential Ins. Co., 229 Iowa 616, 294 N.W. 906; Milne v. Van Buskirk, 9 Iowa 558. [5] IV. Another ground in the motion is the failure to file an affidavit as to military service. Assuming that appellee was within the scope of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. Appendix, section 520, we have recently answered this question adverse to appellee. In Bristow v. Pagano,238 Iowa 1075, 29 N.W.2d 423, we held that the affidavit is not jurisdictional. There is no merit to this claim. [6] V. Appellant further asserts that, the judgment being merely irregular, the court had no authority to grant the relief asked. It will be noted the judgment was entered July 2, 1942. Appellee attained his majority by marriage in August 1942. He was discharged from the military service in 1945, and this Page 967 action was not commenced until August 1947 by the filing of a motion. Rule 252, Rules of Civil Procedure, provides that when a petition is filed under Rule 253, the court may vacate a final judgment for irregularity or erroneous proceedings against a minor. Rule 253 provides that the petition must be filed within a year after the rendition of the judgment and allege a meritorious defense. It is clear that, the original judgment being irregular only, and no action to vacate or correct having been filed until more than five years thereafter, the trial court exceeded its authority in vacating the same. [7, 8] Appellee, in addition to asserting that the judgment was void as a basis for sustaining the action of the trial court, states that the injunction against the Department of Public Safety is proper. He asserts that sections 321.275-321.279, inclusive, were repealed by section 35, chapter 172, Acts of the Fifty-second General Assembly, and there is no authority in the Department of Public Safety to revoke or suspend his license. He cites section 36 of said chapter for his authority. We would direct attention to section 41, thereof, which states: "This act shall be in full force and effect beginning October 1, 1947." Also, to section 35, which states: "Sections * * * (321.275) * * * and (321.279) * * * Code 1946, are hereby repealed except with respect to any accident or judgment arising therefrom * * * prior to the effective date of this act." (Italics added.) Furthermore, under the record no notice of the action was served upon the Department of Public Safety and we have specifically held that a judgment without service of an original notice is void. See Nibeck v. Reidy, 171 Iowa 54, 153 N.W. 186. For the reasons above set forth the judgment of the trial court should be and is reversed. — Reversed. All JUSTICES concur. *Page 968	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431331/	This is an action in equity, to restrain the enforcement of a chattel mortgage, and for other relief. 1. SALES: Considered in the light of established procedure remedies of and the rules governing the same, the nature and buyer: can- scope of the remedy sought are, to say the cellation of least, not easy of ascertainment. The note: burden transaction out of which the action arose may be of proof. stated about as follows: Charles E. Rogers in 1924 was engaged in the taxicab business in the city of Davenport, under the name and designation of the De Luxe Cab Company. Defendant, appellee herein, was engaged in the business of buying and selling used and rebuilt taxicabs in the city of Chicago. Following some correspondence between the parties, Rogers, now deceased, accompanied by an automobile mechanic, went to Chicago, on November 25, 1924, to purchase two Model-M rebuilt taxicabs. Appellee had none ready on that date for delivery, and a written contract was entered into between the parties, the material part of which is as follows: "Please deliver as soon as possible to the undersigned 2 Model M rebuilt taxicabs; Color Combination Standard Delux color, which I have purchased with the understanding that this vehicle is sold`as is.' * * " Printed at the bottom of the page is the following: "Note: All cars sold `as is' and shown and are not guaranteed as to condition, completeness or performance." The foregoing portion of the contract was printed. Below the above "note," the following notation is written in ink: "Note: If these cars are not up to Mr. Rogers' expectations, we are to refund this deposit to him and cancel order." The contract, which was executed in duplicate, was signed "Chas. E. Rogers, Purchaser," "R.F. Hale, Salesman." The price, terms, etc., were written in the body of the instrument. The price agreed upon for the two taxicabs was $1,915.50, which was to be paid by the delivery by Rogers of two Velie sedans to appellee at an agreed price of $350 each, and by the execution of six notes for $194.25 each, maturing one each month after date. The purchase was consummated on December 19th, on which date the two Velie sedans were delivered to appellee, and the notes and the mortgage upon the two rebuilt taxicabs to secure the payment thereof executed. The two rebuilt cabs Page 559 were driven by Rogers, or those in his employ, from Chicago to Davenport. None of the notes were paid by the purchaser. The petition was filed February 24, 1925. The execution of the contract of November 25th, and of the notes and mortgage, and the delivery and exchange of the sedans and of the taxicabs, are all alleged therein. It is further alleged that the same were obtained by the false and fraudulent representations of appellee as to the condition, quality, value, and character of the two Model-M taxicabs. It is charged that they were not rebuilt, that they were defective in many particulars, and that they were, in effect, of little value. The prayer of the petition is as follows: "Wherefore, plaintiff prays for a decree of this court compelling defendants to come to an account with plaintiff over the value of the said cabs, the two Velies and the two yellow cabs, and that the court will cancel and declare void the contracts, debts, obligations, notes, and mortgages represented by Exhibits `A' and `B,' and order and compel defendants to surrender the same up for cancellation, and declare that no debt exists, and that said Yellow Cabs are fully paid for, and that plaintiff be given judgment for the residue." The answer of appellee to the petition admitted the execution of the several instruments of writing, and the delivery and exchange of the taxicabs and the Velie sedans, and alleged that the former were rebuilt, and in all respects complied with the contract of purchase. By way of counterclaim, the defendant asked judgment upon the six notes, and for the foreclosure of the lien of the chattel mortgage. The court dismissed the plaintiff's petition, and entered judgment and decree on the counterclaim, as prayed. Except the claim of Rogers that he offered to return the taxicabs to appellee before he left Chicago on December 20th, no offer to return the same appears to have been made. His testimony on this point is denied by appellee. They were in the plaintiff's possession at the time of the trial. To effect a rescission of the contract, it was incumbent upon Rogers to do what he could to place appellee in statu quo. The plaintiff alleged in his petition that he was willing to pay whatever amount the court found was rightfully due appellee, and to do equity. The relief sought, as we interpret appellant's pleadings, is the Page 560 cancellation of the notes and mortgage, upon the ground that they were fully paid, and an accounting by appellee of the Velie sedans traded to him. Judgment for damages for loss to appellant's business is also asked. Before we proceed to a brief discussion of the law, attention should be called to the conflict in the evidence as to the terms of the contract executed November 25th. As stated, two instruments were signed by the parties. When introduced in evidence, the one delivered to Rogers disclosed that the words "as is," printed in two places in the contract, and the word "not," immediately preceding the word "guarantee" in the note at the bottom of the page, were erased. The changes are indicated by the italics in the portion of the contract quoted. There were no erasures on the copy presented and introduced by appellee. The effect of the changes in the contract is apparent. The altered copy imports a warranty; whereas, by the terms of the other, there was no warranty. We will refer later to the evidence of the respective parties on this point. If there was a warranty as to completeness or performance of the taxicabs, and the same was breached, a ground for the rescission of the contract arose. Section 9998, Code of 1927; Todd Shoe Co. v. Pierce Shoe Co.,179 Iowa 1383. The provisions of the foregoing section, so far as material, are as follows: "1. Where there is a breach of warranty by the seller, the buyer may, at his election: * * "d. Rescind the contract to sell or the sale and refuse to receive the goods, or, if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid." It is not clear from the petition whether appellant seeks to avail himself of the statute. Upon his theory of the contract, if there was a breach of the warranty claimed, he was in a position, by complying with the terms of the statute, to rescind the same. No question is raised by appellee as to the nature or scope of the remedy sought by appellant, nor was the petition assailed in any way. The theory of the pleader apparently was that there was such fraud on the part of appellee in the transaction, coupled with the alleged warranties in the contract, as to entitle appellant to have the notes and mortgage canceled, upon the ground that the $50 paid in cash at the time of the execution of Page 561 the contract, and the two Velie sedans delivered December 19th, exceeded the value of the two taxicabs, and that, therefore, the indebtedness was fully satisfied, and that a court of equity should so decree. This interpretation of the issues, which we will first discuss, makes a resort to the evidence necessary, to determine the relative rights of the parties. First, as to the contract. Rogers and the mechanic who accompanied him to Chicago both testified that the two purported copies thereof were filled in by Hale; that, when they were completed and handed to Rogers to sign, he insisted that the erasures shown in the copy introduced by him be made. The erasure of the words "as is" at the top of the page is shown on the original to have been made in lead pencil, and the other changes appear in ink. Hale and a clerk in his office both testified that no erasures were made in either copy of the contract at the time the same was executed. Mrs. Rogers, who appears in this court as appellant, testified also that she was present, and did not see the erasures made, but that the copy was changed when given to her husband. Both Hale and the clerk in his office testified that the mechanic was not present when the instruments were signed. Rogers was very positive in his testimony that he first discovered the words "as is" at the top of the contract, and insisted upon their being erased; that, later, he discovered the same words at the bottom of the contract, and again demanded that they be erased therefrom. It is significant in this connection that one so observing and careful should have neglected to see to it that both copies were changed. Rogers testified that he refused to sign until the change was made; that, before he signed, appellee told him that the copies were exactly alike. If the changes in the copy delivered by appellee to appellant were made by the former, then clearly he is bound thereby. No possible advantage could have come to him by a failure on his part to conform both copies to the actual agreement between the parties, particularly under the facts of this case. Appellant at all times stood on the allegations of the petition, and must prevail, if at all, upon the cause of action therein stated. If we have correctly interpreted the issues tendered therein, the court at best, if fraud or a breach of the warranties be found, could decree the cancellation of the notes and mortgage, Page 562 upon satisfactory proof that the value of the taxicabs purchased was not greater than the actual or agreed value of the Velie sedans plus the cash payment of $50. If the value of the taxicabs was greater than the cash paid, plus the value of the Velie sedans, a balance would be due appellee on the notes, and they could not be canceled. Evidence was introduced on both sides as to the market value of the taxicabs, and also of the sedans. This evidence was conflicting. Hale testified that he sold one of the sedans for $40, and the other for less than the agreed value. He also testified positively that the taxicabs were rebuilt at an actual expense to him of $689.45 for one and $511.63 for the other. The only contradiction of this evidence is the testimony of experts as to the condition of the vehicles some time later. The evidence of the experts tended to show that, if the taxicabs were rebuilt, both the material and the workmanship employed therein were of poor quality, and that they were not in good working condition, but defective in many particulars. The court cannot find, however, upon the evidence introduced, that the taxicabs were not in fact rebuilt, or that their value did not exceed the value of the sedans and the cash payment. The use of poor material and poor workmanship in the rebuilding of the taxicabs bears only upon the question of their value, and not upon the issue as to whether they were in fact rebuilt. We are satisfied from the evidence that they were rebuilt. Appellant must likewise fail if the cause of action pleaded was the ordinary one for the rescission and cancellation of written instruments obtained by fraud, and because of a 2. SALES: breach of warranty. Appellant did not tender the rescission: taxicabs back to appellee, nor offer to do so. condition This was necessary to a rescission of the precedent. contract. In this view of the case, it becomes unnecessary to determine whether or not the erasures on the copy of the contract introduced by appellant were made by appellee before it was signed. We deem it proper, however, to say that, in our opinion, the evidence on behalf of the appellant fails to sustain his claim at this point by clear and satisfactory proof. The term "as is," as defined by one of the witnesses, refers to a used motor vehicle on which no labor has been performed or repairs of any kind made. The use of the term in the contract, therefore, means that the *Page 563 same is sold in the condition shown, without warranty. The taxicabs purchased by Rogers were to be rebuilt Model-Ms, and such the evidence shows were delivered to him. The record is voluminous, and much testimony was introduced by both parties that was not relevant to the issues tried. A recital thereof would avail nothing. After a careful study and analysis of the record, we are convinced that the conclusion of the district court was correct. It is, accordingly, affirmed. —Affirmed. EVANS, FAVILLE, KINDIG, and WAGNER, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431333/	The petition in this case was filed in the Polk County district court on August 10, 1931. The plaintiff in said petition sought to recover from the defendant the sum of $100,000, with interest, as damages, by reason of the publication of alleged slanderous statements contained in a letter written by the defendant, Earle E. Butler, to a party then living in the state of Florida. On September 8, 1931, the defendant filed a special appearance and an attack on the jurisdiction of the court, in which there is alleged, among other things, that there was no original notice served upon the defendant for the September, 1931, term of district court of Polk County, Iowa, but that a purported service of an original notice was made upon Mrs. Vera Leonard, who was employed as a maid in the household of Earle E. Butler, the defendant, said writ of service being in words and figures, to wit: "State of Iowa, Polk County, ss. "Received the within notice this 10 day of Aug., 1931, and on the 12 day of Aug., 1931, I personally served the same on the within named Earle E. Butler by leaving a copy at the house of Earle E. Butler, in the city of Des Moines, Des Moines Township, Polk County, Iowa, the same being his usual place of residence, with Vera Leonard a member of the family over fourteen years of age, said Earle E. Butler not found in Polk County, Iowa, after diligent search." The special appearance also contains the following: "The defendant further shows to the court that the said service is improper and illegal and does not confer any jurisdiction upon this court to hear, try and determine this cause and that the said Vera Leonard is not a member of the family of the defendant, and in support of said special appearance, there is hereto attached an affidavit of the said Vera Leonard referred to herein and which is made a part hereof. That the service of the Page 1125 original notice and the return thereon is defective and the court has no jurisdiction over this cause and against the defendant." The substance of the affidavit of Vera Leonard attached is that she was then of legal age and began working for the defendant about the middle of April, 1931; that she was employed as a maid and was paid by the week; that she was so employed as a maid on the day of this attempted service; that the officer asked at the Butler residence if Mr. Butler was at home and he was informed that he was not; that the officer came back the next day and handed her a paper; that he did not read the same to her. The affidavit contains the following: "I further state that I am not a member of Earl E. Butler's family and that my sole reason for being there is that I am employed and paid so much per week to do certain work in and about the household of Earl E. Butler. That I have no authority to sign any paper on behalf of Earl E. Butler or to accept service of any notice for him. I further state that when I am not employed, I make my home with my sister and that I consider my sister's home my place of residence while in the city of Des Moines. I further state that in working for Earl E. Butler, I have no definite contract of employment, but I can quit the service of Mr. Butler at any time or he can discharge me at any time that he sees fit for any purpose. I further state that I do not consider myself a member of his family and outside of the services that I perform for Mr. Butler, I am free to do with my time as I see fit." Thereafter, the said Vera Leonard, as the maker of an affidavit, was called for cross-examination under the statute. Parts of said cross-examination are as follows: "I worked for the family sometime during last year, and then left for a while and came back in April * * I have worked for the Butlers from sometime in May, 1930, until about the 1st of January, 1931. Then Mr. and Mrs. Butler went to Florida. During that time, I went back to L.S. Hill's where I was employed as a maid. I had been there for several years before I went to Butler's. I was there from January until in April, or about the first of May. When Mr. and Mrs. Butler came back from Florida, I went back to Butler's again in this apartment. I was so employed as a maid at Butler's on the 11th and 12th day Page 1126 of August, 1931. I don't know that I would call it living there, but I had my room there. I slept there every night. During my work, during the time I was employed by Mr. Butler, I had my sleeping quarters regularly in Mr. Butler's apartment. I was eating my meals there during the month of August, mostly, when I was there. * * I couldn't say whether Mr. and Mrs. Butler left on August 11th, because I don't know. I wasn't in the apartment when they left." It appears that this original notice was given by this maid to a brother of the defendant's, who was then in Des Moines. The witness further says: "Q. The family consists of Mr. and Mrs. Butler, a son and a daughter? A. Yes, sir." It further appears that the maid at that time had a sister living at 1206 15th St., Des Moines, and the maid testified that when not employed, she made her home with her sister. It also appears that she is listed in the city directory of Des Moines as living at 3217 Cottage Grove, where, in 1930, she made her home with L.S. Hill. This maid has been married and has three children living with her father and mother at Sabula, Iowa. At one point in the examination, she said: "Yes, sir, that [Sabula, Iowa,] is my home. I was born and raised there." It appears she is the sole support of these children, and she says: "I am in Des Moines earning my bread and butter for the purpose of supporting these children. I don't have any definite contract of employment with Mr. Butler, but only just an understanding that I would stay until they returned from Florida." She further says: "I am not adopted by Mr. Butler. No papers have been taken out to that effect. No attempt has ever been made. I come and go when I want to. I quit when I want to." The record shows that she was actually employed by the defendant's wife, although the defendant's check was used in paying her for her services. From the foregoing, which is illustrative of and which is the substance of the record, it will be noted that Mrs. Vera Leonard, the maid, occupied a more or less typical position as a domestic in the home of Mr. Butler. She had no fixed term of employment and received her pay by the week. She could leave any time and Page 1127 she could be discharged any time. As is customary under such circumstances, she had sleeping quarters in the house and ate most of her meals there, presumably in the kitchen or in the servants' dining room, as the case might be. At the time of the attempted service, Mr. and Mrs. Butler and the two children (both grown) had left the home and could not be found. The record does not disclose where they were at that time. The sole question before us for determination is whether, upon such a state of facts, under the law, the trial court obtained jurisdiction of the defendant. As previously noted, the trial court sustained the special appearance and dismissed the plaintiff's petition. [1] I. The statute we are called upon to interpret and which appears in the chapter on "Manner of Commencing Actions," is as follows: "11060. Method of Service. The notice shall be served as follows: "1. By reading it to the defendant or offering to do so in case he neglects or refuses to hear it read, and in either case by delivering him personally a copy thereof, or, if he refuses to receive it, offering to do so. "2. If not found within the county of his residence, or if, because of his sickness or other disability, personal service cannot be made upon him, by leaving a copy thereof at his usual place of residence with some member of his family over fourteen years of age, or with the person having the care and custody of him, or with the head of the family where he resides. "3. By taking an acknowledgment of the service indorsed thereon, dated and signed by the defendant." This is followed by Section 11061, which reads as follows: "11061. Return of personal service. If served personally, the return must state the time, manner, and place of making the service, and that a copy was delivered to defendant, or offered to be delivered. If made by leaving a copy with the family, it must state at whose house the same was left, and that it was the usual place of residence of the defendant, and the township, town, or city in which the house was situated, the name of the person with whom the same was left, or a sufficient reason for omitting to do Page 1128 so, and that such person was over fourteen years of age and was a member of the family." In Chapter 4 of the Code, entitled "Construction of Statutes," we find the following: "63. Rules. In the construction of the statutes, the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the general assembly, or repugnant to the context of the statute: * * * "2. Words and phrases. Words and phrases shall be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to such meaning. "64. Common-law rule of construction. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. Its provisions and all proceedings under it shall be liberally construed with a view to promote its objects and assist the parties in obtaining justice." In connection with the statutory provisions hereinbefore quoted, this court has spoken at various times in reference to the interpretation of such statutes as the one under consideration. In Hodges v. Brett, 4 G. Greene (Iowa) 345, in a case involving an original notice, this court said: "The only safe rule, in cases where jurisdiction depends upon the process, is to require a strict observance of the statute." In Bradley Mfg. Co. v. Burrhus, 135 Iowa 324, this court had under consideration a case of substituted service, such as the one at bar. In commenting upon the statutes, the court said: "The method of procedure is extraordinary in character, and allowable only because specifically authorized; and, in common with other legislative acts which mark a departure from the ordinary, the provisions must be strictly construed, in the sense, at least, that the operation thereof may not be abridged or extended by the courts." In Hass v. Leverton, 128 Iowa 79, this court had under consideration a substituted service on the defendant's wife, who was Page 1129 sixty-seven years of age and was unable to understand, read or write the English language. This court said: "But our statute merely requires that the notice be left `with some member of the family over 14 years of age;' * * and this is made equivalent to actual service, upon the supposition that such person sustains such a relation of confidence to the one sought to be served as that he will be likely to bring the notice to his attention and thereby effect precisely what actual service is intended to accomplish." In Whalen v. Cadman, 11 Iowa 226, this court had under consideration exemptions to the head of a family. The plaintiff brought an action for replevin for two horses and a set of harness which the plaintiff claims were exempt from execution. Before the seizure of the property, the plaintiff rented a farm and moved onto it with his brother and his brother's wife, the plaintiff being unmarried. The two brothers worked the farm on shares, with no express agreement as to the amount each was to receive. He procured the brother's wife to keep house for him, had the supervision of the house, and procured and furnished the necessaries for housekeeping and living. The court held that he was not the head of the family, and said: "In the case before us the married brother and his wife, in no proper sense belong to the family of the plaintiff. He had no control over them, except such as resulted purely and exclusively, front contract. He had no right to exact obedience from them or to direct their movements, except so far as their agreement bound them to take care of the house." In this connection, it will be borne in mind that under the established rules of interpretation in this state, exemption statutes are to be and are always liberally construed in favor of the exemption. Some other Iowa cases, while not directly in point, nevertheless have an indirect bearing on the exact point under consideration. For illustration, in Snyder v. Nixon, 188 Iowa 779, cited by the appellant, plaintiff sought to recover from the estate of her deceased father for services rendered to him. This court said: "The general rule is that, where one renders services of value Page 1130 to another, with his knowledge and consent, the presumption is that the one rendering the services expects to be compensated, and that the one to whom the services are rendered intends to pay for the same; and so the law implies a promise to pay. Where, however, the family relationship exists, between the one seeking to recover and the one sought to be charged, and services are rendered one to the other within the family, the presumption is that they were rendered gratuitously. This rests upon common experience, that members of the same family, while the family relationship exists, do not usually expect to be remunerated, and do not usually expect to make remuneration for services rendered by one to the other, rendered within the family circle. The duties are reciprocal, and the services are presumed to be reciprocal. A member of a family rendering services to another member of the same family, where the services rendered grow out of the reciprocal duties of that family relationship, and are within the scope and purpose of the family organization, cannot recover therefor, unless there is an express promise to pay for the services, or unless the showing made negatives the thought that they were gratuitous, or, that is, unless it is shown that they are rendered under such circumstances as makes it manifest that there was both an expectation of receiving remuneration and an intention of paying for the services." The appellant also cites the following cases: In re Estate of Bishop, 130 Iowa 250; Neasham v. McNair, 103 Iowa 695; Menefee v. Chesley, 98 Iowa 55; Linton v. Crosby, 56 Iowa 386; Arnold v. Waltz, 53 Iowa 706; Tyson v. Reynolds, 52 Iowa 431. We have examined these cases carefully and find none of them in point. Moreover, broadly speaking, many statements therein contained support appellee's position fully as much as they do the position of the appellant. In some of the cases, definitions are quoted which manifestly are not applicable to the case at bar. Numerous cases from other jurisdictions are cited by the appellant. One of them, at least, is by a nisi prius court; others are from intermediate courts, such as courts of appeal. These cases have all been carefully examined. Most of them will be found to have distinguishing differences in statutes or facts, and as to the others, we cannot agree with the reasoning therein contained. Page 1131 The appellant has cited in support of his position definitions from numerous dictionaries. We deem it unnecessary to analyze these definitions. Manifestly, many of them apply to literary uses made of the term "family;" others are now obsolete by reason of change in social conditions, or otherwise. Upon the whole record, we conclude that the language of the statute under consideration does not contemplate that a person whose sole contact with the family is that of an employee for hire is a member of the family. A close survey of existing conditions of which this court will take notice leads clearly to this conclusion. On the whole, no good purpose would be served in detailing them, and we deem further discussion unnecessary. [2] Appellant contends that the court erred in dismissing the plaintiff's petition. Suffice it to say that the court found that no defendant had been properly served; therefore the case was not pending, and it was proper to dismiss the petition. It follows that the trial court correctly ruled, and the cause must be, and is, — Affirmed. All the justices concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431335/	1 Principal and agent: TORTS OF AGENT: EXEMPLARY DAMAGES: LIABILITY OF PRINCIPAL. A principal is liable for the tortious act of his agent committed in the course of his duty and while acting within the scope of his employment, and when he has thus committed a wrong a joint action may be maintained against the principal and the agent; but a principal cannot be held for exemplary damages for the wanton act of the agent unless he participated in or ratified such act.2 Same: CORPORATIONS: TORTS: EXEMPLARY DAMAGES. Where the evidence tended to show that the agents of a corporation employed unlawful methods to destroy a competitor's business, with the knowledge and under the direction of its agents in charge thereof, for the purpose of increasing its business and controlling the field, the question of liability of the corporation for exemplary damages was for the jury.3 Same: CONSPIRACY: MALICE: INSTRUCTION. Where several parties enter into an unlawful conspiracy to do a wrongful act there can be no degrees of liability, but all concerned are liable for the consequences. Thus where a suit against a corporation and its agents to recover damages for illegal acts resulting in unfair competition was brought and tried on the theory that the injury resulted from a conspiracy, or that defendants or some of them acted unlawfully, the element of good faith was necessarily excluded, and refusal of an instruction requiring a finding of malice against all defendants before there could be an allowance of exemplary damages was proper.4 Corporations: LIABILITY FOR TORTS: JUDGMENT: EXCEPTIONS: REVIEW. A corporation is only liable for malicious acts by imputing to it the wrongful acts of its agents; and where the agents are not found VOL. 165 IA. — 40 Page 626 to have acted maliciously no malice can be imputed to the corporation as principal. But where the jury returned a verdict against the corporation itself, but exonerated its agent from liability from any malicious act, the correctness of which was not challenged by motion for judgment notwithstanding the verdict, or motion for new trial, and no instruction on the subject was asked, it became the duty of the court to enter judgment upon the verdict, and the error cannot be reviewed on appeal upon merely a general objection to the judgment. 5 Corporations: ASSIGNMENT OF CAUSE OF ACTION: COLLATERAL ATTACK: APPEAL: WAIVER OF ERROR. In an action on a claim by the assignee of a corporation the defendant cannot avail himself of the defense that the assignment was made at a special meeting of the directors of the corporation, by a bare majority of the board, the others not having been notified, whatever may have been the rights of creditors or stockholders of the corporation to question the validity of the assignment; and where this question was raised by requested instructions and assignments, though not argued on the appeal, it would not be considered on a subsequent appeal of the case. 6 Unlawful competition: "VOLUNTARY" SALE: INSTRUCTION. Where plaintiff alleged that defendant had destroyed its business by unfair competition, so that it was practically insolvent and was compelled to dispose of its remaining property to one of defendants at less than its value, and there was evidence tending to establish the claim, an instruction that if plaintiff voluntarily sold its property to defendant for an agreed price it could not recover damages for the loss, even if of greater value, was property refused; as it ignored the circumstances under which the sale was consummated and in effect told the jury that the transaction could only be considered as one in the ordinary course of trade.7 Exemplary damages: ASSIGNMENT: RECOVERY BY ASSIGNEE. A cause of action based upon tort and sounding in actual and exemplary damages is assignable; and the right to exemplary damages is not confined to the party wronged but may be recovered by his assignee.8 Exclusion of evidence: LEADING QUESTIONS. The exclusion of evidence because of a leading and suggestive question is not erroneous, although the evidence might have been admitted without error. I. This action is brought by the assignee of the Crystal Oil Company to recover damages for injury to the business of the Crystal Oil Company in consequence of alleged wrongful and illegal acts resulting in unfair and unlawful competition. It is charged that the defendants the Standard Oil Company, Milton Storer, John D. Stewart, and Lee Edgington entered into an unlawful conspiracy. for the purpose of doing the illegal acts which were pleaded, and that such conspiracy was fraudulently, maliciously, and unlawfully formed, and that, as a result of it, and the acts done thereunder, the Crystal Oil Company was driven out of business, and its business and property were because of it sacrificed and destroyed. Prayer was made for damages, actual and punitive. Issue was joined, there was a trial to a jury resulting in a verdict in favor of the plaintiff against the Standard Oil Company alone for $7,000, and no finding was made by the jury as to the other defendants. The trial court entered judgment on the verdict against the Standard Oil Company, and, construing the failure to find against the other defendants as, in effect, a finding in their favor, judgment was entered dismissing the petition as to each of said defendants, and awarding to them recovery of costs against the plaintiff. The Standard Oil Company appeals from the judgment against it. No appeal is taken from the judgment dismissing the petition as to the other defendants. Page 628 This case has once before been in this court (152 Iowa, 618), and the review of the testimony then made is in substantial accord with what is shown in the record on this appeal, varying, perhaps, in some features, but not to such an extent as to require that it should again be recited. In the former decision it was held that the evidence was such as to require the submission of the cause to the jury, and that a finding for plaintiff in actual and exemplary damages had support. The reversal of the case was because of a matter not going to the right of action and recovery, save as to the allowance of interest upon exemplary damages, and has no bearing upon the questions raised by this appeal. II. Many errors are assigned. At the close of the evidence the defendants moved for a directed verdict, which was overruled, and such ruling is challenged as being incorrect. After the appeal and reversal of the case defendants filed an amendment to their answer, setting up new averments as to the conduct of the Crystal Oil Company in the management of its business, not only in its relations to and methods with small dealers in oil, but also with the Standard Oil Company, and that by its actions the latter did nothing which was unfair in competition. The pleading itself but served as the basis of proof. It is now a sufficient answer to the claim of the appellant in this regard that, under the holding on the former appeal, the evidence was such as to require the submission of the cause to the jury. And that liability arises under such a state of facts as the evidence tends to show. SeeBoggs v. Duncan Schell Company, 143 Iowa, 481. III. It is claimed that there was error in the refusal by the trial court to give to the jury instructions Nos. 14 and 15 requested by the appellant. Instruction No. 14 was to the effect that no evidence had been offered showing or tending to show that the defendant the Standard Oil Company ever authorized the doing of any malicious or wanton act, or that it ever ratified such, if it was found that such was committed by the other defendants, and that, if the jury, under such Page 629 state of facts, found the plaintiff entitled to recover of the Standard Oil Company some sum as actual damages, there could not be any allowance of exemplary damages. The fifteenth instruction as requested was to the effect that, if the jury found that any one of the defendants did not act maliciously in the transactions complained of, exemplary damages could not, under such a finding, be allowed against any of the defendants. We can properly consider the questions raised by these instructions with other questions arising out of the verdict. Storer was the manager of the Des Moines branch of the Standard Oil Company at the time the acts were committed which are the basis of the claim in suit. Stewart was the city salesman, and Edgington was in charge of the retail department. All, therefore, were agents of the Standard Oil Company, and it does not appear from the evidence that what was done, and which serves as the basis of the complaint, was by the direction of any other person or persons than the agents named. Whatever acts were committed resulting in injury to plaintiff's assignor were the acts of the agents named, and only by imputing to the principal the malice of the agents, in acts done within the scope of their employment, can punitive liability of the principal arise. The verdict of the jury was against the Standard Oil Company alone. No special findings were returned indicating the amount allowed as actual damages, nor the amount, if any, allowed as exemplary damages, both of which were permitted under the instructions of the court. The failure by the jury to return a verdict, in terms, for or against the other defendants was treated by the trial court as a finding for them, and judgment was entered accordingly, from which no appeal has been taken. For the purpose of this case, then, such must be taken as an adjudication that said defendants were guilty of no acts which could serve as the basis of an award of damages against them, either actual or exemplary. It must then be determined what effect such an Page 630 adjudication has upon the liability of the principal, against whom judgment was entered. 1. PRINCIPAL AND AGENT: torts of agent: exemplary damages: liability of principal. That the master is liable for the consequences of a tort committed by the servant in the course of his duty, and while acting within the scope of his employment, is a rule established by many authorities. Moore v.Fitchburg Ry., 4 Gray 465 (64 Am. Dec. 83); Ramsden v. Boston R.R. Co., 104 Mass. 117 (6 Am. Rep. 200); Bass v. Chicago Ry.Co., 36 Wis. 463 (17 Am. Rep. 495). And when a tort has been committed by an agent within the line of his employment, a joint action may be maintained against the principal and the agent Hewitt v. Swift, 3 Allen (Mass.) 422; St. Louis, etc., R. R. Co. v. Dalby, 19 Ill. 374. But the principal cannot be held liable in exemplary damages for the wanton acts of the agent, unless it participated, either expressly or impliedly, or by conduct authorizing or approving the act, either before or after it was committed. Lightner Mining Co. v. Lane, 161 Cal. 689 (120 P. 771, Ann Cas. 1913C, 1093); Lake Shore M. S. Ry. v. Prentice, 147 U.S. 101 (13 Sup. Ct. 261, 37 L. Ed. 97); Haver v. Railroad Co.,64 N. J. Law, 312 (45 A. 593); Fohrmann v. Traction Co., 63 N. J. Law, 391 (43 A. 892); Wells v. Railroad Co., 82 Vt. 108 (71 A. 1103,137 Am. St. Rep. 987). 2. SAME: corporations: torts: exemplary damages. Recognizing that a corporation is impersonal, that it can act only through its agents, in the application of the foregoing rules there arises the question, in its relation to exemplary damages, as to where one must look as to the source of authority for the performance of the acts charged as a malicious tort. When it appears, as here, giving to the evidence the effect that it tends to show, and from which the jury alone should determine the fact, that the methods employed were with the knowledge of and under the general direction of the agents who were the representatives of their principal and in charge of its business, and that which was done being Page 631 for the sole purpose of increasing its business, and more nearly controlling the field, we think there was presented such a state of facts as warranted submitting to the jury the question of liability not only for actual but exemplary damages. 3. SAME: conspiracy: malice: instruction. As a result of that submission, there was returned the verdict which, as construed by the trial court, in effect exonerated the agents of all liability and wrong; and this fact presents the question raised by requested instruction No. 15, which in effect required a finding of malice against all defendants before exemplary damages could be allowed against any of them. In Moore v. Duke, 84 Vt. 401 (80 A. 194), cited by appellant, an action for trespass, it is stated that in cases based on tort, if more than one is made defendant, all must be shown to have been moved by a wanton desire to injure, citing Boutwell v. Marr, 71 Vt. 1 (42 A. 607,43 L.R.A. 803, 76 Am. St. Rep. 746). In the discussion of the question in Moore's case, supra, that court said: But since exemplary damages are predicated upon the animus of the one against whom they are claimed, it may happen, when two or more are defendants, that some are liable for exemplary damages and others only for compensatory. Some may be acting in good faith, while others . . . maliciously. In such cases, while all are liable for the full amount of the actual injury which the plaintiff has suffered from the joint tort, . . . exemplary damages are to be assessed according to the guilt of the most innocent of the defendants. And if any of these was acting in good faith, and so not liable for punitive damages, none can be awarded in the suit. Supporting such rule, that court cites Fohrmann v. Cons. Trac.Co., 63 N. J. Law, 391 (43 A. 892); Haver v. Railway Co.,64 N. J. Law, 312 (45 A. 593). The reason for the rule is that, where a cause of action against defendants Page 632 jointly sued for a malicious tort is submitted to the jury, but one verdict will be returned, if liability is established. That verdict will represent the finding of the jury as to the plaintiff's right of recovery on the whole case. It is manifest that, if one or more defendants are guiltless of malice, a verdict holding them for exemplary damages will be unjust, in that it fixes upon them a liability which they have not incurred. But when defendants are charged as joint tortfeasors, by reason of a conspiracy or common unlawful purpose, we think a different rule must govern. This case was brought and tried upon the theory that the damages for which claim was made resulted from a conspiracy, or that the defendants, or some of them, committed unlawful acts resulting in injury. In the third instruction given by the trial court this language appears: "However, if you fail to find, under the facts and circumstances of this case, that there was a conspiracy as claimed by plaintiff, then each defendant is liable only for such acts, if any, as you find he has done or authorized to be done." A fair construction of this language is that, if a conspiracy was shown, all who were concerned in it would be liable for its results; if not established,-that the liability for unlawful acts could only be charged against the defendants who did or authorized them. In subsequent instructions the trial court stated the rule that actual damages could be recovered against the defendant or defendants by or through whose wrongful acts the damages were caused. In a following instruction the jury was told that, if actual damages were found, and that they were caused by willful and malicious acts as charged, then exemplary damages could be allowed to punish the defendants guilty of the malicious and wrongful acts. The idea which runs through the instructions, and which has expression in those from which we have quoted, is that, if several persons enter into an unlawful enterprise or a conspiracy to commit an unlawful act, each one concerned in and participating in it will be chargeable with the malice which prompted it. This rule is stated Page 633 in Young v. Gormley, 119 Iowa, 547; Reizenstein v. Clark, 104 Iowa, 287;Burns v. Campbell, 71 Ala. 271; Nightingale v. Scannell, 18 Cal. 315,13 Cyc. 116. We think there is a clear distinction between the rule thus stated and that announced in Moore v. Duke, supra, in that, where a conspiracy or common unlawful purpose is shown, there can be as among the participants no degrees of liability, but all who are actually concerned in the unlawful purpose are liable for its consequences; while in theMoore case, as a reason for the rule, it is stated that in an action for trespass, such as was then under consideration, some may be acting in good faith and others maliciously. This case being based upon one or the other of two theories, either of which because of the nature of the charge necessarily excludes the element of good faith, it was not error to refuse to instruct as requested in instruction No. 15. 4. CORPORATIONS: liability for torts: Judgment: exceptions: review. IV. As we have earlier noted, the verdict of the jury, as construed by the trial court in its entry of judgment, exonerated the agents of the appellant from liability, in effect finding that they, nor none of them, had been guilty of malicious or wrongful acts warranting a recovery against them. It is contended by the appellant that under such a record it was error on the part of the trial court to enter judgment against the appellant, for the reason that its liability could only arise from the wrongful acts of its agents as charged, there being no evidence to connect it with the acts charged other than through its agents who were named; and that being liable only for imputed wrong, if the finding of the jury relieved the only persons through or from whose acts the imputation of wrong on its part could arise, such would necessarily relieve it. This court has held that a corporation can only be held liable for a malicious act by imputing to it the wrong of its agent, and, if the agent be found not to have acted maliciously, there is no malice to impute to the corporation principal. White v. Text-BookCo., 150 Iowa, 31. The Page 634 rule also has the support of many authorities of other states.McGinnis v. C., R. I. P. Ry., 200 Mo. 347 (98 S.W. 590, 9 L.R.A. [N. S.] 880, 118 Am. St. Rep. 661, 9 Ann. Cas. 656); Indiana Company v.Glass Co., 165 Ind. 361 (75 N.E. 649). But a careful examination of the record fails to show that the question now raised was ever presented to the trial court. Following the return of the verdict, and in the discharge of its formal and required duty, judgment was entered by the court in accordance with the finding of the jury against the appellant, as definitely named, and in favor of the other defendants. The right to enter the judgment was in no way challenged by the appellant, either by motion for judgment notwithstanding the verdict or for a new trial. All that is shown is that after the entry of judgment "all parties duly excepted." But the entry of the judgment upon the records of the court is but the formal action of the clerk, under code, section 3784. We think the exception then made cannot serve to protect the litigant as against alleged errors previously committed; but to save their rights they must have proceeded in a timely way. The right to recover against the appellant, in the event of a failure to find the other defendants, its agents, liable, was presented in no instruction offered by the appellant, and there is in the record nothing to indicate that the attention of the trial court was ever called to the question. Had the matter been presented to the trial court after the verdict, by proper motion the appellant would thereby have avoided the rule of code, section 4105, which states "that a judgment or order shall not be reversed for an error which can be corrected on motion in an inferior court, until such motion has been there made and overruled." Having failed to so move, the penalty for which is not canceled by the saving of a general exception upon the entry of judgment, the error cannot be urged on appeal. Riley v.Bell, 120 Iowa, 618; Ketchum v. Larkin, 88 Iowa, 215; Garvin v.Cannon, 53 Iowa, 716. 5. CORPORATIONS: assignment of cause of action collateral attack appeal waiver of error. V. It appears that an assignment and sale of the property Page 635 of the Crystal Oil Company was made to Clinton L. Nourse in 1899, under which, after specifically describing the various items, and expressly excluding therefrom the accounts and bills receivable due the Crystal Oil Company, in comprehensive terms after the particular description the bill of sale stated, "the intention being hereby to convey to the said Clinton L. Nourse all of the property of whatever name or nature of the Crystal Oil Company, except its book accounts and bills receivable." The record shows that plaintiff, the appellee, as trustee, took from the Crystal Oil Company an assignment of its claim against the appellant and its codefendants, under which he was, in consideration of his services in prosecuting this suit, to receive one-half of the recovery. It is now claimed that under the alleged assignment to Dunshee no rights passed, for that it was not authorized at a regular meeting of the board of directors, but at a special meeting at which only a bare majority of the board were present; the other directors not having had notice of the meeting. Upon this and collateral questions of ownership of the claim growing out of the facts, we find it unnecessary to give consideration upon their merits, although it is proper to say that the question as to the right to appellee to maintain the suit was not directly raised by the pleadings, excepting by general denial. Nor was this a defense which could be urged by the appellant. Whatever may have been the rights of creditors or stockholders in this corporation to question the validity of the assignment, it covered a claimed right of action, and as to all other parties vested in the holder the right to sue. Small v. C., R. I. P. Ry., 55 Iowa, 582; Miller v. Iowa Land Co., 56 Iowa, 374;Carpenter v. M. W. A., 142 Iowa, 411. But the questions now raised on this branch of the case were urged on the first trial by offered instruction, and in other ways. The trial court then held against the contention of the appellant,. and instructed the jury that the plaintiff was entitled to maintain the action. These facts clearly appear Page 636 from the record in the first appeal, which is before us. On that appeal, while the question now raised was included in the assignment of errors, it was not argued nor insisted upon. Under such conditions we hold that the appellant has not now the right to be heard upon these questions, as it was its duty to urge them on the former appeal. Hensley v. DavidsonBros., 143 Iowa, 742; Zalesky v. Home Ins. Co., 114 Iowa, 516. 6. UNLAWFUL COMPETITION: voluntary sale: instruction. VI. Instruction No. 4 requested by the appellant, and which was refused, was to the effect that "the evidence shows, without dispute, that the Crystal Oil Company voluntarily sold its horses, wagons, and other property for the sum of $2,100, and you are therefore instructed that the plaintiff cannot re-cover any damages for loss upon or for said property, even though you should find from the evidence that its value was greater than $2,100." Instruction No. 5 requested by the appellant was based upon the same thought, referring to this claim in the evidence that the value of the property sold for $2,100 was approximately $17,000, and stated that "there was no evidence in the record which would warrant the jury in allowing damages upon the claim that the Crystal Oil Company was compelled to sell its assets for less than they were worth." Both of the requested instructions were refused, and error is assigned on that ground. The charge in the petition as to this branch of the case was that in pursuance of the conspiracy, as alleged, the defendants harassed the Crystal Oil Company until its losses had become so great, and its business reduced and damaged to such an extent, that it was brought near insolvency, and was compelled by reason of the malicious and wrongful acts charged to sell the property it had on hand at a great sacrifice, to wit: Property of the value of $15,000 for $2,100. There was in the record evidence tending to establish this claim, although included in the total value thus fixed was the item of good will; and the evidence also shows, and it is Page 637 conceded, that the sale was made to a representative of the appellant, and for its benefit. The evidence also tended to show that some of the property thus sold consisted of horses, harness, and equipment which have a general market value, and of wagons, tanks, sheds, etc., fitted for the oil business, and that the value of such articles exceeded the amount received under the contract of sale. The basis of instruction No. 4 as requested is that, if one voluntarily sells property for less than its value in the open market, a cause of action does not arise for the difference between the selling price and fair value against one by whose wrong the sale was caused to be made. The offered instruction necessarily presumes as a basis for the rule it stated that the transaction resulting in the sale was voluntarily entered into by the Crystal Oil Company. "Voluntarily," as defined by Webster's International Dictionary, is "proceeding from the will; produced in or by an act of choice; unconstrained by another's interference; spontaneous; acting of one's self; free." And as technically used in the law it has been defined by the same authority as "acting of one's free will, without valuable consideration; acting or done without any present legal obligation to do the thing done, or any such obligation that can accrue from the existing state of affairs." This latter definition is recognized as correct in holding that a voluntary conveyance is made without any substantial consideration.Trumbell v. Hewitt, 62 Conn. 448 (26 A. 350); Knight v. Kidder (Me.)1 A. 142; Kimball v. Fenner, 12 N. H. 248. "Voluntarily," as applied to personal action, is held to mean of one's free will, without being moved, influenced, or impelled by others. Kearney v. Fitzgerald,43 Iowa, 586; Hardin v. Hardin, 17 Ala. 250 (52 Am. Dec. 170); Gates v.Hester, 81 Ala. 357 (1 So. 848). We think that, in the light of the theory upon which this case was tried, and which had support in the evidence, the effect of the offered instruction would have been to tell the jury that the sale by the Crystal Oil Company was unaffected Page 638 by any act of the appellant, and could only be considered as a transaction in the ordinary course of trade or dealing. It left out of proper consideration the circumstances under which the sale was made, the claimed condition of financial desperation on the part of the Crystal Oil Company, the offer to purchase the property by the appellant at the end of a successful campaign in which it was victor and its rival vanquished, the requirement on the part of the offering purchaser being that for its offer there must be a conveyance of all the property of the Crystal Oil Company, and the action of the board of directors of that company, which, as expressed by one of them, was that "we concluded to throw up the sponge, and sell out to the Standard Oil Company," all of which we think were proper as bearing upon the question as to whether the sale was voluntarily made. Under such conditions it could not be said that the Crystal Oil Company was necessarily driven to the open market to sell its property. More than this, when we consider that judgment could only have been entered against the appellant upon proof of its wrongful act through its agents, and when, as a result of such act, it secures by purchase the property of its rival at a price alleged to be much less than its real value, and benefits of the purchase accruing solely to it, and under the claims of plaintiff, to which it was not lawfully entitled, complaint cannot properly be made that the benefits thus wrongfully secured cannot be the basis of a claim against it. There was no error in refusing to give offered instruction No. 4. The conclusion we have reached as to this instruction applies to and governs instruction No. 5 requested by the appellant. VII. Instruction No. 11 given by the trial court is complained of for the reason that it told the jury that, if plaintiff was entitled to recover, he should be allowed his actual damages, not exceeding $15,000, to make good the financial loss of the Crystal Oil Company suffered as a result of the wrongful acts of the defendants. The particular criticism is that it nowhere precluded the jury from allowing as damages Page 639 the amount which they might find the property covered by the bill of sale exceeded in value the amount paid for it. We have held above that that was not necessarily the rule which should govern the case in its submission to the jury, and, while the trial court might properly in more detail have stated the proper measure of damages, the offered instructions gave to it no assistance upon that question. It should also be stated that the instruction as given was substantially the same as that given in the third division of instruction No. 8 upon the former trial of the case, and which had application to evidence then in the record substantially the same as now appears upon the question now presented. There was no error of which complaint may now be made in giving instruction No. 11. 7. EXEMPLARY DAMAGES: assignment: recovery by assignee. VIII. Error is urged against an instruction which, under certain conditions, allowed the recovery of exemplary damages, and for the refusal of a requested instruction that the assignee of the Crystal Oil Company was not entitled to recover such damages. The particular point is that damages of that nature, being by way of punishment only, are peculiarly the right of the one against whom the wrong was committed, and cannot be assigned. The general rule governing the right of assignment of causes of action arising out of tort is stated, in 4 Cyc. 23, to be that the test most generally applied is that, if the right of action arising from the act is in its nature such that it will, upon the death of the party aggrieved, survive to his personal representatives, it is assignable. Code, section 3443, provides that all causes of action survive, and may be brought by the personal representative. We think it follows that an action based upon tort sounding in actual and exemplary damages is a proper subject of assignment, and the right of the assignee in this case to recover was expressly recognized on the former appeal. See, also,Union Mill Co. v. Prenzler, 100 Iowa, 540. Page 640 IX. Error is urged in the sustaining of objections to questions propounded on cross-examination by the appellant of A. L. Clinite, manager of the Crystal Oil Company. The questions were as to whether he had talked to his drivers about the red cards displayed by customers of the Standard Oil Company, and the conduct of his drivers towards the customers of the rival company. While the evidence would no doubt have been competent as defensive matter, and as bearing upon the question of unfair competition, and also the question of malice, under the record before us we think the trial court did not err in excluding it as not being crossexamination. 8. EXCLUSION OF EVIDENCE: leading questions. X. Evidence was offered and introduced on the part of the appellant to the effect that it was compelled to meet active competition with the gas and electric companies, and that the electric people were more active than the gas company. A witness testifying upon this subject was asked as to the activities of the gas company in laying mains, and pushing its business into new territory, and over a greater territory than it had before occupied. The question was objected to as incompetent, immaterial, leading, and suggestive, and an answer was not permitted. This is claimed as error. We think the question as propounded came well within the objection, as being leading and suggestive, and, while it might, without error, have been permitted to be answered, its exclusion was not error. The judgment of the trial court is — Affirmed. LADD, C. J., and DEEMER and GAYNOR, JJ., concur. *Page 711	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431336/	This action was instituted in December 1945, for the appointment of a guardian of the property of W.W. Miller under section 670.2, Code of Iowa, 1946 (section 12614, Code of 1939). Plaintiffs are children of defendant. Another son, Clarence, was a witness for plaintiffs, and a daughter, Mary Berney, assisted defendant. The amended petition alleged that during the past year and one half defendant had become a person of such unsoundness of mind as to be incompetent to manage his business affairs. A jury was waived and the cause was tried to the court on the issue of the appointment of a permanent guardian. From the judgment appointing such guardian defendant has appealed. Until 1943 appellant engaged in farming near Cummings in Warren county. He was industrious, careful, and successful. His wife died some years ago. Since 1943 he has lived most of the time at the home of his daughter, Mary Berney, who is in the real-estate business in Des Moines. At the time of the trial he was seventy-eight years old and his vision and hearing had become impaired. His property then consisted of his one-hundred-sixty-acre-farm in Warren county, a house in West Des Moines which rented for $30 per month, a California chicken ranch, a Ford truck, five war savings bonds, each worth $750 plus interest, rent notes, notes of several of his children, and a small balance in a checking account. Appellant's physician, Dr. Sternagel, testified he first observed a change in appellant's mental condition about four years previously when appellant appeared unable to grasp the idea why he should wear a truss or how it should be worn. Later he noticed appellant's mental deterioration as evidenced by "the forgetfulness that he had paid his bills at the office, the inability to remember when he had an appointment, and the failure to call for prescriptions that were left for him at Page 981 the drugstore." The doctor testified he made further observations and arrived at certain professional opinions. He advised appellant "he should have someone to help him with his financial affairs, and particularly when traveling a long ways from home." He testified that was his professional opinion and conclusion. The doctor testified he had an opinion as to whether or not appellant was suffering from cerebral arteriosclerosis. He did not state that opinion in so many words. He testified the existence of that ailment would affect an elderly person's competency to conduct business generally and that it would have a bearing upon appellant's ability to drive an automobile only as it affects the reasoning, hearing, sight, and judgment. Dr. Henry, who examined appellant, testified he had definite degenerative changes in his nervous system and that although people of his age have senile changes they do not have the degree of changes appellant has; he has pathological changes in his nervous system. "Summary: This man, seventy-eight, is showing senile changes both physically and mentally. His nervous system shows degenerative changes. It would appear that the nervous changes were aggravated by an anemia, possibly a pernicious anemia. It appears he is reaching a state of moderate decline in his mental capacity. These changes are shown by his rather childish resignation, tendency to become detached and forgetful. His memory for many events is good, but his dependability to be alert to situations is questionable. The diagnosis is, anemia, possibly pernicious in type, senile deterioration." The doctor testified senile deterioration lessens the competency of an individual and that appellant's trustfulness and childish manner indicated senile deterioration in which he had a tendency to efface himself and follow the direction of others, rather trusting implicitly without asserting himself. The testimony of appellees and their lay witnesses referred largely to appellant's loss of memory, judgment, and responsibility. Some occurrences shown of record are the following: Appellant was in California during the winter of 1944-1945. He instructed his son-in-law Collins to sell his corn. Page 982 Collins did so and sent appellant the buyer's check for $1,200. A month later appellant wrote Collins to sell the corn. An investigation disclosed appellant had cashed the check. Considerable correspondence followed before appellant became satisfied he had received the check. He bought a California chicken ranch, on a lot fifty-five feet wide, for about $3,500. His brother, who lived near by, had told him the seller had been offering it for $1,250 and warned him not to "get stuck." Appellant says the price he paid included certain equipment and chickens not included in the $1,250 price. After buying more chickens and making certain repairs and improvements he disposed of his flock and rented the buildings. In the summer of 1945 appellant, after carrying for months two checks amounting to several hundred dollars, threw them into a wastebasket, from which they were afterward retrieved by Mary Berney. Appellant sold and was paid for an article of furniture. A day or two later he attempted to sell the same article to the same person. Appellant held a recorded $150 note of appellee Mabel Laughlin and her husband. He tried to collect the interest before it was due. Later he requested and was given a new note and he returned the old note. Then he tore up the new note, saying he had it recorded, which was incorrect. Still later he asked for the note and was reminded he had surrendered the old note and destroyed the new note. Appellant deposited a check for $1,000 with Judge Linville with a bid on a farm which was to be sold under court order. He does not remember giving this check or whether it was returned to him. Appellant imagines his son-in-law Collins stole his will from him at a bank. The record shows the will is and has been held by the attorney who prepared it for appellant and never has been in the possession of any other person. During the past few years he has had substantial receipts from rentals and from sales of property. However, in 1945 several of his checks were returned on account of insufficient Page 983 funds. On one such occasion he cashed a $750 war savings bond to replenish his account, saying to his daughter Mrs. Laughlin, "don't tell Mary." In 1945 appellant had a series of automobile and truck accidents. His driver's license, which was later revoked, permitted daytime driving only but he drove at all hours. He had let his automobile insurance lapse but Mary Berney discovered the lapsation card in his pocket and sent a check to revive it. His last accident was about October 28th, when he started to drive from Des Moines to Cedar Rapids. He testified: "I was driving in the nighttime I couldn't get anybody to go with me, I wanted to go pheasant hunting so I just started out." He arrived at the home of his son Clarence in Cedar Rapids with blood on his face and clothing and refused to tell what had happened, "because you will tell Mary." Later he said he had hit a truck, near Marshalltown, and wrecked his car. The next day he returned to Des Moines by bus. He gave the ticket agent a bill and the agent pushed out his ticket, some currency and silver. Appellant picked up the silver but refused to take the paper money, insisting, " * * it ain't mine." The ticket man said, "It is yours. You better watch yourself old man somebody is going to take you." About December 1, 1945, appellant bought another used car without testing it. Apparently it was defective. Later it was returned to the seller. Appellant also owned and drove a Ford truck, which at the time of the trial was under repair necessitated by an accident. In July 1945, a group meeting of six of the seven children (the absent one lives in California) and appellant was held at the home of Mary Berney for the purpose of making some provision to handle appellant's affairs. They discussed a guardianship. Appellant admitted he needed someone to help with his business but wanted to continue to handle his business and money as he desired. Other such meetings were held later at the home of appellee Collins. Mary Berney was invited but did not attend. She testified she thought it her duty to Page 984 attend the first meeting because she felt something should be done in assisting her father in handling his money and doing his business, and that she still felt her father needed help in conducting his business, but that since the first meeting she had learned her father was nearly blind and she attributed his need of assistance to that rather than to mental deterioration. She admitted she never communicated that knowledge and opinion to the others. She testified she had assisted appellant in taking care of his business and during the last year had given him advice on business matters. Appellant was called as a witness and examined at length. The trial court found that it was necessary on an unusual number of occasions to have questions repeated to him. His memory appeared to be good as to some matters but he was uncertain as to various more recent matters, such as the amount of the current rental income from his farm and whether he had been paid his share of the oats. After some time it was discovered he was testifying in part from papers which he and his daughter Mary had prepared to help him as a witness. Appellant testified he understood that if a guardian is appointed he can be picked up at any time thereafter and sent to an insane asylum without any further action and that was his principal objection to the appointment of a guardian. During the progress of the trial, on December 27, 1945, appellant conveyed all his real and personal property in trust to Norwalk-Cummings State Bank as trustee. The trust agreement provides that the trustee shall handle and dispose of the property and pay appellant $100 per month and the person furnishing him room and board $40 per month, and that upon appellant's death the remaining trust estate shall be divided among his seven children, after deductions for certain promissory notes therein listed; that the share of any beneficiary who shall challenge it or the capacity of the trustor to make it shall be forfeited; and that the trustee shall receive a reasonable compensation to be agreed upon or fixed by the court. Appellant testified he fully understands everything in the trust agreement; that one of the reasons he made it was that he wanted to get rid of a will he had made; that although Page 985 the agreement recites that the trust is irrevocable he can make a will disposing of the property conveyed to the trustee, and expects to do so, and that if he had not so understood it he would not have executed the trust agreement. The trustee "is to be paid $40 altogether, that is the way I understood it * * * maybe it is $40 a year I ain't sure about that." The findings of the trial court state that it appears without question from appellant's testimony that he does not understand certain provisions of the trust agreement, even though, after its execution, his son Clarence attempted to go over it with him and explain it to him. Appellant testified Mary Berney was present when he told his attorney (who had been Mary's attorney for many years) what he wanted in the trust agreement: "Mary and I talked it over and we thought that was the way to do it." Upon appellant's family cemetery lot is a sizable, modern monument recently erected by appellant, upon which are carved the names of his deceased wife and daughter and his own name. The trust agreement contains a clause requiring the erection of a monument at trustor's grave by the trustee. Appellant testified: "In my trust agreement I want another monument put up, I have not yet told the trustee about the kind I wanted or where I wanted it put. I ain't satisfied with that monument." Mary Berney testified she thinks the trusteeship would be a good thing for appellant and a guardianship would not be because it would place a stigma upon him. Appellant gave as his reason for the trust agreement: "I have always taken care of my own business but now I don't want the responsibility simply because I am getting old and I don't want it." Mary Berney, several other lay witnesses, and Dr. Price, a mental expert, testified to appellant's competency. The trial court found appellant: "* * * is not competent to carry on the usual business affairs in a rational manner. Page 986 "The court recognizes there is evidence in this record showing that in some matters the defendant has carried out his business in a proper manner, but that generally, senile deterioration has advanced to such a state as to render him incompetent to carry out ordinary business affairs." [1] I. Appellant contends the evidence is insufficient to support the finding that he is a person of unsound mind, within the meaning of section 670.2, Code, 1946 (section 12614, Code, 1939). The meaning of the phrase "a person of unsound mind," as used in the statute is well settled. A mere impairment of memory or other debility of a person will not warrant the appointment of a guardian of his property. There must be such mental unsoundness as to deprive him of the ability to manage his estate in a rational manner. The accepted test of mental unsoundness is the ability and competency of a person to manage his property and business affairs in a rational manner. Emerick v. Emerick,83 Iowa 411, 49 N.W. 1017, 13 L.R.A. 757; Claussen v. Claussen,216 Iowa 269, 249 N.W. 397; Richardson v. Richardson, 217 Iowa 127,250 N.W. 897; In re Guardianship of Hawk, 227 Iowa 232,288 N.W. 114. Where, as here, such a case is tried to the court, the finding of the court has the effect of a jury verdict and will not be disturbed if supported by substantial evidence. However, in considering the sufficiency of the evidence to support a finding against the defendant the record is scrutinized closely so that the person will not be unjustly deprived of the control of his property, Huffman v. Beamer, 198 Iowa 1113, 1117, 197 N.W. 476; Richardson v. Richardson, supra. The record in this case is somewhat lengthy and many details have been omitted from our statement. Each case must be determined on its own facts and decisions based upon other facts do not afford much assistance. In Richardson v. Richardson, supra, Huffman v. Beamer, supra, and other decisions cited by appellant, there was no proof of unsoundness of mind comparable to that in the case at bar. A careful consideration of the entire record in this case satisfies us the evidence was sufficient to support the findings and judgment of the trial court. Page 987 II. Appellant predicates error upon certain rulings involving the testimony of his physician, Dr. Sternagel: "Q. During the last year * * * did you advise him * * * with reference to what you thought he ought to do about his business affairs? A. Yes, sir. Q. * * * you did make further observations and arrived at certain professional opinions? A. Yes, sir. Q. What were they? * * * Q. Just tell us what you told Mr. Miller? A. I told Mr. Miller at his next visit in the office that * * * he should have someone to help him with his financial affairs, and particularly when traveling a long ways from home. Q. * * * that was the result of professional opinion and conclusion you had arrived at from observing Mr. Miller * * ? A. That was the result of the events I have already enumerated, the forgetfulness particularly. Q. But it was your professional opinion? A. Yes, sir." [2] Objections to the question what the doctor told appellant and motion to strike the answer were overruled. One ground of objection was that the doctor's advice to appellant was immaterial. Although what the doctor said to his patient may have been immaterial, his professional opinion as to the condition of his patient was material. The doctor testified what he told appellant was his professional opinion and conclusion. While the form of this examination was irregular, we do not think prejudice resulted therefrom. [3] Another ground of objection was that there was no proper foundation laid for the opinion of the doctor. Appellant contends the doctor testified as a nonexpert. We disagree. A regular practicing physician is usually regarded as qualified to give an expert opinion of the mental condition of a patient under his care. Monahan v. Roderick, 183 Iowa 1, 13, 166 N.W. 725. [4] Moreover, the doctor testified his opinion was "the result of the events I have already enumerated." The matters previously detailed in the doctor's testimony tend to show such a departure from normal on the part of appellant that the trial court would have been warranted in permitting even a nonexpert witness to give an opinion. Zander v. Cahow, 200 Iowa 1258, 1260,206 N.W. 90; Campfield v. Rutt, 211 Iowa 1077, Page 988 1080, 235 N.W. 59; Erwin v. Fillenwarth, 160 Iowa 210, 217,137 N.W. 502. [5] Appellant also contends the doctor's testimony that appellant "should have someone to help him with his financial affairs" was intended to convey to the court an opinion and conclusion that a guardian should be appointed for the appellant and hence is objectionable in that it embraces the whole merits of the case and leaves nothing for the jury (court) to decide. This complaint is not well founded. Our views upon this proposition are set out by Bliss, J., in Grismore v. Consolidated Products Co., 232 Iowa 328, 342-362, 5 N.W.2d 646, in which many authorities are reviewed and some previous decisions overruled. The rule there recognized is that if the matter to be determined is one in which opinion testimony is proper, such testimony will not be an invasion or usurpation of the province or function of the jury even though it passes upon an ultimate fact which the jury must determine. [6] The decision states the reason why a witness should not be permitted to give his opinion directly that a person is or is not guilty, criminally responsible, negligent, etc., is that such matters are not subjects of opinion evidence but are mixed questions of law and fact, and that when a standard or measure of capacity has been fixed by law, no witness is permitted to express an opinion as to whether or not the person or the conduct in question measures up to the standard. Among others, the following decisions holding certain opinion evidence admissible, are cited with approval: Erwin v. Fillenwarth, supra, 160 Iowa 210, 217, 137 N.W. 502, testimony of a layman that his father was capable of looking after financial affairs; Searles v. Northwestern Mut. L. Ins. Co., 148 Iowa 65, 126 N.W. 801, 29 L.R.A., N.S., 405, witnesses testified insured was incapable of transacting business at and before the time he made the policy assignment; State v. McGruder,125 Iowa 741, 747, 101 N.W. 646, where defense was insanity, opinion evidence was not limited to soundness or unsoundness of mind but lay witnesses testified defendant was not capable of appreciating the difference between right and wrong. [7] III. Clarence Miller testified that at one of the group Page 989 meetings he had a conversation with his father about the proposed guardianship in which mention was made of a $250 check which had been returned from California. Counsel for appellees then asked Clarence what his father said about the transaction and he answered: "He said — I said, `Dad, don't you think you should have somebody to take care of your affairs?' He said, `Yes.'" The court overruled appellant's motion to strike the answer as nonresponsive. The ruling was not erroneous. The objection that the answer of a witness is not responsive is not available to the party who is not interrogating. Dice v. Johnson, 198 Iowa 1093,1097, 199 N.W. 346; Fisher v. Skidmore Land Co., 189 Iowa 833,837, 179 N.W. 152; Kukkuk v. City of Des Moines, 193 Iowa 444,452, 187 N.W. 209. [8] IV. Over appellant's objection that it was immaterial, Clarence Miller was permitted to testify that when appellant handed the $1,000 check to Judge Linville, the judge said, "Clarence, you should have somebody help take care of your dad, he isn't capable." We think this evidence was inadmissible but hold the ruling was not prejudicial error. The findings of fact of the trial court discuss the check incident at some length but make no mention of the statement of Judge Linville. From this it may be fairly inferred that the trial court gave no consideration to said statement. [9] V. Irvine Miller testified concerning his contacts and conversations with appellant in the recent past. He was then asked, "basing your answer upon your own observation, your acquaintance with your father, your conversation with him in these group meetings, and everything," to give his "opinion as to whether or not he [appellant] is competent to do his farming, business, and so forth?" and answered, "I say that he should have somebody to look after his business. As I said before, that is my opinion of it." Appellant's objection to the question and complaint upon appeal are founded upon the rule that a nonexpert witness must base his opinion touching mental unsoundness wholly upon facts previously detailed by him in evidence. Neidermyer v. Neidermyer, 237 Iowa 685, Page 990 22 N.W.2d 346; In re Estate of Armstrong, 191 Iowa 1210,1213, 183 N.W. 386. The trial court has some discretion as to the permissible form of such questions. Spiers v. Hendershott, 142 Iowa 446, 451,120 N.W. 1058. See, also, Hertrich v. Hertrich, 114 Iowa 643, 645,87 N.W. 689, 89 Am. St. Rep. 389. However, we think the question put to this witness affirmatively indicates that the opinion should be based in part upon facts not shown in his testimony and we conclude the objection should have been sustained. The answer, however, added little to what the record already disclosed concerning the opinion of this witness. He had previously testified that at one of the family group meetings he told appellant he did not think he (appellant) was competent to do his own business and should not be driving, and that appellant (who had first denied and then sought to excuse various actions) did not have much to say from then on. Moreover, the findings of fact make no reference to this testimony or the opinion testimony of other nonexpert witnesses. We are satisfied the ruling does not warrant a reversal. [10] VI. Frank Miller was asked if he had noticed any difference in his father in the last year or so, and answered, "Well, he has failed terribly in the last year." This was fact testimony as distinguished from opinion testimony, Severin v. Zack, 55 Iowa 28, 30, 7 N.W. 404; Stone v. Moore, 83 Iowa 186,188, 49 N.W. 76; Manatt v. Scott, 106 Iowa 203, 212, 76 N.W. 717, 68 Am. St. Rep. 293. Hence the trial court properly overruled appellant's objection that no proper foundation for the question had been laid. The court refused to strike the answer of the witness as a conclusion. Conclusions from composite facts which cannot be aptly described to the jury may be admissible in evidence. Reininghaus v. Merchants Life Assn., 116 Iowa 364, 366,89 N.W. 1113. Considerable discretion is lodged in the trial court in such matters. We hold the ruling was not error. — Affirmed. All JUSTICES concur. *Page 991	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431337/	Action in equity to construe the will and codicil of James J. Ransom, deceased, which has been admitted to and is now in course of probate in the District Court of Des Moines County, Iowa. Testator died in 1928. His heirs at law were William O. Ransom (the original plaintiff herein), who was the son of a deceased brother, and seven daughters of a deceased sister. The will, after providing for the payment of debts and several bequests not material hereto, directs the executors to convert the residuary estate (then all personalty) into money, "or if not invested in such securities at the date of my death, into such securities as may be suitable to constitute a trust fund, and such money and securities shall be placed with a reliable trust company, to be selected by my said Executrix and Executors, and said trust fund shall be by said trust company carefully managed in such a manner as will produce the largest income consistent with safe and conservative investments, and the net income from said trust fund shall be divided into" shares which shall be paid (in the respective proportions therein specified) to the nephew, the seven nieces and Lena Kurrle (a former employee) "for and during their lives." Upon the death of any Page 453 beneficiary the share of said decedent shall be paid to the surviving beneficiaries proportionately to their original shares. The codicil, after revoking provisions of the will disposing of the real estate, provides that it shall become part of the residuary estate and be disposed of as above provided "with this limitation and restriction; I direct that said real estate shall not be sold until the death of the daughters of my said deceased sister, and each of them, the net income from said real estate, however, being part of the trust created by my Will, and disposed of as provided therein." It will be noted that the will disposes only of the income of the residuary estate or trust during the lives of the aforementioned beneficiaries. It makes no disposition of the corpus of the trust after the death of the last beneficiary. That omission is the foundation of this action in equity instituted by William O. Ransom, nephew of decedent, against the executor, the beneficiary Lena Kurrle, the six surviving nieces and the heirs of the seventh niece, the latter having died after the death of James J. Ransom. Therein William O. Ransom prayed for decree construing the will and adjudicating him to be the owner of an undivided one-half interest in the reversion or undisposed of remainder of said residuary estate, and each of testator's six nieces and the heirs of the seventh niece a 1/14 interest therein. Subsequently, William died and his widow, Emma C. Ransom, as executrix and sole beneficiary under his will, was substituted as plaintiff. Various petitions, amendments and amendatory petitions were, from time to time, filed and were assailed by motions to dismiss and to strike, all of which appear to have been sustained. Judgment was entered dismissing the action and plaintiff has appealed. [1] The briefs refer to certain procedural propositions involving the various motions and the rulings thereon. It does not appear necessary to consider these propositions in view of appellant's statement in argument, "Manifestly, the real question * * is whether the lower court erred in its ruling on defendants' motion to dismiss the original petition, * * ." Page 454 The motion to dismiss asserts in part that the action is solely for the construction of a will; that the will is unambiguous in its terms and no interpretation or construction thereof is permissible, lawful or proper; that plaintiff has no such interest as to permit the bringing of the action; that the action is premature; that there is a defect in parties plaintiff and defendants; that the indispensable parties cannot be determined until the trust is terminated. "The right of a court, whether equity or probate, to entertain an action solely for the construction of a will, applies only to such actions as pertain to wills where the meaning is uncertain in its terms — ambiguous." Anderson v. Meier, 227 Iowa 38, 41,287 N.W. 250, 251. Where the language is plain and unequivocal there is no room for construction. In re: Estate of Thomas,220 Iowa 50, 54, 261 N.W. 622, 624; First Methodist Church v. Hull,225 Iowa 306, 280 N.W. 531. And the court, in the Meier case [at page 41 of227 Iowa, page 252 of 287 N.W.], quotes with approval statements in 69 C.J. 866 and 867, that "`the court cannot acquire jurisdiction to construe a will by allegations that a question requiring construction exists when the record shows there is no such question. * * * The language of the will must be such that the parties may reasonably have doubts concerning its true construction.'" In this case the language of the will and codicil is clear and unambiguous. They plainly provide for the holding of the entire residuary estate in trust, and the payment of the income to certain named beneficiaries during their respective lives, in the specific proportions therein set out. However, the will makes no disposition (or further mention) of the corpus of the trust, which will remain after the determination of the life estates. This is the main basis of appellant's claim of right to a construction of the will. Strictly speaking, it does not relate to the construction of language used. What appellant seeks is a judicial declaration as to the legal effect of the omission from the will of any provisions for the disposition of said corpus. But there is no legal uncertainty upon this point. Clearly the undisposed corpus of the trust constitutes an estate in reversion or reversionary interest. [2] An estate in reversion or reversionary interest is the Page 455 residue of an estate left by operation of law in the grantor or devisor or his successors, commencing in possession on the determination, of a particular estate granted or devised. It remains vested in the sense of a present fixed right of enjoyment in the future. 21 C.J. 1016, 1018, 1046; 23 R.C.L. 1100; Thompson on Real Property, Perm. Ed., sec. 2180; 1 Cooley's Blackstone, 4th Ed., 578. Upon the death of a testator, such an estate or interest, left undisposed by will, passes at once to his heirs at law, the same as any other intestate property. Podaril v. Clark,118 Iowa 264, 269, 91 N.W. 1091; Leighton v. Leighton, 193 Iowa 1299,188 N.W. 922; Horak v. Stanley, 216 Iowa 318, 249 N.W. 166. [3] We do not think there is any such uncertainty or ambiguity in the provisions in question or such doubt of their legal effect as to require a court of equity to entertain an action for the construction. But appellant contends the rule that an unambiguous will need not be construed was circumvented by the pleadings in this case in that other causes of action were set out and other relief was prayed, the granting of which would incidentally require such construction. One such prayer was for the quieting of title in appellant to her interest in the reversion in the various specific parcels of real estate. Appellant points out that the scope of actions to quiet title has been enlarged by statute and that one having an interest in reversion in real estate may thereunder bring action to determine the same. Code section 12285. Ward v. Meredith, 186 Iowa 1108, 173 N.W. 246. We agree with this proposition but not with its applicability to the case at bar. Here all the real estate is a part of the trust and the will directs its conversion into money or securities. Therefore, it does not appear that appellant could have any such interest in the specific parcels of real estate as would entitle her to maintain such action. [4] Nor do we think appellant's prayer for the determination and establishment of her interest in the corpus of the trust broadens the relief sought and requires a court of equity to entertain the suit. The main purpose of the action was to secure the construction of the will. The prayer that her interest in the corpus of the trust be determined and established is necessarily Page 456 included therein and is merely subordinate thereto and colorable. In connection with this proposition only, see Nicklin v. Downey,101 W. Va. 320, 132 S.E. 735; Horton v. Horton, 46 R.I. 492,129 A. 499. [5] Other relief demanded included the appointment of a trustee, an accounting by the executors and certain other findings and instructions involving administrative procedure. It is sufficient to say that such matters may so far as proper and necessary, be determined in the probate proceedings now pending in said court. A court of equity will not interfere with the plain and ordinary proceedings in the settlement of estates pending in the probate court. First Methodist Church v. Hull,225 Iowa 306, 280 N.W. 531. The trust property is in the possession of the legal representatives of the estate and it does not appear that appellant's rights are in danger of being prejudiced. We conclude that the trial court did not err in declining to entertain the action and that the rulings and judgment should be affirmed. Appellees' motion to dismiss the appeal has been considered and is overruled. — Affirmed. MITCHELL, SAGER, STIGER, BLISS, MILLER, WENNERSTRUM, and GARFIELD, JJ., concur. HALE, C.J., takes no part.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431340/	Schultz, on March 1, 1925, executed to plaintiff a mortgage on his farm. On October 24, 1927, Schultz made a written agreement with defendant Melchert to sell the farm to Melchert, and to deliver deed March 1, 1928. On October 28, 1927, defendant Melchert sold to defendant Merryman a half interest in the land. On January 4, 1928, petition for foreclosure, brought by plaintiff against Schultz and wife, was filed. Melchert and Merryman were not made parties to the foreclosure suit. However, plaintiff testifies that, on January 30 or 31, 1928, about a week after foreclosure was commenced, Schultz told plaintiff that Schultz had sold the farm to Melchert. Decree in the foreclosure suit was rendered April 4, 1928, and the land sold under special execution, May 9, 1928, to plaintiff. On December 27, 1928, petition in the suit now before us was filed. In this petition, plaintiff sets up the mortgage and foreclosure Page 1406 proceedings, and alleges that defendants were not made parties because the contract between Schultz and Melchert was not recorded, and plaintiff had no knowledge of it at the time of the commencement of the foreclosure. The prayer of the petition is for a decree barring defendants from all interest and equity of redemption, "reserving * * to them [defendants] and each of them only such rights of statutory redemption to redeem said land above described from said sheriff's sale in said foreclosure proceedings as are by law specifically provided." Defendants, in answer, set up their contracts and a deed by Schultz, dated April 14, 1928, in which a blank was left for the name of the grantee, no name ever having been inserted in it, and which was given on terms differing from the contract, but which states that it is "delivered in satisfaction of a real estate contract entered into with" the grantor. It appears that, when the contract of October 24, 1927, between Schultz and Melchert was made, Merryman had a lease of the premises in question, and had a hired man living on and operating the land. Merryman himself later moved upon the land, and was personally occupying it at the time the foreclosure suit was commenced. The lease from Schultz to Merryman did not expire until March 1, 1928, during which time Merryman continued to pay rent; and plaintiff argues that he was chargeable with notice only of Merryman's occupancy under the lease. I. Plaintiff's Appeal. Plaintiff complains of the action of the court in granting defendants the right to redeem after the expiration of the statutory period of redemption by Schultz, which would be May 9, 1929, the decree in this case having been 1. MORTGAGES: rendered, as stated, April 27, 1929. The theory foreclosure: of the suit seems to be that plaintiff, without supplemen- knowledge of defendants' right as vendees, tary action: failed to implead them as parties defendant to redemption the foreclosure, and therefore is entitled to by omitted maintain the present action, on the principle party. recognized in Nelson v. First Nat. Bank,199 Iowa 804, and cases there cited. The prayer of plaintiff's petition in his present suit is that any equity of redemption which defendants may have, be cut off, saving to them "such rights of statutory redemption to redeem" from sheriff's sale Page 1407 as are by law specially provided. This prayer is renewed in the reply, with the further one: "And in the event the court decrees said defendants, or either of them, to have an equity of redemption in said land, then to allow said defendants not to exceed sixty days from the institution of this suit, either to redeem said land or to have their said equities of redemption, if any, thereafter forever barred and cut off." Plaintiff is appealing to equity. He is asking, in effect, a strict foreclosure. On his own theory, as well as in equity, defendants are entitled to a reasonable time in which to exercise their right of redemption. While it may be conceded that the foreclosure sale was not void (Douglas v. Bishop, 27 Iowa 214), and, for the purpose of this case, that the doctrine of Nelson v.First Nat. Bank, 199 Iowa 804, is applicable to the case of a vendee omitted from foreclosure proceedings, as well as to a junior incumbrancer, nevertheless the original foreclosure suit was wholly ineffective to cut off defendant's right of redemption. Plaintiff argues that a new arrangement was made between Schultz and Melchert, by which the deed in blank was executed, and which was, in effect, an abandonment of the original contract; that, the name of the grantee having been left blank, the legal title remained in Schultz, and until the name of the holder was inserted, it conveyed no title and conferred no right of redemption; that any interest which defendants now have is subsequent to the commencement of the foreclosure suit, and cut off thereby. There is no doubt of the execution of the contract of sale by Schultz to Melchert before plaintiff commenced his foreclosure suit, and consequently no doubt of the defendants' rights as vendees at the time that suit was commenced. We see no reason for holding that those rights have ever been abandoned. Within about a week of the time of commencing the suit to foreclose, plaintiff had actual knowledge of that contract. He knew that Merryman was living on the land, and, without making any inquiry as to the extent of his rights, assumed, apparently, that Merryman's rights were only those of a tenant. Decree in the foreclosure suit was not taken for more than 60 days after plaintiff was informed of Melchert's rights. During that time, he, Page 1408 so far as appears, made no further inquiry, and made no effort to bring Melchert into the suit to foreclose, but took decree of foreclosure, which, on his own knowledge at the time, was defective as to parties defendant. He knew that Melchert was the equitable owner of the premises and entitled to redeem, and yet, though he had had plenty of time to do so, he had not joined Melchert as a party. (His present attorneys were not then representing him.) Plaintiff is appealing to equity, and must do equity; and we are of the opinion that he has no cause to complain of the length of the period which the trial court gave defendants to redeem. While plaintiff says that he does not want the land, and would be glad to take his money, no special circumstances showing injustice or unreasonableness in the time allowed appear. II. Defendant's Appeal. Defendants, quite mildly, however, argue that the court should have held that the foreclosure sale was wholly void for any purpose, and that plaintiff's only remedy was to 2. APPEAL AND commence a new foreclosure. This was not the ERROR: theory which defendants presented to the trial review: court. Defendant Melchert testified: reservation of grounds: "I am after a year of redemption from the fatal and time I was made a party to this suit. Q. In inconsistent other words, you want possession for another delay. year, and, even though you are able, as you claim, to redeem within the statutory year of redemption, and even though you have known for over a year that this farm had been foreclosed, you want to stay in possession another year, use the property, and postpone the vesting of title in Mr. White until another year has elapsed, making two years from the time of foreclosure? * * * A. Yes, barring the phraseology, that is about it." Defendant Merryman is quite noncommittal as to whether he admits himself to have any interest or not. He says he supposes he claims under the deed; that he had no agreement with Melchert as to what his rights under the deed would be; that, if his present arrangements with his present landlord are satisfactory, he may never go back on the land involved here; that he does not "think that deed is any account, the way it is." The case was tried on defendants' original answer, which, Page 1409 though it averred that defendants were in no way bound by the foreclosure, merely asked that the petition be dismissed. The trial was completed and case submitted April 4, 1929. Afterward, defendants filed amendment to answer, setting out the prayers in plaintiff's petition and reply, and alleging that therefore defendants "have at this time their statutory right to redeem said premises from sale * * and they are, by way of affirmative relief, entitled to exercise their statutory right of redemption at any time within one year from the date of the expiration of the period of equity of redemption, as fixed by the court herein, and they ask the court to recognize such statutory right * * * in any decree to be entered in this cause. * * * Wherefore, defendants pray that their statutory right of redemption be reserved unto them; that they be given one full year to exercise that right from the date of the expiration of the period of equity of redemption, as fixed by the court herein; and that they have full and general relief in equity * * " In resistance to motion to strike amendment to answer, defendants again set up the prayers of the petition and reply, and the prayer of their answer for denial of the relief demanded by plaintiff, and say that "plaintiff has never at any time withdrawn this prayer, and said matter was before the court in the trial of this case, and was argued to the court at length by both plaintiff and defendants. * * In other words, the whole case was tried upon the theory that the defendants had the right, under the statute, to redeem within one year from this time, or from the time of the signing of any decree in this cause, or from the expiration of the period of the equity of redemption of the defendants, as fixed by the court in this case;" that to refuse to decree "that defendants should have a year to redeem from the time of the termination of their equitable right of redemption by the decree entered in this cause, would be to compel defendants to bring a new cause of action to enforce that statutory right of redemption, which would mean a multiplicity of suits * * * The whole matter has been fully argued in this cause, and under the same rule of equity, that equity, when it takes a case for one purpose, will take it for all purposes, is invoked, and all of the rights of all of the parties in every respect should be provided for in this decree * * * The court has, in effect, * * * held that defendants' right of statutory has never Page 1410 commenced to run, and that they would be entitled to redeem within one year from the termination of their equity of redemption." Later, defendants filed another amendment to answer (no leave appearing), praying that the foreclosure proceedings be set aside, and the certificate of execution sale decreed to be void. We are of the opinion that, on the theory on which the case was tried, and on the position taken by defendants at the trial, the court was right in foreclosing defendants' right of redemption as of the date of the decree, and giving them one year in which to redeem. It is not necessary to enter into a discussion of the distinction between the equitable right of redemption and the statutory right of redemption, as argued. On both appeals — Affirmed. ALBERT, C.J., and STEVENS, De GRAFF, and WAGNER, JJ., concur. Page 1	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431342/	I am unable to agree with the majority decision. I am not much impressed with the argument that in the transaction which led to the signature of the deeds by plaintiff her husband was an agent of the defendant-corporation. It seems a more reasonable view that he was merely putting himself in a position to comply with his arrangement with the corporation. However, I would concede that point and still have grave doubt as to whether the evidence is strong enough to support a decree of cancellation of the deeds. Plaintiff bases her claim upon the alleged false and fraudulent representation that the signing of the blank deeds was "a mere matter of form in connection with performing the functions of George Peter Nissen and the plaintiff with the Nissen Trampoline Company"; and that the blanks were thereafter filled Page 486 out "falsely and fraudulently" by inserting descriptions, names, etc., so as to make them appear to be deeds from plaintiff to defendant. She was or had been technically the secretary of defendant-company. The plain inference to be drawn from her pleading and testimony is that she was led to believe she was signing these printed blank deed forms as secretary of the company and not in her private or personal capacity. She says: "He told me that he needed my signature on some papers for the company, that as an officer of the company they had to have my signature on them. I had always done what he told me as an officer. I make no pretense to being an experienced business woman. All the years I worked with George Peter Nissen I relied on him absolutely in all business matters and I relied on him this day." This states her complete case in its strongest light, except that she pleads she "was in ill health, greatly upset in mind and body." She testifies: "I was extremely upset * . I had been contemplating a separation and it was naturally a hard decision to make." Of course her testimony as to knowledge of affairs and her mental and physical condition are uncontradicted except by her husband's testimony and by circumstantial evidence. She was twenty-seven years old, had graduated from high school and had had one year in the state university and some courses in other institutions. She was champion tennis player in Cedar Rapids three years, including the summer of 1947. According to her own testimony, on the very evening of the day she signed the deeds she and her husband gave an athletic exhibition at Iowa City between halves of the basketball game with Purdue. She had already been consulting a lawyer about her marital problem and her husband knew her intention and did not want a separation. There is no contention or showing by pleading or proof that defendant-company owned, or that she believed it owned, any real estate that could be the subject of transfer by it. It is not Page 487 clear she knew title to any of the properties stood in her name in joint tenancy until the assessor's office telephoned her that she had lost a homestead exemption by the transfer to defendant. Of course the burden is on plaintiff to establish the alleged fraud by clear and convincing evidence. After a careful study of this record I am convinced she has not carried this burden. There is the further significant fact that on March 24, 1947, just as she was about to get her divorce she made a property settlement with her husband. At that time she had full knowledge of the fact that the deeds she had signed purported to convey the property to the defendant-corporation. According to her own testimony she had already confronted her husband with the charge of fraud in obtaining her signatures to the deeds and he had agreed to account to her in cash and she had told him that would be all right. It does seem to me that on the whole record her case is too weak to justify a reversal of the trial court who was in a much better position to appraise the situation than we are. I would affirm. MULRONEY, J., joins in this dissent.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431343/	I. The receiver petitioned for removal to the Federal court on the ground that the suit involved "matter of the distribution of the assets of a national bank, and is, in effect, one to establish a preference contrary to Federal law." 1. COURTS: Removal was denied. Plaintiff's petition alleges concurrent that $19,889.93 of the public funds of the and plaintiff was deposited in the defunct bank by conflicting plaintiff's treasurer, and that the deposits jurisdic- were unlawful, in that no bond to secure tions: plaintiff against loss on account of them was receiver of furnished, as required by statute; that the bank national received and held the funds as trustee, and bank: mingled them with its other assets, whereby they liability in became "a part of the moneys, accounts, bills state court. and notes which came into the hands" of the receiver. The prayer is for decree establishing that the fund of $19,889.93 is a trust fund, and that the bank and the receiver hold the same as trustee, and directing the receiver to repay the same to plaintiff in full out of the proceeds of moneys, accounts, and bills and notes which came into his hands as such, before any of such funds are paid to depositors or other creditors. The right to removal at the time the petition for removal was filed depended upon the allegations of plaintiff's petition, the Page 469 theory of which was that the bank had wrongfully received the plaintiff's money, and had commingled it with its assets; that in its commingled form it had come into the possession of the defendant receiver; that this fund never belonged to the bank, and consequently the receiver never got any title to it. In short, the suit, on the face of plaintiff's petition, was one to recover plaintiff's property from the possession of defendant. The fact that the defendant, as a receiver of a national bank, was an officer of the United States did not render him immune from suit in the state court to recover property to which the bank of which he was receiver and to which he, as receiver, never obtained any title. On the face of the petition, no Federal question was involved. Capital Nat. Bank v. First Nat. Bank,172 U.S. 425 (43 L. Ed. 502, 19 Sup. Ct. Rep. 202). II. At the time the deposits in question were made, no bond securing their payment to plaintiff was in force. The deposits were, therefore, made without authority, and the bank got no title to funds so deposited. Leach v. Stockport 2. TRUSTS: Sav. Bank, 207 Iowa 478, and cases there cited. creation, It devolves upon the plaintiff to prove that it existence, had funds which were so unlawfully deposited in and the bank. Having so proved, and traced its funds validity: into the possession of the bank, and shown that constructive the bank obtained such possession wrongfully, trusts: and that funds in the bank such as those wrongful deposited have come into the hands of the deposit: receiver, the plaintiff, in the absence of presumption. countervailing circumstances, is, in this jurisdiction, entitled to the benefit of a presumption that the bank did not dissipate or unlawfully part with the funds which it thus held in trust, but that such funds so coming into the receiver's possession included those belonging to the plaintiff. Idem. Under such circumstances, the burden of going on with the case rests with the receiver, and it is for him to show dissipation by the bank, rather than for plaintiff, under the rule adopted in this jurisdiction, to more specifically trace its funds into some particular fund or property in the hands of the receiver. The question in the final determination of this case is whether, under the evidence and applicable presumptions, the receiver is shown to have in his possession the funds or property of the plaintiff. The Merchants National Bank finally closed its doors on the Page 470 evening of October 31, 1924. Plaintiff's treasurer had kept an account with the bank. Proper bond had been given, and was in force apparently up to April 15, 1924. Prior to 3. TRUSTS: that date, the surety had refused to renew. The establish- county officials apparently overlooked the ment and absence of a renewal. The claim is for unpaid enforcement balance of deposits after April 15, 1924. The of trust: method of making these deposits was this: The right to bank paid taxes and automobile license fees for follow trust its customers. The deposit account in question property: was made up of payments made to the bank for dissipation: taxes and automobile fees so paid by the bank. presumption. The county treasurer testifies: "The Merchants National Bank, when they wanted to pay taxes, they would send me memorandum of taxes, and from that memorandum I would issue tax receipts and make a deposit slip and send with the tax receipts to the bank. For motor vehicle business, they would send an application signed by the party, and I would issue the certificate of registration and send that and the plates to the party making the application, and send a deposit slip, indicating on that deposit slip the name of the party that the registration was made in * * * I made deposits in other ways than by deposit of items of which I was notified by the bank. I sent them deposits independent and different from that procedure. * * " The treasurer testifies that he did not, after April 15, 1924, deposit any cash; that each check deposited was one drawn upon the (now) defunct bank. It is shown that "the great bulk" of taxes so paid were paid by checks of the bank's customers, drawn upon their own accounts in the defunct bank, though occasionally the bank (not the county treasurer) got checks on other banks, and occasionally actual money in payment of taxes. The only evidence of the amount of cash in the possession of the bank at the time the various items of taxes were thus paid and deposits made is a statement in an amendment to the abstract that: "Exhibits 56 and 56A shows that, from September 29, 1924, to and including October 31, 1924, the least amount of cash on hand in the bank at any time was $12,641.49." Exhibit 56 was merely identified as the general balance book Page 471 of the Merchants National Bank. Exhibit 56A is the balance sheet of the last day on which the bank was doing business, October 31, 1924. There is sufficient evidence of the truth of the matters set out in Exhibit 56A. There is no evidence of the correctness of the book entries with respect to other matters, such as the other cash balances. The offer of the book Exhibit 56 in evidence was properly objected to. Defendants have here referred to the balance book as showing the condition of the bank at other dates, but it cannot be said that a sufficient foundation is laid for the admission of the balance book, or that it is accepted by defendants as in evidence. The statement that the least amount of cash at any time was $12,641.49 manifestly refers to the balance on October 31, 1924. The evidence is that, while this item is called "cash," only $4,490.94 (about 35 per cent) was money, $4,607.89 checks on other Grinnell banks, which have been collected by the receiver, and $507.97 in a cash item which has been collected. The other cash items were such as "items that have been paid out by the bank and not charged to any particular account; may be returned checks, worthless checks; may be made up of any number of items, different items representing cash paid out and uncollected." There were outstanding on October 31, 1924, cashier's checks to the amount of $14,403.90, — more than the total cash and cash items. The record is silent as to the available cash on other dates. The bills receivable were $1,319,290.54, stockholders' liability assessment $38,345, deposits something less than $1,000,000, bills payable $217,009, rediscounts $162,442.47. Of the bills receivable, $762,308 were pledged as collateral, or held by the Federal Reserve Bank as rediscounts. The bank was indebted to the Federal Reserve on overdrafts in the sum of $43,000, in addition to liability on rediscounts. Balances in correspondent banks at the time of closing were applied upon the indebtedness to them. The county treasurer's balance with the defunct bank on April 15, 1924, was $53,347.68. The account was active, and deposits were made or funds withdrawn every few days. In the latter part of September and first part of October, the most active period for tax collections, many deposits were made. The credit balance September 30, 1924, was $31,907.21. Deposits dated October 4, 1924, aggregated over $15,000; October 7th, over $6,350; October 21st, over $2,245; October 29th, $513; and from October 4th to and Page 472 including October 29, 1924, more than $24,000. The balance October 31, 1924, was $19,889.93. So that, when we apply the general rule of application of payments to the items of debit in the order in which they are incurred, the deposits for which this balance is claimed were made on and after October 4, 1924. Money is borrowed on bills payable and rediscounts to obtain and maintain balances of cash and credit necessary to meet the demands of depositors and borrowers. Obviously, this bank had been for a considerable time on the verge of suspension. The plaintiff's treasurer deposited no money. He deposited merely the checks of or debits against customers of the (now) defunct bank, drawn on or charged by that bank. The so-called deposits consisted merely of transfers of credit from the accounts of other customers of the defunct bank to the account of the plaintiff in the bank. It is claimed that the deposit of such checks was the equivalent of the presentation of the checks at the counter, the receipt of the money, and its redeposit to the credit of the plaintiff. The record furnishes no evidence that, on October 4, 1924, the customers' checks which were then deposited in behalf of plaintiff to the amount of more than $15,000, or on October 7th, such checks amounting to $6,350, or on October 21st, $2,245, would have been paid in cash, if presented at the counter. The court is asked, on these conditions, to presume not only that checks to the amounts mentioned would, if presented, have been paid in cash, but that, if the customers of the bank had, on the dates mentioned, requested the bank to pay in cash their taxes, as now shown by transfers to the county treasurer's account, the bank would have so paid them. Such a presumption would not only strain even credulity to the breaking point, but would be contrary to uniform experience. A failing bank resorts to every imaginable expedient to delay and to stop the outflow of its funds. Messenger v.Carroll Tr. Sav. Bank, 193 Iowa 608, is relied upon. In that case, the bank received for collection a sight draft of $1,411.98, drawn on one of its depositors, with instructions to surrender the bill of lading attached, only on payment and remittance of the full amount to the drawer of the sight draft. The bank accepted the check of the drawee of the sight draft upon the drawee's account with the collecting bank, which account then showed a credit balance of $4,500. For the collection, the collecting bank remitted its draft. Page 473 The bank had on hand $15,000 in cash, of which not less than $10,000 went into the possession of the receiver. In those circumstances, it was held that the transaction was the equivalent of the payment of money by the drawee of the sight draft; hence that the assets of the defunct bank were augmented in "the same manner as the delivery of currency would have done." In Leach v. Farmers Sav. Bank of Hamburg, 204 Iowa 1083, it was shown that, when deposits were made, "there was at all times in the vaults of the bank money far in excess of the amount of deposits thus made." It is there said: "When the city treasurer presented the county treasurer's check on these funds, it is therefore apparent that, had he requested cash on the county treasurer's check, there was actual money in the bank far in excess of that necessary to meet the check. The law does not require the doing of idle things. * * * When the bank received the check and charged it to the county treasurer's account, it, in effect, withdrew that amount from his account and paid it to the city treasurer. The city treasurer then redeposited the same to his own credit * * ." If we were to presume as requested, the trust could be established only to the amount of $4,490.94; for it cannot be presumed that the funds deposited were invested in the cash items or in bills receivable of the bank or in 4. TRUSTS: balances standing to the credit of the defunct establish- bank with its correspondents or in other forms ment and of property. Leach v. Iowa State Sav. Bank of enforcement Sioux City, 204 Iowa 497; Leach v. Farmers Tr. of trust: Sav. Bank of Dedham, 204 Iowa 1343; Leach v. presumption Stockport Sav. Bank, 207 Iowa 478; Andrew v. of non- State Bank of New Hampton, 205 Iowa 1064. But dissipation. the claimed presumption as to any of these transfers of credit, even that of October 29, 1924, $513, two days before the bank closed (if we were asked to establish a trust as to the items separately), is, under the 5. EVIDENCE: circumstances here, too violent to be presump- permissible. Plaintiff is asking for a tions: pyramiding of presumptions. Presumption must pyramiding rest on facts which are proved. It may not of presump- tions. Page 474 be supported by another presumption. Thayer v. Smoky Hollow CoalCo., 121 Iowa 121, 130. — Reversed. ALBERT, C.J., and STEVENS, De GRAFF, and KINDIG, JJ., concur. WAGNER, J., not participating.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431346/	So far as this appeal is concerned, the major question discussed turns upon the construction of the will of said Glandon. The first item of this will provides for the payment of expenses of his last illness and funeral. The second item reads as follows: "I will and direct that all tax and mortgage liens owing by me at the time of my decease on the land described in this Item be paid from the property of my estate, and to Almeda J. Conklin, niece of my wife, Amanda L. Glandon, now deceased, I will, devise and bequeath all the use, income and rents arising after my death and during her natural life from the North Half of the Northeast Quarter (N 1/2 NE 1/4) of Section Twenty (20), Township Seventy-one (71), Range Thirty-nine (39), West of the 5th P.M., in Montgomery County and State of Iowa, and subject to the above life estate, to the children of the body of said Almeda J. Conklin I will, devise and bequeath said real estate above described in this item." Item 3 is as follows: "To Minnie Elva Klepinger I will, devise and bequeath the following described premises situated in the County of Montgomery and State of Iowa, to wit: — The Northwest Quarter (NW 1/4) and the Southwest Quarter of the Northeast Quarter (SW 1/4 NE 1/4), all being in Section Twenty-one (21), Township Seventy-one (71) North; Range Thirty-nine (39), West of the 5th P.M., containing two hundred acres more or less, according to government survey, subject, however, to all tax and mortgage liens thereon at the time of my decease, which, if any, are to be assumed and paid by said Minnie Elva Klepinger, legatee; also all of my window shades, curtains, carpets, rugs, portiers, linoleum, dishes, piano, furniture and household goods not hereinafter bequeathed." In item 4 a mahogany bedroom suite, with bedding, was devised and bequeathed to Beulah A. England. Item 5 recites that, subject to all the bequests and provisions set forth in the four items above, he devised and bequeathed the sum of $1,000, and the automobile, to Lucilla Smith. Page 1096 In item 6, subject to all bequests and provisions set forth in the five items above, he orders that the balance, residue, and remainder of his property, both real, personal, and mixed, be converted into money and divided into four parts; and he then makes disposition of these four parts of the said proceeds. The real bone of contention between these parties arises by reason of the provisions of item 2 and item 3 above set out. This will was dated April 2, 1931, and Glandon died on the 15th of August, 1931. At the time of his death, he owned farm lands aggregating 572 acres, on which there was incumbrance of $29,100. This land has all been disposed of except the 80 acres referred to in item 2 of the will and the 120 acres referred to in item 3. There are unpaid claims against the estate amounting to over $2,000, aside from the mortgage of $4,194 on the 80 acres referred to in item 2. There is approximately $1,600 in cash on hand in the hands of the executor. This application by the executor is for authority to sell the land covered by items 2 and 3 of the will. Minnie Elva Klepinger files a resistance to the petition of the executor, in which she insists, among other things, that item 3 of the will is not junior and inferior to item 2, or to any other item or provision of the will, and that none of the property described in items 2, 3, or 4 is subject to the payment of the mortgage and taxes described in item 2 of the will; and, further, that the property described in item 3 cannot be charged with the payment of general debts and costs of administration of the estate. She asks that the application for sale be denied and that the court fix and determine the pro rata share of the debts of said estate to be borne by the property described in item 3 of the will, and that she be given an opportunity to pay her prorata share, thus fixed by the court, to the executor of the estate. Other legatees filed resistance. Certain parts of the record were stipulated and testimony was introduced as to the market value of the respective tracts of land covered by items 2 and 3. Briefly stated, the record shows that Almeda J. Conklin, the beneficiary under item 2 of the will, is a widow sixty-one years of age and has four minor children. She was a niece of Mrs. Glandon (the wife of the deceased) and lived in the Glandon home from the time she was nine years of age until she was 29, when she was married. She performed the housework and received no compensation except clothes, board, and schooling. Minnie Elva Klepinger Page 1097 is 46 years of age. She came into the Glandon family when 3 years of age, and remained until she married at the age of 20. She was not related to the Glandons, but was legally adopted in 1889 or 1891. Of the 200-acre tract disposed of by item 3, at the time of the death of Glandon, the north 80 had a $6,000 mortgage on it, which was foreclosed, leaving only 120 acres that are affected by this proceedings. The court held that the land should all be sold, and that from the proceeds thereof, whatever was necessary to the settlement of the Glandon estate should be contributed by the 80-acre tract covered by item 2 and the 120-acre tract covered by item 3, in the proportion of 3/7 to 4/7, respectively. The contention of Almeda J. Conklin at this point is, first, that the 80-acre tract of land passed to her free from the mortgage and taxes referred to, and that in fact the 120-acre tract should bear all the burden of paying the deficiency necessary to settle this estate. The contention of Minnie E. Klepinger is that the 80 acres covered by item 2 of the will should be taken by Almeda J. Conklin subject to the mortgage resting against the same, and that the amount necessary to pay said mortgage should not be considered as a claim against the estate, because the same was not filed as a claim by the mortgagor. It is apparent that the determination of this question must rest wholly on the construction to be put upon the various items in this will as a whole. [1] It is too well settled in this state to require citation of authority that the primary rule in the construction of a will is to determine what was the intention of the testator. It is also well settled that the position of the various items in the will is not controlling, because the instrument must be considered and construed as a whole. Mapes v. Rose, 187 Iowa 289, 174 N.W. 235. With these rules in view, we turn to the terms of the will. [2] The two items in controversy are quite clear and specific. It is quite apparent that, under item 2, the intention of the testator was that Almeda J. Conklin and the children of her body were to take this land free from the mortgage incumbrance and taxes. It is equally clear, under item 3 of the will, that as to the land there devised to Minnie Elva Klepinger, she was to pay all taxes and mortgage liens thereon at the time of the decease of Glandon. Page 1098 Neither item is made subject to the other and we can reach no other conclusion than that they stand on equal footings. The fact that one item precedes the other is in no way controlling, and we cannot hold that the deceased intended that one should be prior to the other. As to the Conklin 80, the deceased undoubtedly intended that the mortgage (it being conceded that there are no taxes due against the property) was to be paid out of the property of the estate of Glandon. But we have this situation before us: That, aside from the personal property on hand, there is not enough property left in the estate (aside from the lands described in items 2 and 3) to pay the debts of the estate. [3] It is insisted by the objector that the $4,194 mortgage cannot be treated as a claim against the estate because the mortgagee did not file such a claim. We think this is wholly beside the issue, because there is a specific direction in the will that the executor shall pay said claim and, under such circumstances, we do not think that the filing of a claim by the mortgagee is necessary. [4] Of course, it is conceded by both parties that the devises in items 2 and 3 to the respective parties are specific devises, and it is equally conceded that they cannot be impinged on until all other property of the estate has been exhausted. This is shown to be the condition in this case and, if the estate is to be settled in full, recourse must be had to these respective tracts of land. This is practically conceded by both sides in the case. The question is, What proportionate share should be paid by the respective beneficiaries under items 2 and 3 to save this property to them; or, if they do not care to make up the deficiency, then what proportionate share should be charged against each tract of land? We think that the $4,194 mortgage must, therefore, be considered as a part of the liabilities of this estate, and that both tracts of land should proportionately share in making up the deficiency necessary to settle this estate. More than this, we think that the conclusion of the court was right by reason of section 11859 of the Code, which reads as follows: "All claims which it becomes necessary to satisfy, and all amounts necessary to be paid from the estate of a testator in disregard of or in opposition to the provisions of a will, shall be taken ratably from the interests of heirs, devisees, and legatees." Page 1099 We therefore conclude that the holding of the district court in this respect was correct. Evidence was introduced in the case as to the values of these respective tracts, and the court found that the land covered by item 2 was of reasonable value of $90 per acre, and the land described in item 3 was of reasonable value of $80 per acre; and held that the Conklin 80 should bear 3/7 (9/21) of this amount, and the Klepinger 120 should bear 4/7 (12/21) of the amount necessary to settle this estate. We have reviewed the evidence and conclude that the estimated value of the respective pieces of land, as determined by the court, is correct; and that the proportionate share charged against each tract of land, as determined by the court, is right. — Affirmed. ANDERSON, C.J., and DONEGAN, PARSONS, HAMILTON, and POWERS, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431347/	This is a law action for damages for personal injuries sustained by S.E. Page on May 21, 1929, when the car in which he was riding was run into and wrecked by a Model A Ford truck, driven by one J.W. Kruckenberg. This is the second appeal in this case. In the first opinion, Page v. Koss Const. Co., which is reported in 215 Iowa on page 1388, the facts covering the accident are fully set out. The facts in this case are the same, and the contracts which were also set out in the first opinion are the same contracts which were introduced as exhibits in this case. When this case was first tried in the lower court, and when the first opinion was handed down by this court, the petition alleged the following: "That on or about May 21, 1929, at a point about 2 miles south of Osceola, Iowa, on Federal Highway No. 65, this plaintiff was driving northward with Fred F. Curnes, in an automobile owned by the said Curnes, and as a guest of the said Curnes, when one of the employees of the said defendant, being named J.W. Kruckenberg, while hauling sand and gravel for the defendants and while in the discharge of his duties as an employee of the defendants purposely Page 1019 and intentionally ran the truck he was driving into the automobile owned by the said Curnes and this plaintiff received serious, painful and permanent injuries." After the case was reversed by this court, to wit: on April 20, 1933, the plaintiff filed an amendment to the petition as follows: "Comes now plaintiff and for amendment to his petition heretofore filed, states: "1st. That he withdraws from the third line from the bottom, on page one of said petition, the following words: `of the employees of said defendants, being named.' "2nd. That he withdraws from the last line on page one of said petition, the following: `In the discharge of his duties as an employee of the defendant,' and that in place thereof he states and inserts the following: `driving their truck with their consent.'" So that the petition as amended would read as follows: "When one J.W. Kruckenberg, while hauling sand and gravel for the defendants, and while driving their truck with their consent, purposely and intentionally ran the truck he was driving, into the automobile." To this amended petition the appellant C.E. White filed his separate answer, and the appellants Koss Construction Company filed their separate answer. The answers of both appellants, while filed separately, contained the same defense, and count II of each answer is the same. After denying in count I each and every material allegation contained in plaintiff's petition, and specifically denying that the truck driven by Kruckenberg was owned by either C.E. White or the Koss Construction Company, both the appellants, White and Koss Construction Company, in count II of their answers, pleaded the following defense: "Comes now the defendant C.E. White and for further answer to the plaintiff's petition as amended, and in complete bar thereof, states: "That defendant C.E. White denies each and every material allegation contained in plaintiff's petition as amended, except such as are hereinafter expressly admitted. Page 1020 "Defendant White admits that the plaintiff sustained some injuries on or about May 21, 1929, while riding in an automobile owned and driven by one Fred F. Curnes. "Defendant White further states, that as shown by the record herein, the plaintiff's original petition was filed on September 17, 1929, and that the basis of recovery therein set forth and relied upon by the plaintiff was that the truck driver Kruckenberg was an employe of the defendants for whose negligence the defendants would be responsible under the common law. That the decision of the supreme court in this case [215 Iowa 1388, 245 N.W. 208] held that Kruckenberg was an independent contractor and not an employe of either of the defendants. "That by the amendment to his petition filed on April 20, 1933, the plaintiff has stricken therefrom the allegations relative to Kruckenberg being an employe of the defendants and thereby withdrawn and removed from this case the issue of employment, and has substituted therefor the allegation that Kruckenberg was `driving their truck with their consent.' "That plaintiff's petition as amended is pleading a new cause of action and a new basis of recovery so that another rule of law obtains. That said amendment to the petition has substituted the issue of ownership for the issue of employment, and substituted a new cause of action. That instead of liability being based upon the common law as set forth and relied upon by the plaintiff under his original petition, the petition as amended is now based solely upon the Iowa statute (section 5026) making the owner of an automobile liable for damages caused by the negligence of a third person driving the same with his consent. That the liability now claimed by plaintiff is solely statutory. That the cause of action based upon said statute is a different and separate cause of action from the one based upon the common law. "That plaintiff's original petition shows that the alleged accident and resulting injuries occurred on May 21, 1929. That the first trial of this case was in November, 1931, more than 2 1/2 years after plaintiff's alleged cause of action arose, and the amendment to plaintiff's petition was filed on April 20, 1933, nearly four years after. That consequently plaintiff's petition as amended shows upon its face that the alleged cause of action thereby set up and relied upon has long since been barred by the statute of limitations." Page 1021 The case proceeded to trial. Evidence was offered, and at the close of the evidence the appellants moved the court to direct a verdict, alleging among other grounds that the record herein shows without dispute that appellee was seeking to recover for personal injuries and damages claimed to have been incurred on or about May 20 or 21, 1929. That the first trial of this cause occurred in November, 1931, more than two years thereafter. That the petition of the appellee, upon which said first trial was had, alleged the driver, Kruckenberg, was an employee of the appellants, and the sole basis of any claim of liability thereunder was that the appellants and each of them were liable for the alleged negligence of their alleged employees. That the supreme court of Iowa, in 215 Iowa 1388, 245 N.W. 208, has held the driver Kruckenberg was not an employee of the appellants, or either of them, but that he was an independent contractor under the identical contracts introduced in evidence by the appellee here, which also had been introduced in evidence and had been relied upon by the appellee in the appeal after the first trial of this case. That since said holding by the supreme court of Iowa, and on April 20, 1933, the appellee has filed an amendment to his petition, striking therefrom the allegations relative to Kruckenberg being an employee, and removing therefrom the issue of employment as the basis of alleged liability, and in lieu thereof the appellee has inserted and for the first time pleaded that the appellants owned the truck driven by Kruckenberg and that he was driving it with their consent. That the only basis of alleged liability involved in this present trial is the appellee's claim that the appellants owned said truck and that it was being driven with their consent. That appellee's petition as amended as aforesaid is pleading a new cause of action, and a new basis of recovery, so that another rule of law obtains. That by said amendment to the petition, and the substitution of the issue of ownership for the issue of employment, the appellee has substituted a new alleged cause of action, and instead of liability being based on the common law as set forth and relied upon by the appellee under his original petition, the petition as amended is now based solely upon the Iowa statute, section 5026, making the owner of an automobile liable for damages caused by the negligence of a third person driving the same with his consent. That the liability now claimed by the appellee is solely statutory. That the cause of action based upon said statute is a different and separate cause of action than the one based upon the Page 1022 common law. That the new and statutory cause of action now relied upon by the plaintiff, presenting the issue of ownership, was never pleaded nor raised by the appellee within the period of two years from and after the accrual of his alleged cause of action, and that in consequence thereof the same is now barred by the statute of limitations, and the appellee has no right to recover against these appellants. The lower court overruled the motion to direct a verdict, and the case was submitted to the jury; a verdict being returned in a substantial amount for the appellee. And from the judgment entered in the lower court, C.E. White and the Koss Construction Company have appealed to this court. The case is a peculiar one. It is an automobile collision case, and yet the question of negligence is not involved in this case. The appellants relied upon but three assignments of error, for reversal. We will take up first the claim of the appellants that the lower court erred in refusing to hold as a matter of law that the appellee's alleged cause of action was barred by the statute of limitations. The accident involved in this case occurred on May 21, 1929. The petition of the appellee was filed on September 17, 1929. In the petition the appellee alleged that Kruckenberg at the time of the accident was hauling sand and gravel for the appellants while in the discharge of his duties as an employee of the appellants. The first trial of this cause was had some time in November, 1931, and the jury returned a verdict in favor of the appellee and against both of the appellants. Judgment was duly entered, and from said judgment both appellants appealed to the supreme court of Iowa. On November 15, 1932, the supreme court of Iowa filed its opinion and decision, reversing the aforesaid judgment, and shortly thereafter the appellee's petition for rehearing was denied. In the opinion this court set out in full the contracts which appeared in the record in the cause at bar, as Exhibits B-1 and C-1, and as the contracts are the same ones, they will not be set out again in this opinion. In that opinion this court held that Kruckenberg was not an employee of either of the appellants, and the trial court erred in refusing to sustain the motion for directed verdict upon said ground. On or about April 20, 1933, appellee filed an amendment to his petition, withdrawing the former allegation that Kruckenberg was an employee of the appellants, and alleging in lieu thereof that Kruckenberg was operating a truck owned by the appellants, with Page 1023 their consent. After the filing of this amendment by the appellee, both of the appellants filed separate answers in which, after specifically denying each and every material allegation, they pleaded as a defense the statute of limitations as set out above in this opinion. This court has time and again laid down the rule that if an amendment pleads a new and independent cause of action, and the period of limitation has intervened, the cause of action alleged in the amendment is barred by the statute of limitations. The difficulty is not found in the statement of the rule, but in the application of the rule. In the case of Pease v. Citizens State Bank, 210 Iowa 331, at page 340, 228 N.W. 83, this court said: " * * If the amendment pleaded a new cause of action, the same was barred by the statute of limitations. The rule is well established that, if the amendment pleads a new and independent cause of action, it is to be treated as the commencement of a new suit, and, if the period of limitation has intervened, the amendment is subject to demurrer. If, however, the amendment merely amplifies and enlarges the cause of action originally pleaded, it will be upheld notwithstanding the statute of limitations. The cases are collected in Plantz v. Kreutzer Wasem, 192 Iowa 333, 183 N.W. 341. See, also, Emeny v. Farmers Elev. Co., 194 Iowa 282, 189 N.W. 720. "The original cause of action was predicated solely on the alleged negligence of the appellant, as agent of the appellee, in making improvident loans. The defense was that the appellant was not appellee's agent, but that the man Hill acted for appellee individually in all of said transactions. It is true the original petition and the amended and substituted petition alleged that the appellant `carelessly, negligently and fraudulently' loaned appellee's funds. Appellee then specified the facts as to the particular loan, and alleged that it was utterly worthless, and that appellant and its officers then and there well knew, or by the exercise of ordinary care and diligence might, at the time of making said loan, have known, said facts. We think it cannot be successfully maintained that appellee's action was grounded on anything except negligence. It was a straight suit for damages against an alleged agent for negligence in the conduct of the principal's business. The manner in which the agent acted negligently is specified and set forth. True, there was a `voluntary issue' which was discussed on the former appeal, but it has no relation to the question involved at this point. Page 1024 We think it cannot be gainsaid that the amendment to the amended and substituted petition pleads a cause of action predicated upon alleged fraudulent misapplication and appropriation of appellee's funds by appellant. Negligence in handling a principal's funds by an agent furnishes a cause of action. Fraudulent misappropriation of a principal's funds for the agent's own use and benefit furnishes quite another and different cause of action." Again, in the case of In re Estate of Skiles, 210 Iowa 935, at page 937, 229 N.W. 235, it is said: "The original claim, taken by its four corners, states an action bottomed wholly on the judgment entered in the district court of Boone county, Iowa; and the amendment, taken by its four corners, states a cause of action bottomed on an indemnity bond. It is apparent, therefore, on the face of it, that the two causes of action are wholly different, and, under the general rule recognized here as elsewhere, the cause of action stated in the amendment is not an elaboration of the cause of action stated in the original claim filed. The amendment having been filed long after the time provided in the statute for filing of claims, and setting up a distinct and different cause of action from that set out in the original claim, it cannot, as against the statutory limitation, be allowed to stand as a claim properly filed against said estate. The district court reached this conclusion, and from its ruling we do not care to depart. — Affirmed." And so, applying the rule as laid down by this court, to the case at bar, the question is: "Does the amendment filed by the appellee plead a new cause of action?" If the amendment pleads a new and independent cause of action, it is to be treated as the commencement of a new suit, and, it having been filed more than two years after the accident, it would be barred by the statute of limitations. In the original petition the appellee alleged the fact to be that Kruckenberg was the employee of the appellants, and upon trial appellee relied upon the contracts, Exhibits B-1 and C-1, to establish this fact. This court, in its opinion, decided that Kruckenberg was not an employee of the appellants, and upon the retrial of this case, after the reversal by this court and after the statute of limitations had long since expired, appellee filed an amendment to his petition, withdrawing the allegation of fact that Kruckenberg was an employee of appellants and inserting in lieu thereof the allegation of Page 1025 fact that appellants were the owners of the truck operated by Kruckenberg and the fact that Kruckenberg was operating the truck with the consent of the appellants. In other words, in the second trial, after the amendment was filed, the appellee was seeking to recover under section 5026 of the Code. In considering section 5026 of the Code, this court, in the case of Maine v. James Maine Sons Co., 198 Iowa 1278, at page 1282, 201 N.W. 20, 37 A.L.R. 161, said: "It is urged that the appellant is liable under section 12 of chapter 275, Acts Thirty-eighth General Assembly (section 5026, Code of 1924), providing that in all cases where damage is done by a car driven by consent of the owner, by reason of negligence of the driver, the owner of the car shall be liable for such damage. This statute merely says that the owner of the car shall be liable for the negligence of one who is using the car with his consent. It is a statutory recognition of the present-day frequent use of motor vehicles by others than the owner, where no such relation exists between owner and driver as, under the common law, will create a liability on the part of the owner for the negligence of the driver. The statute defines a new relation or situation of the parties, where a liability on the part of one for the negligence of the other shall exist. It, in effect, makes the one who uses an automobile with the consent of the owner the agent of the latter. It may be said to be a statutory extension of the doctrine of respondeat superior to a relation to which, under the common law, it did not apply or to create a liability on the part of one for the negligent act of the other analogous to that expressed in that phrase. The statutory liability depends upon two things: The consent of the owner to the use of the car by the driver; and the negligence of the driver. As the principal or employer is not liable for every tortious or negligent act of one who is his agent or employee, but only for those committed while the latter is engaged in the employment or agency, so it has been held under the statute that, where the owner has consented to a particular use of his car, the negligence of the driver, while using the car for some purpose of his own, and beyond or outside the terms of the consent given, will not render the owner liable." Page 1026 And again, in the case of Tigue Sales Company v. Reliance Motor Company, 207 Iowa 567, at page 573, 221 N.W. 514, this court said: "Respecting section 5026, Code 1924, it may be said that a new relationship between an owner and the driver of an automobile was created. This statute fixes the liability of an owner for the negligence of a person driving the car with his consent. Seleine v. Wisner, 200 Iowa 1389, 206 N.W. 130. By this statute the doctrine of respondeat superior has been given a broader scope, and under this statute it was not necessary that the instant plaintiff establish the fact that the driver Swearingen was in the employ of the defendant or was its agent or in the transaction of its business. It was essential to establish, by a preponderance of the evidence, that the Hupmobile was operated in a negligent manner, as alleged, and that the damage sustained by the plaintiff was the direct and proximate result of such negligence. The trial court so instructed. It was also essential that the plaintiff establish, by a preponderance of the evidence, that the Reliance Motor Company was the owner of the Hupmobile which caused the damage, and that the motor company had given its consent at the time in question for it to be operated by the driver Swearingen." It thus appears from the cases cited that section 5026 of the Code created a new statutory liability which did not exist under the common law. Prior to the amendment being filed in this case, the appellee's petition alleged a cause of action based upon a common-law liability: that the employer is liable for the acts of his employee while said employee is acting in the scope of his employment. In the amendment to his petition, appellee withdrew this cause of action and substituted in lieu thereof a new and different cause of action, based upon section 5026 of the Code, to wit, a statutory liability. But the appellee argues with a great deal of force that this court has time and again held that amendments are to be allowed with great liberality if the substantial cause of action is not changed, citing Cahill v. Railroad Company, 137 Iowa 577, 115 N.W. 216, and Gordon v. Railroad Company, 129 Iowa 747, 106 N.W. 177. With this rule we find no fault, and we are still of the opinion that amendments should be allowed, if the new matter pleaded does not state a new cause of action, but merely amplifies the charge made in the prior pleading. Page 1027 The appellee also argues that this case is governed by the rule laid down by this court in Basham v. Chicago Great Western Railroad Company, 178 Iowa 998, 154 N.W. 1019, 157 N.W. 192. In the Basham case, supra, this court said (page 1019): "We are of the opinion that the statute of limitations affords no defense in this case. The suit was originally brought and has ever since been maintained by the administrator, who is the proper person to prosecute it, whether it be maintainable under the law of the state or under the Federal Employer's Liability Act. The cause of action in either case is the death of Spellman, occasioned by the alleged negligence of the defendant. In other words, whether the action be brought in one form or the other, it is by the same party, against the same party, in the same court, for damages for the same alleged wrong; the sole distinction being in the measure of damages to be recovered and the person or beneficiary to whom the plaintiff must account for damages, if any, which he collects." Thus, it will be noted that in the Basham case this court said that the amendment did not in any way change the cause of action. The sole distinction between the original petition and the amendment in that case was the question of the measure of damages and the person to whom the plaintiff must account for the damages. But in the case at bar the cause of action alleged in appellee's petition is entirely different from the cause of action alleged in appellee's amendment. The petition is based upon the rule of common law that a principal is liable for the acts of his agent while the agent is engaged in the course of his employment, whereas the cause of action alleged in appellee's amendment is based upon a statutory liability found in section 5026 of the Code. It is important to bear in mind that this is not a case between the appellee and Kruckenberg but a case between appellee and appellants. Whether or not Kruckenberg was negligent is wholly immaterial unless that negligence can be charged against the appellants. In an action to recover damages the cause of action is not on the one hand the damage suffered by plaintiff, nor on the other hand the mere evidentiary facts showing defendant's wrong; but it is the wrong itself done by defendant to plaintiff, that is the breach of duty by the defendant to the plaintiff, whether it is a duty arising out of a contract or of tort. Thus, in order to charge the negligence of Kruckenberg against the appellants, it is necessary that there exist a duty on the part of the appellants Page 1028 to protect the appellee from the negligence of Kruckenberg. Whether or not the appellee has alleged actionable negligence depends upon the question of whether or not the appellee has alleged the existence of a duty on the part of the appellants to protect the appellee from the negligence of Kruckenberg. Whether or not a duty existed depends upon the relationship between Kruckenberg and the appellants. In the original petition and in the amendment, appellee alleged the existence of a relationship between Kruckenberg and the appellants. The case at this point resolves itself into the question as to whether or not the appellee in his petition and in his amendment alleged the existence of the same relationship between Kruckenberg and the appellants. In his original petition appellee alleged the existence of a duty on the part of appellants to protect the appellee from the negligence of Kruckenberg arising out of the common-law rule of respondeat superior that every man who prefers to manage his affairs through employees is bound to so manage them that third persons are not injured by any breach of legal duty on the part of such employees, while so engaged upon his business and in the scope of their authority. In his amendment, appellee alleged the existence of a duty upon the part of appellants to protect the appellee from the negligence of Kruckenberg arising out of the statutory duty imposed by section 5026, Iowa Code of 1927, that every man who chooses to permit another to drive his car is in duty bound to so control and so direct his choice of who shall drive his car as to protect third persons from injury caused by negligence of the driver. In the original petition appellee pleaded a duty arising out of the relationship of employee and employer, and founded upon a rule of the common law. In the amendment, appellee pleaded a duty arising out of the relation between the owner of a car and a person driving the same with the owner's consent and founded upon a statutory enactment. Clearly, we think the amendment, which the appellee filed after the period had expired under the statute of limitation, pleaded a new cause of action, and being filed after the period had run was barred. The motion of the appellants to direct a verdict should have been sustained, and the lower court erred in failing to do so. Page 1029 The appellee has filed a motion to dismiss the appeal. The motion to dismiss was submitted with the case. Careful consideration was given to same, and the motion to dismiss is overruled. For reasons above set out, this case must be, and it is hereby, reversed. ALBERT, STEVENS, CLAUSSEN, ANDERSON, KINDIG, KINTZINGER, and DONEGAN, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431348/	Appellee P.G. Ratcliffe made, executed, and delivered to the appellant, the Home State Bank of Humeston, two promissory notes. One was for the amount of $200, dated November 7, 1924, and the other $3,450, dated February 12, 1925. Both instruments were due and unpaid at the time this action was commenced by the Home State Bank, appellant, as plaintiff, against P.G. Ratcliffe and Ethel Ratcliffe, appellees, as defendants. Apparently, the present indebtedness grew out of business transactions between P.G. Ratcliffe and the bank, which began as far back as 1918. During this period, appellee Ratcliffe obtained 10 shares of stock in the appellant bank, of the par value of $100 each, and received a certificate covering the $1,000 investment. Originally, relief was sought against the appellee Ethel Ratcliffe on the theory that she had received, without consideration, in defraud of appellant, certain properties belonging to her husband, P.G. Ratcliffe; but that issue is now no longer material, because the appellant expressly eliminates it, by concession of its failure to furnish the necessary proof in that regard. Petition in this litigation was filed March 17, 1926. Thereafter, on June 30th, appellee P.G. Ratcliffe filed his voluntary petition in bankruptcy, and was adjudged a bankrupt on or about July 1st of that year. Intervener, the trustee in bankruptcy, reported to the referee in charge that appellee Ratcliffe's 10 shares of bank stock were so burdened with appellant's valid lien for appellee's indebtedness as to be worthless to the bankrupt estate, and thereupon the same was approved by the Page 203 bankruptcy court. Accordingly, the proceedings in the case at bar were continued in the district court of this state, for the purpose of foreclosing appellant's alleged "lien" on appellee's stock. The trustee in bankruptcy, as intervener, claimed these shares for the bankrupt estate; while appellee P.G. Ratcliffe asserted his rights thereto as paramount to either the creditors under the bankruptcy action or the appellant in this case. His theory, on the one hand, was that the trustee had abandoned the property, and on the other, that the appellant bank had no "lien" thereon. No appeal was taken by the intervener, and with him we are not now concerned. There is but one question before us for decision, and that is whether or not the appellant bank has a valid and enforcible "lien" against appellee's stock for the financial obligation in question. If it has such, the foundation therefor is an alleged by-law, and nothing else. I. At the trial there were offered in evidence Exhibits "C" and "D," purporting to be "By-laws of Home State Bank, Humeston, Iowa," containing five articles, of which the last is to the following effect: "The ownership of stock shall be transferred on the books of the bank, and shall be so transferred upon the application of the owner upon presentation of the certificates; unless the owner of the certificate who is about to sell and have transferred is indebted to the bank, in which case the bank shall have a prior lien upon the stock." Suitable objections by appellees were timely interposed against the admission of this document into the evidence. Immediately confronting us is the proposition that the alleged "by-law" was not properly identified, and proven to have been adopted by the directors or stockholders of the banking institution. That is the primary question here. Such alleged "by-law" was contained in a book of the corporation, declared to be its minute record. However, the subject-matter which is said to have given rise 1. CORPORA- to the "lien" appears out of order on pages 1 TIONS: by- and 2 thereof, prior to the minutes and laws: in- proceedings relating to the permanent sufficient organization of the corporation and its proof. subsequent business transactions. Was the "by-law" ever Page 204 adopted? Proof of this fact may be made, under certain circumstances, by showing the bank's acts and uniform course of proceedings in recognition and under the authority of such "by-law," as well as the production of the concern's written minutes revealing the actual adoption thereof. Star Loan Assn. v.Moore, 4 Pennewill (Del.) 308 (55 A. 946); Graebner v. Post,119 Wis. 392 (96 N.W. 783); 14 Corpus Juris 354, Sections 448 and 449. II. Appellant is not claiming a "lien" because of any statutory provision. Neither does it contend that the bank's articles of incorporation authorize or create the same, nor was provision therefor or suggestion thereof made in the stock certificate. More than this, appellee P.G. Ratcliffe, according to the evidence, had no notice, knowledge, or information concerning the "by-law." What, then, if anything, gave it validity? But one witness testified for appellant regarding this corporation rule. It was J.A. Courtright, who was not a stockholder, but an employee of the board of directors. This man's relationship in that regard commenced in May, 1919, as assistant cashier, and thus continued until 1925, when Courtright was promoted to the position of cashier, without, however, becoming a stockholder. While on the witness stand, this testifier said that he became associated with the bank after it had renewed its charter, in 1918. Then continuing, he further declared: "I have in my possession and custody the by-laws [the one in question] adopted and in use in the Home State Bank." Upon cross-examination, Courtright fully revealed the fact that his statement just quoted was a mere conclusion, for he did not pretend to say that such was true because of any personal knowledge on his part. He neither in specific terms nor by implication swore that the bank ever operated under or enforced the "by-law" concerning the "lien." And such regulations were at no time posted or published, so far as this witness knew. Thus the record stands, as set forth in appellant's original abstract. Denial thereof, however, was made by appellees, and amendment filed thereto. In the "amendment," the original is denounced as incomplete, and requiring correction by the addition of the following: Page 205 "The so-called by-laws of the Home State Bank of Humeston, Iowa, which are found in the records as Exhibits `C' and `D' on page 13 of the abstract [the by-laws under discussion] are not shown to have been adopted by the directors or stockholders of such bank. * * They are not signed by anyone, nor is there any record in connection therewith to show that they were adopted or were ever in force or effect. They appear in the book on pages 1 2, prior to the permanent organization of such institution." Without denial or certification of the record, appellant permitted this amendment to stand. Therefore, 2. APPEAL AND the same must be effective as the truth, and so ERROR: ab- considered by us. Pullan v. Struthers, 201 Iowa stracts of 709. Manifestly, appellant has not proven, by record: the minutes of the bank or by its custom or amendment: usage, that the "by-law" produced was ever presumption. adopted or in effect. III. Lacking this necessary evidence, appellant must fail, because its case is predicated upon the "by-law," and the burden was upon it to prove the adoption, either by the minutes or usage. Wright v. Farmers Mut. Live-Stock Ins. Assn., 96 Iowa 360; 22 Corpus Juris 900, Section 1096. See Ney v. Eastern Iowa Tel.Co., 162 Iowa 525. Having failed in that regard, such omission cannot be overcome, as attempted by appellant, through producing an alleged "by-law" in an isolated position of the record book; for, rather than being connected with or a part of the proceedings of the organization and its business transactions, this particular foreign item was alone and by itself, disconnected, and entirely separated, to the extent that it was not, in fact, a part of the "minute book." Wherefore, in this seclusion it was not identified as a part of the corporation laws, and without, the necessary proof of its adoption could not be admitted in evidence. As to who placed it there, when so done, and by what authority, the record is absolutely silent. For an answer we are required to guess. Even a prima-facie identification cannot be predicated upon this situation. Since appellant has failed to establish the "lien," it is not entitled to any recovery whatsoever, because the bankruptcy proceedings barred all relief on the original indebtedness against the appellee P.G. Ratcliffe personally. *Page 206 Many other propositions are extensively argued by the parties, but the foregoing discussion on our part makes entirely unnecessary any further review thereof. The judgment and decree of the district court should be, and hereby is, affirmed. — Affirmed. STEVENS, C.J., and EVANS, FAVILLE, and WAGNER, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431349/	I. The city council of the city of Des Moines, on September 11, 1924, by resolution directed the superintendent of the department of public safety and the chief of police of said city to suspend three police officers, viz., Captain DeVies, 1. MUNICIPAL George F. Dickey, and James H. Dunagan, pending CORPORA- investigation of certain charges informally TIONS: civil filed with the city council against them. On the service: same day, the chief of police issued orders of jurisdiction suspension, and promptly notified the civil to service commission Page 1137 discharge. in writing of his action. On September 15th, the commission held a meeting, and set October 2d as the date for a hearing upon the complaints made against these officers. On September 22d, notice in writing was sent to each of them (whether by mail or messenger does not appear) of the time and place fixed for hearing and of the misconduct alleged. The resolution of the city council which recited the acts complained of was duly filed in the office of the secretary of the commission. The officers appeared before the civil service commission at the time and place fixed for the hearing, personally and by counsel, and evidence was offered pro and con. The officers were found guilty of the misconduct alleged against them, and discharged from the service. Thereupon, this proceeding was instituted in the district court. The petition filed in the district court for the writ alleged that the civil service commission exceeded its jurisdiction in ordering the discharge of petitioners, in two particulars: (a) that no written charges or specifications of misconduct were filed against them before the commission; and (b) that the evidence offered was insufficient to justify their discharge from service. Later, an amendment to the petition was filed, alleging that the petitioners Dunagan and Dickey were honorably discharged soldiers of the United States. Subject to objections to its competency and materiality, the appellant admitted, on the hearing in the district court, that petitioners were honorably discharged soldiers. No written formal charges of the misconduct complained of were filed before the commission. The following is sufficient to indicate the basis of the action taken by the city council: "Whereas, demand has heretofore been made by a group of reputable citizens of the city of Des Moines, interested in the activities of the National Council of Catholic Charities now in session in the city of Des Moines, for an investigation relative to the conduct of Captain DeVies and Police Officers Dunagan and Dickey, in connection with the episode on the roof of the Coliseum on the morning of September 9, 1924, wherein certain unknown persons are claimed to have taken a flash-light picture of certain pennants and flags and claimed to have been placed Page 1138 on the top of said building under conditions indicating police protection in connection therewith, and * * ." The written notice sent to petitioners referred to the same incident, giving the date thereof, and stated that, upon final hearing, the commission would determine what should be done "in exonerating, suspending, or discharging the police officers alleged to have assisted or protected such persons who took said photographs." Section 5706, Code of 1924, requires the person or body from whose ruling an appeal has been taken to the civil service commission to, within five days, file therewith written specifications of the charges and grounds upon which the ruling was based. The original action of suspension was taken by the city council. A copy of its resolution was filed with the commission, whether within five days the record does not disclose. As stated above, petitioners appeared at the time fixed, and participated in the hearing before the commission, as witnesses and represented by counsel. Before any testimony was taken, petitioners objected to their being placed on trial without the preferring of written charges. The chairman of the commission then announced that the purpose of the hearing was in the nature of an investigation, and that no specific charges had been filed, but called attention to the notice that had been sent to the parties accused, and said that, if misconduct was shown, the officers found to be guilty would be discharged. No further objection was made by counsel, and the introduction of testimony was begun. The resolution adopted by the city council was specific, and clearly advised petitioners of the misconduct relied upon. The notice sent them further advised them of the matters to be investigated, and that they were accused of misconduct in reference to the incident named. Whether a strict compliance with the statute or not, the filing of the above documents was sufficient to give the commission jurisdiction.Mohr v. Civil Service Com., 186 Iowa 240; Riley v. Crawford,181 Iowa 1219; Fronsdahl v. Civil Service Com., 189 Iowa 1344. The statute does not contemplate that proceedings before the commission shall be formal or technical, and a substantial Page 1139 compliance therewith is sufficient. Furthermore, petitioners, as stated, appeared, offered testimony in their own 2. MUNICIPAL behalf, and otherwise participated in the CORPORA- proceedings. It is true that no formal notice TIONS: civil was given by the city council prior to the service: adoption of the resolution referred to, but the nature of legality of its action is not before us for commission. review. II. Section 5702, Code of 1924, prohibits the arbitrary removal of any person appointed from the civil service list which is furnished by the commission after proper examination of applicants, but authorizes such removal by a majority of such commission, after hearing, for misconduct or failure to perform the duties assigned. The writ of certiorari is allowed by statute in all cases where an inferior tribunal, board, or officer exercising judicial functions is alleged to have exceeded its proper jurisdiction or to have acted illegally, and no other plain, 3. CERTIORARI: speedy, and adequate remedy is available. review: Section 12456, Code of 1924. This court has scope and repeatedly held that the writ presents only a extent. question of law, and does not entitle the petitioner to have the facts reviewed. Tiedt v. Carstensen,61 Iowa 334; Hatch v. Board of Supervisors, 170 Iowa 82; Maxey v.Polk County Dist. Court, 182 Iowa 366; Wise v. Chaney, 67 Iowa 73; Ebert v. Short, 199 Iowa 147; Riley v. Crawford, supra. The late Justice Weaver, speaking for the court in the Riley case, said: "If it should be suggested that in this case the absence of evidence in support of the action of the commission is so complete that the question becomes one of law, we have to say that we think this is not the case. It may be admitted that the showing in support of the charge is by no means conclusive, but, on the contrary, is weak and inconclusive; yet it would be going entirely too far to say that there is an entire absence of evidence on which to base a finding unfavorable to plaintiff. The rule which prevents the court, upon certiorari or by any other proceeding, from undue and meddlesome interference in the details of municipal government, is one so manifestly wise as to deserve and command general approval. If the law were such that every order of discharge or suspension or other measure Page 1140 of discipline intended to insure prompt and faithful discharge of duty by employees and ministerial officers generally could be dragged through the courts and set aside or nullified because the courts may disagree with the municipal authorities upon the merits of disputed questions of fact, discipline would be destroyed, and efficiency in public positions become a lost art. Wherever the statute has guarded the right of the officer to his position by prescribing the manner in which and means by which he may be removed, the courts will protect him in that right, — that is, the court will support his claim that the methods provided by the law shall be substantially followed; but the court will not assume or take to itself authority to try the merits of a charge which the statute has expressly delegated to another tribunal." We have examined the record for the purpose of determining whether the discharge of petitioners was arbitrary, and we are satisfied that such is not the case. With the sufficiency of the evidence to sustain the charges, its weight and credibility, the court has nothing to do. Counsel do not, in argument, contend that the acts referred to in the testimony, if established, did not constitute misconduct. The contention is that the charges, such as they were, were not sustained, and that all that Dunagan and Dickey did was to carry out the orders of their superior officer. This was a question of fact, to be determined by the commission, whose finding was against them on this point. Furthermore, the superior officer was also found guilty of misconduct in the very matter complained of, and discharged from service. In these circumstances, petitioners could not be heard to say that they were simply obeying their superior officer. III. What we have said above has not been with particular reference to the allegations of the amendment to the petition for the writ, setting up that petitioners Dickey and Dunagan are honorably discharged soldiers of the United 4. CERTIORARI: States, and entitled to the protection of return: Chapter 60 of the Code of 1924. So far as exclusive- material to the present controversy, this ness. chapter is as follows: "Sec. 1159. In every public department and upon all public works in the state, and of the counties, cities, towns, and Page 1141 school boards thereof, including those of cities acting under special charters, honorably discharged soldiers, sailors, marines, and nurses from the army and navy of the United States in the late Civil War, Spanish-American war, Philippine insurrection, China relief expedition, or war with Germany, who are citizens and residents of this state, shall, except in the position of schoolteachers, be entitled to preference in appointment, employment, and promotion over other applicants of no greater qualifications. "Sec. 1163. No person holding a public position by appointment or employment, and belonging to any of the classes of persons to whom a preference is herein granted, shall be removed from such position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, and with the right of such employee or appointee to a review by a writ of certiorari." We have examined the return of the civil service commission, including the transcript of the evidence taken before it, and find no reference therein to this subject. We must, therefore, assume that no claim based upon the foregoing statutes was asserted upon the trial before the commission. First, however, as to the interpretation of the statute. The court below held that the commission acted without jurisdiction, for the reason that "stated charges" were not filed before it. The term "stated charges" is not a technical one, and we think it obvious that the statute does not contemplate that the charges shall be either technical or formal in character. It does, however, contemplate that they shall apprise the person affected of the reasons upon which his proposed removal is based. What we have already said sufficiently covers this point. The documents filed before the commission refer specifically to the particular incident, and recite the misconduct relied upon. Chapter 60 was not enacted for the purpose of mitigating or excusing misconduct on the part of honorably discharged soldiers, and what will amount to misconduct justifying the removal of any other person under the classified service will justify the removal of an honorably discharged soldier. The public service is at all times to be the criterion. The full purpose of the statute is to secure to honorably discharged soldiers a hearing, whether under the classified service or not. In this sense, the statute is Page 1142 broad and comprehensive. The right to have the charges reviewed exists only when the public department having power of removal has acted illegally or without jurisdiction. No new grounds for the writ are added. Construing Section 1163, this court has held that under it the evidence will be reviewed for the purpose of determining whether the body or tribunal removing such soldier from his position acted without jurisdiction or illegally. Butinv. Civil Service Com., 179 Iowa 1048; Riley v. Crawford, supra. It is, of course, fundamental that the court granting the writ is confined in its review to the return of the officer or tribunal the legality of whose action is brought in question. This being true, its action was not without jurisdiction or illegal as to a matter not before it. So far as is disclosed by the record, no member of the civil service commission knew, at the time of the hearing before it, that petitioners were honorably discharged soldiers. No claim to that effect was made. It is suggested that the records of this tribunal show that fact. We cannot presume that such is the case. This court is not permitted in this proceeding to review questions or evidence pertaining to matters not before the inferior tribunal. The record before us does not, therefore, permit a review of the facts de novo for the purpose of determining whether or not the charges are sustained by the preponderance of the evidence. The civil service commission was created for a particular purpose, and within its legitimate sphere its discretion is large, and its finding, unless arbitrary, is final and conclusive. The exception is the one now under consideration. This court is, for the reasons stated, without jurisdiction to review the evidence, and the judgment of the court below sustaining the writ of certiorari is reversed. — Reversed. FAVILLE, C.J., and EVANS and ALBERT, JJ., concur. Page 1143	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431338/	Defendant Iowa Power Light Company condemned a 100-foot strip across plaintiff's farm for a high voltage electric transmission line. Both parties appealed to the district court from the assessment of damages made by the commission appointed by the sheriff. Upon the appeal plaintiff alleged in his petition that defendant acquired under the condemnation the right of access to the condemned strip over the remainder of plaintiff's farm. The trial court overruled defendant's motion to strike these allegations as a misstatement of the rights of the parties, irrelevant, immaterial and redundant. Thereupon defendant filed answer denying that it acquired by the condemnation any right of access to the condemned strip over the rest of the farm. In a second division of its answer defendant alleged it has a convenient means of access to the 100-foot strip; if it acquired by the condemnation the right to enter upon any other portion of plaintiff's farm it "does hereby surrender and relinquish any right so acquired to plaintiff and consents that the judgment find and establish that defendant has surrendered, relinquished, and quitclaimed to plaintiff any right it may have Page 953 acquired under said condemnation to enter upon plaintiff's lands except upon the 100-foot strip." Plaintiff moved to strike division 2 of defendant's answer as immaterial and redundant matter which cannot be considered upon the appeal, matter which constitutes no defense to plaintiff's petition, and because the rights acquired by defendant through the condemnation are fixed by statute, and division 2 is in derogation of section 489.16, Code, 1946. The trial court sustained this motion. Pursuant to permission granted by us under Rule 332, Rules of Civil Procedure, defendant has appealed from this ruling. Code section 489.16 reads: "Individuals or corporations operating such transmission lines shall have reasonable access to the same for the purpose of constructing, reconstructing, enlarging, repairing, or locating the poles, wires, or construction and other devices used in or upon such line, but shall pay to the owner of such lands and of crops thereon all damages to said lands or crops caused by entering, using, and occupying said lands for said purposes. Nothing herein contained shall prevent the execution of an agreement between the person or company owning or operating such line and the owner of said land or crops with reference to the use thereof." Plaintiff contends and defendant denies that under this statute defendant acquired by the condemnation a right of access to the 100-foot strip over the remainder of plaintiff's farm for the purposes stated in the statute. Defendant's position is that it acquired a right of access to its transmission line only over the condemned strip and not across any other part of the farm. In overruling defendant's motion to strike allegations from plaintiff's petition as to the nature of the right of access acquired by defendant the trial court obviously adopted plaintiff's interpretation of section 489.16. This (earlier) ruling on defendant's motion to strike is not challenged on this appeal. We therefore assume, without deciding, such ruling is correct. The question presented to us is whether defendant in its answerto plaintiff's petition upon the appeal from the assessment Page 954 of damages may effectively surrender its right of access to the transmission line over the rest of plaintiff's farm. The condemnation was instituted by defendant under the authority of Code chapter 489, particularly section 489.14, and in the manner provided by chapter 472. Section 472.3 of chapter 472 provides that condemnation "proceedings shall be instituted by a written application filed with the sheriff of the county in which the land * * * is located." The application shall set forth a description of all property affected, "The purpose for which the condemnation is sought" and other matters. The form of notice is prescribed by section 472.9. It shall state "That such condemnation is sought for the following purpose: (Here clearly specify the purpose.)" Defendant's application filed with the sheriff does not appear in the record. The notice signed by defendant by its attorneys states that it desires the condemnation of the 100-foot strip described with particularity and: "That such condemnation is sought for the following purpose: for the construction, maintenance and operation of a 161,000 volt transmission line together with the permanent and perpetual right of ingress and egress to and from said property for the purpose of maintaining, repairing, altering or removing the poles, structures or other equipment incident to the operation of said transmission line." At the time fixed in the notice the commission appointed by the sheriff appraised at $1100 the damages plaintiff would sustain by reason of the condemnation. (See section 472.14.) Plaintiff and later defendant appealed to the district court from the assessment so made. It was stated in oral argument that defendant deposited with the sheriff the amount assessed in favor of plaintiff, took possession of the condemned strip and constructed its transmission line. (See section 472.25.) [1] We entertain no doubt that defendant at the outset of the condemnation, by a suitable statement in the application filed with the sheriff and its notice to the landowner, could have so limited the rights to be acquired by it thereunder as to exclude any right of access to the condemned strip over the rest of the farm. While our statute makes no provision for Page 955 such limitation, the authorities are fairly clear such a reservation in favor of the landowner may be made at the outset. Indianapolis Cincinnati Traction Co. v. Wiles, 174 Ind. 236, 91 N.E. 161, 163, and citations; In re Milwaukee Elec. Ry. L. Co.,182 Wis. 182, 196 N.W. 575, 579, and citations; Tyler v. Town of Hudson, 147 Mass. 609, 18 N.E. 582; St. Louis, K. N.W. Ry. Co. v. Clark, 121 Mo. 169, 195, 25 S.W. 192, 906, 26 L.R.A. 751, and note; 1 Nichols on Eminent Domain, Second Ed., section 225, page 691; 2 Lewis on Eminent Domain, Third Ed., section 712 (481), pages 1247, 1248. [2] A limitation upon the rule just stated is that the condemnor may not leave any reservation of rights in the landowner that is incompatible with the use for which the land is condemned or impairs the condemnor's ability to render the public service for which the taking is made. But this limitation is not applicable here since the stricken portion of defendant's answer alleges it has other convenient means of access to the 100-foot strip. We understand a public highway affords such access. [3] Proprietary rights reserved to the owner of the fee are to be distinguished from mere unaccepted promises of the condemnor to do something in the future for the owner's benefit. As a rule the owner is under no obligation to accept such mere promissory stipulations. Louisville Nashville R. Co. v. Western Union Tel. Co., 184 Ind. 531, 111 N.E. 802, Ann. Cas. 1917C, 628, and note 631; State ex rel. Polson Logging Co. v. Superior Court, 11 Wash. 2d 545,119 P.2d 694, 706; 29 C.J.S., Eminent Domain, section 155, page 1015; 18 Am. Jur., Eminent Domain, section 114. Likewise mere permissive privileges to the landowner subject to revocation at will cannot be considered in reduction of damages. Moran v. Iowa State Highway Comm., 223 Iowa 936, 941, 274 N.W. 59; Kentucky-Tennessee L. . P. Co. v. Beard, 152 Tenn. 348,277 S.W. 889, 892; 1 Nichols on Eminent Domain, Second Ed., section 225, page 692; 29 C.J.S., Eminent Domain, section 143a, page 988. [4] That the condemnor has no present intention of exercising all the rights acquired or the probability that its use Page 956 may be a limited one are not proper matters for consideration in fixing compensation since damages must be paid for the rights appropriated even though full use thereof may not be immediately contemplated. Klopp v. Chicago, M. St. P. Ry. Co., 142 Iowa 474, 480, 119 N.W. 373; Howe v. Inhabitants of Weymouth,148 Mass. 605, 20 N.E. 316; 29 C.J.S., Eminent Domain, section 155, pages 1015, 1016. Here, defendant's waiver of any right of access to the condemned strip over the rest of plaintiff's farm is not a mere unaccepted promise of future conduct nor a revocable privilege nor a mere statement of defendant's intention not to exercise such right of access. By the filing of division 2 of its answer and a provision in the judgment pursuant thereto defendant will be effectively prevented from the exercise of any right of ingress or egress over plaintiff's farm and plaintiff is fully protected in this regard. [5] Defendant at the commencement of the proceedings, by an appropriate reservation in its application and notice, should have limited its condemnation by renouncing any right of access to the 100-foot strip over the rest of plaintiff's farm. We think, however, defendant's failure in this respect is not fatal to its right to have this reservation in favor of plaintiff considered upon the appeal from the award of damages. We see no insuperable objection to the manner in which defendant has waived any right of access over the remainder of the property. The fundamental reason why reservations of this kind are permitted in condemnations applies here as fully as if such a limitation had been made at the outset of the proceedings. We therefore hold it was error to strike division 2 of defendant's answer. Defendant did not acquire the fee to the 100-foot strip but only an easement therein which could be used, so far as necessary, to construct, maintain and operate its transmission line as authorized by its franchise. Draker v. Iowa Elec. Co.,191 Iowa 1376, 1382, 182 N.W. 896. See, also, Evans v. Iowa Southern Util. Co., 205 Iowa 283, 287, 218 N.W. 66. Under Code section 489.14 defendant is "vested with the right of eminent domain to such extent as may be necessary * * ." The principle upon which such companies are allowed to Page 957 condemn is not that they may do what they please but that they may do what is reasonably necessary to carry out the public purpose for which the land is taken. Anything beyond this is not the taking of private property for public use but for private use. Gulf Coast Irr. Co. v. Gary, 118 Tex. 469, 14 S.W.2d 266, 267; St. Louis, K. N.W. Ry. Co. v. Clark, supra, 121 Mo. 169, 195, 25 S.W. 192, 906, 26 L.R.A. 751, 763, and note on 751. A public utility, designed to serve the public, should not be burdened with property or interests not necessary to carry out its objects and purposes, for in the final analysis, the expenditures therefor must be borne by the public. In re Milwaukee Elec. Ry. L. Co., supra, 182 Wis. 182, 196 N.W. 575, 579. [6] The law does not favor the taking of property for public use beyond the necessities of the case and if damages may be avoided by a waiver or stipulation definite and certain in its terms which will fully protect all parties concerned, there is no reason why such a waiver should not be received and acted upon. Tacoma Eastern R. Co. v. Smithgall, 58 Wash. 445, 451, 108 P. 1091, 1094, and citations. To permit such a waiver is in keeping with the spirit of the law that no greater interest should be taken than the public use requires. Apparently one reason why reservations in favor of the landowner should ordinarily be made in the original or an amended petition in which the condemnation is sought is that they may definitely appear of record. Here the record will protect all parties as fully as if the waiver had been embodied in the original application and notice. In 2 Lewis on Eminent Domain, Third Ed., section 712 (481), it is said: "Where a limited right is desired, the limitation should be made a part of the record, by being embodied in the petition or order of condemnation or otherwise." (Italics supplied.) There is ample precedent for our conclusion that defendant could waive its right of access to the 100-foot strip over the rest of plaintiff's farm in the manner attempted here. Union Elec. L. P. Co. v. Snyder Estate Co., 8 Cir., Mo., Page 958 65 F.2d 297, 308, 309 (Gardner, J.); Collier v. Merced Irr. Dist., 213 Cal. 554, 2 P.2d 790, 795; Eldorado, M. S.W.R. Co. v. Sims, 228 Ill. 9, 81 N.E. 782; Lieberman v. Chicago S.S.R.T.R. Co., 141 Ill. 140, 30 N.E. 544, 548; Wuester v. Topeka N.W.R. Co., 85 Kan. 636, 118 P. 1054; St. Louis, K. N.W. Ry. Co. v. Clark, supra, 121 Mo. 169, 195, 25 S.W. 192, 906, 26 L.R.A. 751, and note; Gulf Coast Irr. Co. v. Gary, supra, 118 Tex. 469, 14 S.W.2d 266, 267; Olympia L. P. Co. v. Harris,58 Wash. 410, 108 P. 940; Tacoma Eastern R. Co. v. Smithgall,58 Wash. 445, 108 P. 1091; 1 Nichols on Eminent Domain, Second Ed., section 205, page 626. In St. Louis, K. N.W. Ry. Co. v. Clark, supra, a leading case on the subject, the court said on rehearing (at pages 197, 200 of 121 Mo., 907, 908 of 25 S.W., and 764, 765 of 26 L.R.A.): "No good reason can be seen why the condemning company should not have the right to announce, upon the trial, and have made a matter of record, if not done in its petition, the manner in which the right of way should be used * * Such an offer should be treated as in the nature of an amendment to the petition * * ." In Tacoma Eastern R. Co. v. Smithgall, supra, it is said at page 451 of 58 Wn., 1094 of 108 P.: "Ordinarily the condemning party should describe in its petition the property it desires to take, but cases will often arise where an unanticipated claim for damages interposed by the landowner may be lessened or entirely obviated by a stipulation or waiver on the part of the condemning party. * * there is no reason why such a stipulation should not be received and acted upon." It is sometimes argued that to permit such a waiver as defendant makes here is to allow the condemnor to pay for the property taken in part by such waiver and not in money. The authorities are agreed payment must be made in money. 2 Lewis on Eminent Domain, Third Ed., section 682 (460); 1 Nichols on Eminent Domain, Second Ed., section 205, page 625. The argument is answered in some of the decisions cited above, Page 959 including the two from which we have just quoted, which say in effect that such a waiver is not a partial payment of damages but a limitation thereon — the company pays for what it needs and takes, and the landowner receives all the damages he in fact sustains. This language, though perhaps dictum, in Moran v. Iowa State Highway Comm., 223 Iowa 936, 941, 274 N.W. 59, 62, supports our conclusion: "What one holds by the grace or favor of another he holds by a tenure too uncertain to give it any value whatever. Had there been any reservation made through these proceedings by which any advantages which appellee may now have, through the favor of the highway authorities, could be claimed and enforced as a matter of right, a different situation would be presented." Somewhat similar language appears in Klopp v. Chicago, M. St. P. Ry. Co., supra, 142 Iowa 474, 480, 119 N.W. 373. We are aware that under some decisions such a waiver as contained in defendant's answer must be made at the outset of the proceedings and not upon appeal from the commissioners' award. The disagreement in the authorities is mainly upon a question of procedure, not of substantive right, and is largely due to differences in the applicable statutes. In some jurisdictions the original petition for the condemnation is filed in court and a hearing had and decree entered as to the nature and extent of the rights to be appropriated before damages are awarded. It appears from Cedar Rapids, I.F. N.W. Ry. Co. v. Raymond, 37 Minn. 204, 207, 33 N.W. 704, 706, that the Minnesota statute then in force provided the trial court, in its order upon the petition for the appointment of commissioners, might reserve to the landowner certain rights and privileges. (In this decision cited by plaintiff, the right involved was "dependent upon the will of the company.") Where such practice prevails, there is greater reason for requiring any reservation of rights to the landowner to be made at the outset. Our statutes provide no such procedure. As stated, the Page 960 original application is filed with the sheriff. He "thereupon" appoints the commission to assess damages. (Code section 472.4.) No court proceedings are had unless an appeal is taken from the appraisement of damages. Upon such appeal "The defendant shall file a written answer to plaintiff's petition, or such other pleadings as may be proper." (Section 472.22.) The amount of damages to be paid the landowner is not determined until the appeal is disposed of. (See sections 472.24, 472.28.) [7] Even after final determination of the appeal the condemnor may decline to take the property and pay the damages awarded, although in such event he shall pay the costs and damages actually suffered by the owner including reasonable attorney fees. Section 472.34; Klopp v. Chicago, M. St. P. Ry. Co., supra, 142 Iowa 474, 482, 483, 119 N.W. 373; Hartley v. Keokuk N.W. Ry. Co., 85 Iowa 455, 460, 52 N.W. 352; Mason City Ft. D.R. Co. v. Boynton, 8 Cir., Iowa, 158 F. 599. See generally, on the right to abandon eminent domain proceedings, annotation 121 A.L.R. 12, 31, 70, 76, 77. Plaintiff concedes in argument that defendant could refuse to take any of his property after the final award is made. The conclusion reached by us that a right acquired by the condemnation may be waived during the pendency of the appeal seems to be consistent with the statute which permits a condemnor to decline to take the property even after determination of the appeal. Hastings v. Burlington M.R.R. Co., 38 Iowa 316, 319, seems to have some application here. There, the condemnor deposited with the sheriff the amount of the award of the sheriff's jury, took possession and operated its railroad for two and one-half years and then, pending the appeal, abandoned its road. The court says: "The fact of abandonment may be shown upon the question of damages, for after abandonment the property is restored to the occupancy of plaintiffs. * * * Now it is very plain that this state of facts diminishes the damages sustained by plaintiffs, and may properly be considered in determining their true claim for compensation. Plaintiffs ought not to be allowed for the occupancy of the lot after abandonment." *Page 961 [8] Plaintiff complains that if division 2 of the answer is permitted to stand a different question will be submitted to the trial jury from that considered by the commissioners. It is true defendant's waiver eliminates one element of damages which the commissioners may have considered. Unless by reason of this elimination the same or a less amount is awarded upon the appeal, thereby throwing the costs of the appeal upon plaintiff (see section 472.33), plaintiff will not be prejudiced by the fact that this reservation to him was not made at the outset of the condemnation. If the award is not increased it may well be that defendant should be required to pay at least a portion of the costs of the appeal by reason of its delay in waiving any right of access over the rest of plaintiff's farm. In oral argument defendant's counsel conceded as much. If the award is increased upon the appeal defendant must pay the costs thereof. — Reversed. All JUSTICES concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431345/	[1] The Commercial Building Securities Company was a corporation organized under the laws of Iowa, in January, 1920, with a paid-up capital stock of about $300,000. Its business was to buy, improve, and sell real estate. For this purpose the company was authorized to borrow money upon its bonds, and secure the same by mortgages and other collateral. Between the time of its organization in 1920 and 1925, the corporation incurred a bonded indebtedness of about $600,000 and issued bonds therefor. These bonds were issued in series, and when issued were fairly well secured by real estate mortgages and other collateral at their then fairly estimated value. The collateral securities for said bonds were, by an indenture of trust, placed in the hands of the Central State Bank as trustee, for the exclusive benefit of the bondholders. Page 233 During that time the corporation also incurred an additional general indebtedness which, with interest, amounted to approximately $50,000. The claims for this indebtedness were held by general creditors of the corporation, and were represented by notes, trade acceptances, and accounts payable, all of which arose out of the purchase of materials, and for labor used in the improvement of the company's real estate. This action involves the claims of (1) the plaintiff bondholders against the defendant directors for an alleged statutory liability for incurring a bonded indebtedness in excess of the debt limit authorized by statute, and (2) the claims of general creditors for an alleged statutory liability for incurring an indebtedness in excess of the statutory debt limit, which was two-thirds of its paid up capital stock. During the time in question, sections 8351 and 8380 of the Code of 1927 were in effect. These provide: "8351. Such articles must fix the highest amount of indebtedness or liability to which the corporation is at any one time to be subject, which in no case, * * shall exceed two thirds of its capital stock." "8380. If the indebtedness of any corporation shall exceed the amount of indebtedness permitted by law, the directors and officers * * * knowingly consenting thereto shall be personally and individually liable to the creditors of such corporation for such excess." The action for the bondholders was commenced July 29, 1930. None of the general creditors were made parties in the original action. Under the law as announced in Platner v. Hughes, 200 Iowa 1363, 206 N.W. 268, 43 A.L.R. 1141, this kind of an action is of an equitable character, in which all directors and creditors must be made parties, for the purpose of determining once and for all their rights and liabilities. After the commencement of the action the plaintiffs moved that all creditors be made parties. This motion was sustained, and the creditors came in by intervention, or as parties defendants. The record shows that if the bonded indebtedness be considered a debt, then the corporation indebtedness was greatly in excess of the statutory limit. The securities placed in the hands of the trustee for the benefit of the bondholders were, at such times, estimated at a value fairly equal to the bonded indebtedness. During the last Page 234 few years of its existence, however, the corporation, on account of declining property values, had hard sledding. Its financial condition became gradually worse until July, 1925, when its affairs were placed in receivership. The defendant directors held their positions as such during the following periods: H.C. Hargrove, 1920 to January 3, 1923, inclusive. J.H. Cownie, 1920 to January 27, 1925, inclusive. Addison M. Parker, 1920 to January 27, 1925, inclusive. H.R. Howell, 1920 to July 22, 1925, inclusive. Ralph H. Plumb, June, 1920, to July 22, 1925, inclusive. A.C. Page, February 4, 1921, to July 22, 1925, inclusive. J.T. Blackburn, 1920 to January 5, 1921, inclusive. Frank Cummins, January, 1925, to July 22, 1925, inclusive. H.S. Taylor, 1920 to July 22, 1925, inclusive. Grant McPherrin, 1920 to January 1, 1924, inclusive. Fred W. Swanson, June, 1920, to March 28, 1924, inclusive. Elmer Loucks, June, 1920, to January 28, 1925, inclusive. Walter St. John, June, 1920, to July 22, 1925, inclusive. W.W. Sears, 1920 to July 22, 1925, inclusive. The action as to the defendants Cummins and Taylor was continued by the lower court for service; the action as to defendants McPherrin, St. John, Swanson, Sears, and Loucks was settled and dismissed under a contract not to sue; judgment for $30,191.35 in favor of certain general creditors was entered against Directors Hargrove, Cownie, Parker, Howell, Plumb, and Page, as more fully stated in a following division of this opinion. All these defendants appeal except Hargrove and Howell. There was also a judgment rendered in favor of the defendant directors upon claims of the bondholders, from which plaintiff bondholders appeal. Directors Howell and Taylor, respectively, were also at all times president and secretary of the corporation, and, as such, were also appointed general managers of the corporation, and continued in the direct management of the company's affairs until it went into receivership in July, 1925. Aside from the managing officers of the corporation, the directors were all prominent business men engaged in other lines of business. The record shows that the various bond issues were consented to and voted for by all of said directors during the periods, and at the times, each was on the board, as hereinabove shown. Page 235 I. The first question for consideration is the liability of the directors to the bondholders because of the bonded indebtedness of several hundred thousand dollars in excess of the alleged debt limit authorized by statute. There is some contention that the bonds do not constitute a general debt of the corporation. The indenture of trust, however, contains the following provision: "It is understood and agreed that the Company shall be liable for the payment of said bonds, in the event the collateral security deposited with said Trustees shall be, for any reason insufficient to fully pay the same." Payment on all bonds was stopped, and they all matured on the appointment of a receiver in July, 1925. It is conceded that at that time the collateral in the hands of the trustee was grossly inadequate to pay more than a small per cent of the bonded indebtedness. It must therefore be conceded that the bonds are corporation debts, and that the debt limit authorized by law was, by the bond issues, exceeded by several hundred thousand dollars. (1) It is contended, however, by the directors that the bondholders, in purchasing their bonds, agreed to and released the officers and directors of the corporation of and from any and all personal liability created by the statute. The bonds in question were issued under an indenture of trust, and all of the bonds contain upon their face and in the body of each bond the following reference to the provisions in the indentures of trust: "These bonds are issued by authority of the Board of Directors of the said Company and are secured by the deposit of collateral securities with the Central State Bank, Trustee, as provided in certain Indentures of Trust, * * * to all the provisions of whichthe holder hereof assents, by accepting this bond." (Italics ours.) The indentures of trust were available for the inspection of all bondholders, and contained the following provisions: "It is understood and agreed that the company shall be liable for thepayment of said bonds, in the event of the collateral security deposited with said Trustees shall be, for any reason, insufficient to fully pay the same, but the holder of any bondshall not have any claim based upon said bond or upon this TrustIndenture, against any incorporator, stockholder, officer ordirector, past, present or future of the Company, all suchliability being by the acceptance of any bond or bonds as part ofthe consideration for the issuance thereof, expressly released." (Italics ours.) Page 236 It is the settled law that one who accepts a written obligation is conclusively bound by its terms. Turnis v. Ballou, 201 Iowa 468, loc. cit. 473, 205 N.W. 746; Midland Mortg. Co. v. Rice,197 Iowa 711, 198 N.W. 24; Martin v. Toll, 196 Iowa 388, 192 N.W. 806. It is also the settled rule of law that if a party to a contract is able to read, has the opportunity to do so, and fails to read the contract, he cannot thereafter be heard to say that he was ignorant of its terms and conditions, for the purpose of relieving himself from its obligation. Wallace v. C., St. P., Minn. O. Ry. Co., 67 Iowa 547, 25 N.W. 772; Blossi v. C. N.W. Ry. Co., 144 Iowa 697, 123 N.W. 360, 26 L.R.A. (N.S.) 255; Spring Garden Ins. Co. v. Lemmon, 117 Iowa 691, 86 N.W. 35; Bonnot v. Newman, 108 Iowa 158, 78 N.W. 817; State Sav. Bank v. Deal,200 Iowa 490, 203 N.W. 293; Garner v. Johns, 182 Iowa 684, 166 N.W. 111; Crum v. McCollum, 211 Iowa 319, loc. cit. 323, 233 N.W. 678; Houchin v. Auracher, 194 Iowa 606, 190 N.W. 3. In Crum v. McCollum, 211 Iowa 319, loc. cit. 323, 233 N.W. 678, we said: "It is a well-recognized rule of law in this state that, if a party is able to read and has the opportunity to do so, but omits this precaution because of false statements by the adversary as to the contents of the instrument, his negligence in failing to read the instrument will estop him from claiming that the instrument is not binding." Plaintiffs claim that because the specific provision for a release is not set out in the bond itself, the bondholder is not bound thereby. The bonds in this case were issued under the indenture of trust, which was specifically referred to in all the bonds, by providing that "all the provisions of the Indenture ofTrust are accepted and assented to by the purchaser of the bondby the acceptance thereof." (Italics ours.) The effect of such a provision is similar to one contained in a note referring to a mortgage, given to secure it, wherein the provisions of the mortgage are referred to. By reference, such provisions, for all intents and purposes, become part or parcels of the original obligation. 9 C.J. 36; Babbitt v. Read (D.C.) 215 F. 395, loc. cit. 418; Babbitt v. Read (C.C.A.) 236 F. 42, loc. cit. 44; Fidelity Trust Co. v. Washington-Oregon Corp. (D.C.) 217 F. 588; Jordan v. Kavanaugh, 63 Iowa 152, 18 N.W. 851; Clinton Bridge Works v. Kingsley, 188 Iowa 218, 175 N.W. 976; City Nat. Bank Page 237 v. Ind. School Dist., 190 Iowa 25, 179 N.W. 947; Daeges v. Beh,207 Iowa 1063, loc. cit. 1066, 224 N.W. 80; Lamson v. Horton-Holden Hotel Co., 193 Iowa 355, loc. cit. 362, 185 N.W. 472, 26 A.L.R. 465; Deitrick v. Sinnott, 189 Iowa 1002, 179 N.W. 424; Carper v. Ridpath, 168 Iowa 22, 149 N.W. 841; Stoner v. Chicago G.W. Ry. Co., 109 Iowa 551, loc. cit. 556, 80 N.W. 569; Turnis v. Ballou, 201 Iowa 468, loc. cit 473, 205 N.W. 746; Midland Mortgage Co. v. Rice, 197 Iowa 711, loc. cit. 714, 198 N.W. 24; Martin v. Toll, 196 Iowa 388, loc. cit. 390, 192 N.W. 806; Crum v. McCollum, 211 Iowa 319, 233 N.W. 678; Bell v. Title Trust Guarantee Co., 292 Pa. 228, 140 A. 900, 57 A.L.R. 463; National Salt Co. v. Ingraham, 122 F. 40, 58 C.C.A. 356; McClelland v. Norfolk S.R. Co., 110 N.Y. 469, 18 N.E. 237, 1 L.R.A. 299, 6 Am. St. Rep. 397; McClure v. Oxford Twp.,94 U.S. 429, 24 L. Ed. 129. In Babbitt v. Read (C.C.A.) 236 F. 42, loc. cit. 44, the court said: "The plaintiff resorts, therefore, to the fact that the bonds did not incorporate the limitation, except by reference to the mortgage. Yet it has always been held that such a reference makes the provisions of the mortgage a part of the contract, as much in this case as in one where the instrument is prepared with the deliberate scrutiny of both sides. * * * It would indeed be only a fictitious protection to insist that such provisions as this should be incorporated in the bonds. The investor who would readwith so much care the whole of a bond so voluminous as it wouldbecome, were all the limitations included, would be as likely tolook at the mortgage, if the bond referred to the mortgage. (Italics ours.) * * * Those who wish in any case to read the extended text carefully have * * * the power to go to the printed mortgage, and are as likely to do so as though the bond itself contained all its limitations. Certainly we may not say that such a company is under a public duty against which it may not contract by sufficiently explicit language." In Fidelity Trust Co. v. Washington-Oregon Corp. (D.C.) 217 F. 588, loc. cit. 601, it was held that where bonds referred to an indenture of trust containing a "no recourse" clause, the purchaser of the bond had no rights against the stockholders. In that case the court said: Page 238 "By the foregoing provisions, the right of the bondholders to have recourse to the stockholders, on account of their liability for unpaid stock, was waived." In Bell v. Title Trust Guarantee Co., 292 Pa. 228,140 A. 900, loc. cit. 902, 57 A.L.R. 463, the court said: "Where a series of railway bonds secured by a trust deed bear upon their face a clear reference to the deed, holders of such bonds are put upon inquiry by recitals and charged with notice by the terms of the deed." Plaintiffs in this case were all intelligent people and well able to read. They knew, or must be held to have known, of thereference in the bond to the indenture of trust; knowing this they also knew they had an opportunity to secure a copy of the trust deed. Their failure to read the provisions of the indenture of trust, if they did fail to read them, cannot relieve them from the obligations provided therein. A simple request to the officers of the company or the trustee would have brought the information. The record fails to show any fraud or deception in the sale of the bonds. In fact, the company believed the collateral security deposited with the trustee was amply sufficient to protect the bondholders. This court has repeatedly held that mental assent to the promises in a contract is not essential. Lamson v. Horton-Holden Hotel Co., 193 Iowa 355, loc. cit. 362, 185 N.W. 472, 26 A.L.R. 465; Carper v. Ridpath,168 Iowa 22, loc. cit. 26, 149 N.W. 841; Stoner v. Chicago G.W. Ry. Co., 109 Iowa 551, loc. cit. 556, 80 N.W. 569; Crum v. McCollum,211 Iowa 319, 233 N.W. 678; Code 1931, section 11275. "It may be stated generally that, where a bond and another contract or instrument relate to and form one and the same transaction, or the bond refers to such other instrument or is conditioned for the performance of specific agreements set forth therein, such instrument with all its stipulations, limitations, or restrictions becomes a part of the bond, and the two should be read together and construed as a whole." 9 C.J. 36, section 59, citing a large number of cases. As the indenture of trust specifically releases the directors and officers from all liability for the debts of the corporation, and as the bonds recite that all provisions of the indenture are made a part Page 239 of the bond by reference, it is our conclusion that they become and are a part of the bonds as fully as though incorporated therein. [2] (2) The plaintiffs also contend that the release agreement is invalid for want of consideration. It is fair to assume from the record that at the time the bonds were issued, they were fairly secured by collateral, consisting of trust deeds, mortgages, and other instruments belonging to the corporation. All of this property was delivered to the trustee for the exclusive benefit of the bondholders and, as such, were removed from the general assets of the company, from which general creditors might otherwise have been reimbursed. This was part of the consideration for the purchase of the bonds. The surrender of these securities invaded the rights of the stockholders, by taking from the corporation this great volume of assets and segregating them for the exclusive benefit of the bondholders. The directors were also stockholders, and by the surrender of their interest as such in these securities, they parted with sufficient consideration to sustain the "nonrecourse" agreement referred to in the bond. In addition thereto, it is a well-settled rule of law that a contract for the benefit of a third party is enforceable by the beneficiary. Baker v. Bryan, 64 Iowa 561, 21 N.W. 83; Bosley v. Lammers, 157 Iowa 438, 138 N.W. 703; Marfield v. Cincinnati, D. T. Traction Co., 111 Ohio St. 139, 144 N.E. 689, 40 A.L.R. 357; Continental Corporation v. Gowdy, 283 Mass. 204, 186 N.E. 244, loc. cit. 251, 87 A.L.R. 1039; Pratt v. Fishwild, 121 Iowa 642, loc. cit. 648, 96 N.W. 1089; McElwain v. Stewart, 193 Iowa 1334, 188 N.W. 782. In the case of Marfield v. Cincinnati D. T. Traction Co.,111 Ohio St. 139, 144 N.E. 689, 691, 40 A.L.R. 357, loc. cit. 361, the court said: "The collateral security which takes away from the general creditors practically every hope of repayment out of the property of the corporation must be held to give rise to a supporting consideration in favor of the waiver." We are satisfied that the transfer of the collateral and the corporation's agreement to pay the bonds were sufficient consideration for the "nonrecourse" agreement. [3] (3) It is also contended that the liability created by section 8380 is of such a nature that an agreement to waive it is contrary to public policy. Public policy is that principle of law which holds Page 240 that no person can do that which has a tendency to be injurious to the public, or against the public good. The liability created by section 8380 was not in existence prior to 1897, and that statute was repealed in 1929 (Acts 43d General Assembly, chapter 12). There was no such liability prior to 1897 and there is no such liability now. Similar statutes have been repealed by practically all the states of the country. Although this court has not expressly passed upon this particular question, it is well to note that in nearly all the states where the question was raised, it has been uniformly held that a "nonrecourse" agreement, similar to the one in question, is not contrary to public policy. By the contract of purchase, the bondholders agreed to release the directors and officers from all personal liability. This was a matter of private contract between the purchaser and the corporation. Under the general law of partnership, each partner is liable for the debts of the partnership. Section 8380 creates a somewhat similar liability against directors of corporations, knowinglyconsenting to the creation of debts in excess of the statutory limit. Therefore as applied to corporations, and additional liability is placed upon its directors under certain circumstances. But this is simply a legal obligation created by statute and relates to private rights of creditors. We are unable to see "how the * * liability of a stockholder * * * can be a matter of public concern any more than the liability of a co-partner; * * * and we are not aware that it has ever been claimed that the latter liability has its foundation in public policy. It is merely a liability created by law, as it might be by contract, and is intended only for the benefit of those who may deal with corporations. It is but another fund to which the creditor may look when the social fund has been exhausted, and whether he chooses to look to it or not is a matter of no concern to the public." French v. Teschemaker, 24 Cal. 518. The liability statute in question declares simply for an additional liability against officers and directors. It does not provide against an immunity from liability therefore. If the statute had made provisions against the validity of a contract of release from the obligations of the statute, then an agreement to release therefrom would be against public policy. There is no such provision in the statute, and there is no reason why the parties for whose benefit Page 241 it was adopted could not agree to waive it as they might waive any other legal right. "It is well settled that creditors of a corporation may by contract release or waive all claims upon the personal liability of the stockholders for the debts of the corporation, and in the absence of fraud or deception, such a contract is enforcible. The contract may be oral as well as written. And the fact that the liability is founded on a constitutional provision makes no difference. Contracts of this character, * * may be made without violation of any principle of public policy or constitutional law." 14 C.J. 1040, section 1622. Text-writers and the great weight of authorities support this rule. 1 Cook on Corp. (8th Ed.) section 216; 13 Fletcher on Corp. (2d Ed.) section 6422; Morawetz on Private Corp. (2d Ed.) section 871; Callanan v. Windsor, 78 Iowa 193, loc. cit. 198, 42 N.W. 652; Marfield v. Cincinnati, etc., Traction Co., 111 Ohio St. 139,144 N.E. 689, 40 A.L.R. 357; French v. Teschemaker, 24 Cal. 518; United States v. Stanford (C.C.A.) 70 F. 346; Bush v. Robinson,95 Ky. 492, 26 S.W. 178; Kohn v. Sacramento Electric, etc. Co.,168 Cal. 1, 141 P. 626; Babbitt v. Read (D.C.) 215 F. 395; Babbitt v. Read (C.C.A.) 236 F. 42; Monowitz v. Brackenridge (Co. Ct.) 186 N.Y.S. 686; Carnahan v. Campbell, 158 Ind. 226, 63 N.E. 384; Spitzer-Rorick Trust Savings Bank v. Thompson, 107 Fla. 752, 143 So. 865; Robie v. Holdahl, 175 Minn. 44, 219 N.W. 945; Continental Corporation v. Gowdy, 283 Mass. 204, 186 N.E. 244, 87 A.L.R. 1039. As somewhat supporting this theory, we said in Callanan v. Windsor, 78 Iowa 193, loc. cit. 198, 42 N.W. 652: "We are aware of the provision of section 1082 of the Code. The primary object of those provisions was to protect creditors of the company. They should not be held to apply to a case of this kind where, by virtue of a valid agreement, to which the original creditor was a party, nothing was due or collectible on the stock of the shareholder." "Since a statutory or constitutional provision making the stockholders of a corporation individually liable for its debts is intended solely for the benefit of creditors, it is clear that it may be waived by them, and this may be either by express agreement or by their acts. There is no liability on the part of stockholders, therefore, if Page 242 the creditor, at the time he contracted with the corporation, excluded such liability by express agreement, and such a waiver, fairly made and supported by a valid consideration, is not contrary to public policy." 13 Fletcher on Corp. 830, section 6422. In Marfield v. Cincinnati, etc., Traction Co., 111 Ohio St. 139,144 N.E. 689, 40 A.L.R. 357, loc. cit. 361, the court said: "It is claimed that the liability of stockholders created by the Constitution * * is of such a nature that any contract whereby any creditor * * * agrees to waive the secondary liability is contrary to public policy and void. * * * `Public policy' is `that principle of the law which holds that no subject can do that which has a tendency to be injurious to the public or against the public good.' "While * * * freedom of contract and private dealing may be restricted by law, this power is only exercised where some positive harm would result to the people generally, or where it involves something more than a mere relinquishment of benefits secured by a constitutional or statutory provision. Examples of valid restriction are where contracts are calculated to defeat public justice or hinder competition in trade, or which affect public morals, and other matters of like nature. * * * It is difficult to see how any of these things will be affected either way by the liability or nonliability of stockholders where creditors voluntarily consent and agree to nonliability at the time the indebtedness is incurred, and especially where they receive other considerations. * * * We are not cited to a single case decided by a court of last resort where it has been directly decided that the waiver of a statutory or constitutional declaration of liability is against public policy and therefore void. On the other hand, counsel for the stockholders have cited us to numerous authorities * * * directly in point." In Monowitz v. Brackenridge (Co. Ct.) 186 N.Y.S. 686, the court says: "The position of the plaintiff * * * is * * * that the agreement to absolve the directors * * * is ineffective in law, as * * * inconsistent with public policy. * * * The cases * * * submitted by the * * * counsel * * * are not * * * applicable to the present case. * * * It may safely be said that the liability imposed on directors by the statute is entirely for the benefit of Page 243 persons contracting with the corporation. In a case of this character no rule of public policy is violated or disturbed when such persons, for whose benefit and protection the statute was created, waive that liability. * * `Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which courts are bound to enforce. They may stipulate away statutory and even constitutional rights, * * * and all such stipulations not unreasonable, not against good morals, or sound public policy, have been and will be enforced; and generally, all stipulations made by parties for the government of their conduct, or the control of their rights, in the trial of a cause, or the conduct of a litigation, are enforced by the courts.'" (In re New York, Lackawanna Western R. Co., 98 N.Y. 453.) In U.S. v. Stanford, 70 F. 346, 363, 17 C.C.A. 143, the court said: "It is well-settled law that the creditor of a corporation may, by express contract at the time the debt is incurred, waive his right to collect from the stockholders debts which the corporation may fail to pay. `If a person chooses to deal with a partnership or joint-stock company upon the terms that its funds, and they only, shall be available to make good his demands, he cannot afterwards depart from those terms, and hold the members individually liable, as if no such restriction had been agreed to.'" In Continental Corporation v. Gowdy, 283 Mass. 204,186 N.E. 244, loc. cit. 249, 87 A.L.R. 1039, the court said: "The no recourse clause is not invalid as against public policy. Generally speaking public policy requires compliance with statutes regulating the management of corporations. But whether the effect of any specific statute can be avoided by contract depends upon the purpose for which the statute was enacted. * * * `Where laws * * * are designed solely for the protection of rights of private property, a party who may be affected can consent to a course of action which if taken against his will would not be valid,' and is applicable where * * * a party * * * agrees to discharge liabilities which may result from a course of action. "The purpose[s] of the statute * * * are to be determined in the light of the principle that a `statute imposing individual liability for corporate debts is to be construed strictly, and liability Page 244 is not to be extended beyond the limits prescribed by those provisions of the statute.' * * The statutory provisions * * * are designed solely for the benefit of creditors. * * * In sustaining the validity of the no recourse clause in a bond against the contention that it was contrary to public policy it was suggested that such a clause might be in the interest of sound policy in order to reserve the stockholder's liabilities for the benefit of unsecured creditors. * * * The secondary liabilities are created by statute solely for the benefit of creditors, and creditors, or some of them, agree, so far as they are concerned, to look to the primary liability of the corporation for payment of its obligation rather than to secondary liabilities therefor. Nor do we perceive any adequate reason in public policy for limiting the effect of a no recourse clause in the case of directors to secondary liabilities based upon statutory violations occurring before the bonds were issued. * * * The statutory provisions in question are `for the protection of rights of private property' of creditors, * * * and the no recourse clause affects only the `rights of private property' of the bondholders who are parties thereto. * * * Clearly it is for the advantage of all persons dealing with a corporation that its directors comply with statutory requirements, but it is at least debatable whether relinquishment by bondholders of their right to enforce secondary liabilities arising out of such violations is for the advantage or disadvantage of other creditors. * * * In any event, in the absence of a legislative declaration of public policy, it cannot be said that the bondholders owe such a duty to other creditors that they cannot relinquish their purely private rights to enforce secondary liabilities of directors because such relinquishment may tend in some degree to encourage violations of statutes passed solely for the benefit of creditors. Obviously the statutes in question are not criminal in nature so that an agreement in advance to discharge secondary liabilities of directors tends to stifle prosecution for such violations. * * * No authoritative decision adverse to the result reached by us has come to our attention. Cases like Downer v. Union Land Co. of St. Paul, 113 Minn. 410, 129 N.W. 777, and Small v. Sullivan,245 N.Y. 343, 157 N.E. 261, unlike the case at bar, deal with immunity from future fraudulent acts and are distinguishable in accordance with established principles." In Spitzer-Rorick, etc., Bank v. Thompson, 107 Fla. 752,143 So. 865, loc. cit. 868, the court said: Page 245 "The statute merely gives one who transacts business with a corporation an additional right against its officers and directors when the treasurer's affidavit is not filed as directed. This is a right personal to the individual which he may waive if he desires." In Babbitt v. Read (D.C.) 215 F. 395, loc. cit. 417, the court said: "The * * mortgage clearly referred to any right or claim, statutory or otherwise, and the explanatory clause, `it being expressly agreed and understood that this mortgage and the bonds secured hereby are solely corporate obligations, * * ' made additionally plain * * the intent of this clause. Such a clause is one quite familiar in bond issues and unless used as a part of a scheme to defraud, it is not only not against public policy,but * * * is a fair and proper protection with which stockholdershave the right to surround themselves. [Italics ours.] * * * The books are full of instances where some liability, of which no one thought at the time, arises thereafter when unexpected disaster overtakes an enterprise. The `no recourse' clause is designed to protect against the unexpected and uncontemplated. The case at bar is a striking illustration of just the kind of situation to guard against which a clause of this character is erected, and erected so plainly as to give fair notice to any one buying the bonds. Here these defendants and their associates never supposed for a moment * * * that they would be subjected to any suit for failure to pay up subscriptions. The bond issue was not overdone, competent lawyers had been employed, a competent expert had examined the property, and the day this mortgage was executed each interested party undoubtedly looked forward to a successful future for the property. To say now that the owners of these bonds, who did or could look at the property itself for their security, can brush aside the `no recourse' clause would be to capitalize an afterthought." In Robie v. Holdahl, 175 Minn. 44, 219 N.W. 945, the court said: "It is settled that the creditors of a corporation may waive their right of recourse to the liability of the stockholders for the payment of a debt of the corporation." Of similar import are the other cases above cited. Page 246 In view of the substantial unanimity of the authorities supporting this rule in other states where this question has been presented, we are constrained to hold that the waiver agreement in question was not contrary to public policy. The question involved relates more properly to a question of private rather than public rights. For the reasons hereinabove set out, we conclude that the ruling of the lower court on this branch of the case is correct, and it is our conclusion that the bondholders, under the facts in this case, have no recourse against the directors. [4] II. The next question for consideration relates to claims of general creditors. Although the nonrecourse agreement released the directors from personal liability for the excessive debts created by the bonds, they would be liable for any additional general indebtedness knowingly consented to by them. The bonded debt may be considered in connection with general debts in determining the liability to general creditors. As the authorized indebtedness was exceeded by the creation of the bond issues, and as they were consented to by the directors and officers, it necessarily follows that they are liable for any additional general indebtedness, "knowingly consented" to by them. The directors contend that they are not liable for any additional general indebtedness unless they knowingly consented thereto. Section 8380 provides that "if the indebtedness * * shall exceed the amount * * * permitted by law, the directors and officers * * * knowingly consenting thereto shall be personally and individually liable to the creditors * * * for such excess." (Italics ours.) The directors contend that they had no knowledge of, and did not consent to, the creation of the additional general indebtedness, and are therefore not liable thereon. The statute creates a liability only where the directors "knowingly consent" to debts exceeding the limit permitted by law. This has been the construction placed upon the statute by our court. Hines Lumber Co. v. Marquardt, 117 N.W. 666; Parsons v. Rinard Grain Co., 186 Iowa 1017, 173 N.W. 276. In Hines Lumber Co. v. Marquardt, supra, loc. cit. 667, we said: "It is obvious, we think, that this statute does not provide for a recovery on account of mere inattention or negligence on part of the officers and directors sought to be charged, but that personal liability can be enforced only where consent is given to the making of the indebtedness with actual knowledge that the limit has already been reached, or is by such act being exceeded. Constructive knowledge, Page 247 or knowledge which might have been obtained had the defendants not been negligent, is not enough. Patterson v. Mfg. Co.,41 Minn. 84, 42 N.W. 926, 4 L.R.A. 745, 16 Am. St. Rep. 671; Lewis v. Montgomery, 145 Ill. 30, 33 N.E. 880. We have examined the record with care, and, while the evidence is abundant on which to sustain a recovery should defendants be held liable in this action for negligence and want of attention to their duties as officers and directors, there seems to be none to sustain a finding that they consented even tacitly to the contracting of indebtedness which they knew to be in excess of the authorized limit." In Parsons v. Rinard Grain Co., 186 Iowa 1017, loc. cit. 1030, 173 N.W. 276, 280, we said: "Did these plaintiffs knowingly consent to the creation of an indebtedness in excess of two-thirds of the paid-up capital stock? In the connection used, `knowingly' obviously means, with knowledge that the indebtedness exceeds that permitted by law: that is, two-thirds of the capital stock. Such want of knowledge may not be inferred from mere inattention or neglect on the part of the officers and directors sought to be charged. Actual knowledge is required; constructive, or that which might be obtained by the exercise of due care, is not enough. * * Norare we able to find any evidence that plaintiffs, or any of them,were aware that Neyens, as manager, bought the corn and oats * ** and issued checks * * * until long after this was done. Thepurchase appears to have been on the manager's own motion [italics ours] and not at the suggestion of or to carry out the scheme of the officers or directors of the company. The worst that can be said is that these plaintiffs, with other directors, after knowing that the capital had been wiped out and debts created * * * left the manager without more definite instructions than he had been acting on, which were none at all. The neglect of the officers and directors of this company may well be condemned, for they gave little attention to the proper discharge of their duties as such, and utterly failed to appreciate their obligations toward the shareholders and the public with which the company was dealing." In the Parsons case we quote with approval the following language from Lewis v. Montgomery, 145 Ill. 30, 33 N.E. 880, loc. cit. 884: Page 248 "The words * * should be interpreted according to their plain and obvious meaning. * * * The liability is created only where the indebtedness of the corporation exceeds the amount of the capital stock, and is imposed only upon the directors and officers assenting to such excess of indebtedness." It may be conceded that the directors had knowledge of the excessive indebtedness created by the bonds, and that in the absence of the "no recourse" agreement, they would have been liable for that excess. The obvious purpose of the statute is to make the directors personally liable only for any excess ofindebtedness knowingly consented to by them. Their liability, for the excessive debt created by the bond issue, was waived by the bondholders and they would be liable for the additional indebtedness, provided it was knowingly consented to by them. Their knowledge that the debt limit had been exceeded by the bond issue would not necessarily make them liable for the additional general indebtedness unless they "knowingly consented" thereto. "There is no rule of law which charges a director or stockholder of a corporation with actual knowledge of its business transactions merely because he is such director or stockholder." Commercial Sav. Bank v. Kietges, 206 Iowa 90, loc. cit. 98, 219 N.W. 44; Rudd v. Robinson, 126 N.Y. 113, 26 N.E. 1046, 12 L.R.A. 473, 22 Am. St. Rep. 816; 3 Cook on Corp. (6th Ed.) 727. It can hardly be said that, because certain persons were directors when the "bonded" debt was created, their liability for all additional debts would continue indefinitely, even though such debts were created long after they ceased to be directors, and without their knowledge and consent. The record shows that Directors Cownie, Hargrove, and Parker were no longer on the board of directors when the debts, for which judgment was rendered, were created. Hargrove left the board in January, 1923; Cownie in January, 1925; and Parker in January, 1925. The indebtedness for which judgment was rendered was not incurred until several months thereafter as shown by the schedule set out in the following division of this opinion. Neither does the evidence show that any of said directors, except Howell, knowingly consented to the creation of such additional debts, or had any knowledge whatever about them when they were incurred. Directors Cummins and Taylor may have had such knowledge but the action was continued as to them. Page 249 The burden of proof rested upon the creditors to show that the directors sought to be charged for the additional debt knowingly consented thereto. From an examination of the evidence, it is our conclusion that this burden has not been met, as to defendants Cownie, Hargrove, Parker, Plumb, and Page. The evidence fails to show that such directors had knowledge of or consented to the creation of the debts due general creditors. It is therefore our conclusion that the Directors Plumb, Parker, Page, and Cownie, against whom judgment was rendered, are not liable for the additional general indebtedness. No appeal from this part of the judgment was taken by the creditors in whose favor it was entered, and no appeal was taken therefrom by Directors Howell and Hargrove. The judgment against Howell and Hargrove, not being appealed from, must therefore stand. III. Judgment was rendered against defendant Directors Page, Cownie, Hargrove, Howell, Parker, and Plumb in favor of certain creditors as follows: Creditor Date of Claim Due Date Amount --------- --------------- ----------- ----------------- Queal Lumber Co. June 3, 12, and Aug. 3, 12, and $13,863.15 13, 1925 13, 1925 Jewett Lumber Co. June 7, 8, and Aug. 7, 8, and 7,158.72 27, 1925 27, 1925 Globe Machinery June 8, 15, 1925 Aug. 8, 15, 1925 5,976.30 Supply Co. L.H. Chamberlain March 25, 1925 April 1, 1927 2,785.25 Iowa Pipe Tile Co. May 16, 1925 Aug. 16, 1925 407.93 ------------ Total $30,191.35 The court held that the claims of all other creditors were barred by the statute of limitations. What has been said disposes of all questions raised except as to the liability of defendant Howell upon claims of general creditors not allowed. Howell was president of the corporation and he, with two others, were appointed managing officers thereof. He was president during its entire existence, and one of the exclusive managers of the company to whom was committed the management of its affairs during the period of its existence. It is fair to assume from the record as shown by the minute books, books of account, and other facts and circumstances that the defendant Howell, as chief managing officer of the corporation, knew of the creation of the debts due the general creditors. It is therefore our conclusion that Howell is liable for such debts of general creditors not allowed by the court, unless they are barred by the statute of limitations. Page 250 [5] It is contended by defendants that the liability of directors in assenting to debts exceeding the statutory limit is in the nature of a penalty and that an action thereon must be commenced within two years under paragraph 3 of section 11007 of the Code, and there is some plausibility in that contention. We have held, however, in Parsons v. Rinard Grain Co., 186 Iowa 1017, loc. cit. 1031, 173 N.W. 276, that the statute providing the liability against directors under section 8380 "is not penal, but contractual, in its nature, and the consequence to the officer or director is that there is imposed on him a liability similar to that of surety for the company." As supporting this rule, see 13 Fletcher on Corp. 643; Smith v. Andrew, 209 Iowa 99, loc. cit. 103, 227 N.W. 587; Hirning v. Hamlin, 200 Iowa 1322, 206 N.W. 617. The statute of limitations for a recovery under section 8380 would therefore begin to run when the debt accrues. Section 11007 of the Code provides that: "Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared." Subdivision 5 of that section provides that in actions "founded on unwritten contracts, those brought for injuries to property, or for relief on the ground of fraud in cases heretofore solely cognizable in a court of chancery, and all other actions not otherwise provided for inthis respect, within five years." (Italics ours.) This action grows out of a liability created by statute. It is not founded on a written instrument, it is not brought for injuries to property or relief on the ground of fraud, but is founded upon a strictly statutory liability and is therefore included within the terms of paragraph 5, which includes "allother actions not otherwise provided for in this respect, withinfive years." The creditors' cause of action under the statutory liability accrued when the indebtedness due them was created. All of the creditors' claims not allowed and those allowed against Cownie and Parker accrued more than five years prior to the commencement of this action. Such was the holding of the lower court, and we think it was correct. Directors and stockholders are not liable under such statutes for claims barred by the statute of limitations. 14 C.J. 1038. The liability in this kind of an action is statutory in character, and in order to hold the officers and directors liable thereunder, the *Page 251 action upon the excessive indebtedness must be brought within five years after the indebtedness was created. All actions therefore accruing more than five years prior to the commencement of this action, which was July 29, 1930, are therefore barred. Other questions are raised which may have a bearing upon the claims against Directors Cummins and Taylor when presented. In view of the foregoing conclusions, a consideration of them is unnecessary at this time. The motion to dismiss plaintiff appellees' cross-appeal is overruled. For the reasons hereinabove set out the judgment and decree of the lower court against defendants Cownie, Parker, Page, and Plumb is hereby reversed. The judgment and decree in all other respects is affirmed and the case remanded for a decree in harmony herewith. — Affirmed in part; reversed in part. MITCHELL, C.J., and STEVENS, ALBERT, EVANS, KINDIG, ANDERSON, CLAUSSEN, and DONEGAN, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431440/	Charles Lewis Richardson for many years prior to his death had been employed by the Commission of Conciliation, United States Department of Labor, and his duties were to proceed to wherever he was ordered to go to mediate and settle disputes between employers and employees. Late in the afternoon of Saturday, February 5, 1938, he being then in the city of Washington, D.C., Richardson received orders from his superior officers, to proceed forthwith to Page 321 Langley Aviation Field, Virginia, where under sealed orders he was directed to take a United States Army airplane then in waiting, with Major William C. Goldsborough of the United States Army as pilot to the airport at Miami, Florida, then to take an airplane to Porto Rico and act as mediator in a longshoremen's strike there pending. In obedience to said orders Richardson immediately proceeded to Langley Field. There he met Major Goldsborough, who had been ordered by the War Department to fly Richardson to Miami. The plane to be used was an army airplane and was known as an attack or combat plane. It was not a plane for which a certificate had been issued to carry pay passengers and was not operated on a regular schedule between two or more airports. Army planes are operated wholly independent of civil aeronautic regulations. The story of the flight and of the death of Richardson is not in dispute. It is told by Major Goldsborough, the pilot of the ship. In the plane used, the pilot sat forward and the passenger behind. The cockpits were closed by sliding glass hatches, which could be either opened or closed. It had a top speed of about 200 miles per hour; was equipped with an interphone communication by which the pilot and passenger could converse with each other; and was also equipped with a radio. When Richardson reached the airport he met Major Goldsborough, who asked him if he had flown before, the Major did not remember how Richardson answered this question. The Major then asked him if he was familiar with parachutes and Richardson said "No." He then instructed him in the use of the parachute, gave him a brief description of how it was made, and the procedure in case it was necessary to make an emergency jump. At about the hour of 10 o'clock on the night of February 5, 1938, with Major Goldsborough piloting the army plane, Richardson left Langley Field. Page 322 The plane climbed to an altitude of 3,500 feet and the pilot discovered he was flying in clouds, encountered some rain, and the air was extremely rough. He immediately started climbing in order to reach smoother air, and to get on top of the clouds reaching an altitude of 9,000 feet. It was very cold at this altitude and the heater in the plane was not working properly, so the pilot descended to an altitude of 1,000 feet, hoping to get below the clouds. The pilot tuned in on several weather stations to get the forecast and he received information that conditions were better at Miami and Jacksonville and he changed his course slightly in order to contact the Charleston radio beam. The radio beam is used in the operation of an airplane to form a pathway or route. If you go to one side of the beam you will receive a signal "N" on the radio in the airplane. If you go to the other side you will receive the letter "A." When you are directly on the course, you receive a continuous hum on the radio, and every one or two minutes, you receive the station signal. Thus in case of bad flying weather you would have a true course flying the beam. Shortly before they reached Charleston the radio reports showed that the weather was very unfavorable for flying but that it was clear at Miami. The ceiling other places was very low. By the use of the word "ceiling" in aviation is meant the height from the ground that an overcast or clouds might be contacted, or where a horizontal visibility is lost. They passed Charleston and shortly thereafter the cockpit lights fluttered and the radio became very "buzzy and dim." About 30 minutes later the radio became very weak, and then cut out entirely, also the interphone ceased to function. The Major testified that he did not worry because he was on a direct course to Jacksonville and he had been advised by the weatherman that there was a ceiling of 1,500 feet there. When he decided he was in the vicinity of Jacksonville he descended to a height of about 500 feet, and then to 300 feet in the hope that he might be able to contact the ground. He found no ceiling whatsoever and decided to continue south in Page 323 the hope that he might run out of the fog. He continued south until he noticed his gasoline was running low, and not knowing whether he had drifted out to sea, he turned the plane back to where he knew land was. The pilot then climbed to an altitude of 2,000 feet, and cut down on the speed of his motor in order to save gas, in the hope that he could keep the plane in the air until daybreak, hoping that with the coming of the dawn the fog would clear. He advised Richardson of the situation by writing him a note. The plane stayed in the air until after daybreak and the pilot descended to an altitude of 500 feet, on five or six occasions, but at no time was there sufficient ceiling or a horizontal visibility near the ground to make any attempt to land without the prospect of a dangerous crash. There was little gasoline left and the pilot climbed to an altitude of 3,500 feet, where he cruised about until the fuel was consumed. He wrote a note to Richardson explaining the situation and telling him it had become necessary for both of them to leave the airplane and use their parachutes. The Major asked Richardson if he remembered how to use the parachute and he nodded his head. The pilot wrote him a note and told him to get in position to jump but not to leave the ship until he told him to. Richardson opened the hatch and got out on the side of the cockpit. The pilot leveled the ship, and Richardson left the plane. He cleared the airplane and the pilot watched him until he reached an altitude of 2,000 feet. The parachute did not open, whether Richardson failed to pull the release or the parachute failed to work is not and will not ever be known. Richardson was killed in the fall. Shortly after Richardson left the ship, Major Goldsborough jumped out, but through the use of his parachute landed safely. The airplane crashed to the ground and was a complete wreck. At the time Richardson met his death he was a member in good standing of the Iowa State Traveling Men's Association, holding two certificates of membership therein. The beneficiary named in the certificates commenced this action to recover from the insurance company the amounts specified in the certificates. A jury was waived and the cause submitted to the court, which Page 324 entered judgment in favor of the plaintiff, the beneficiary, in the amount prayed. The insurance company has appealed. We are confronted with many interesting questions, but there are few decisions to guide us as the airplane is a new means of transportation and few are the cases that have as yet reached the courts. [1] It was the contention of the appellant that it was not liable because by the terms of the certificate the bylaws providing therefor constituted a part of the contract. The parts of the bylaws pertinent to the question to be presented upon this appeal are as follows: "Article VII "Benefits. "Section 1. Subject to the conditions, limitations and exceptions contained herein, * * * whenever a member in good standing is the holder of Class A or Class B certificate or certificates of membership therein and shall through external violent and accidental means, receive bodily injuries which shall, independently and exclusively of all other causes result, within ninety (90) days, in the death of the member, his beneficiary shall * * * be indemnified in the sum of Five Thousand Dollars ($5,000.00) per membership, provided member's age at the time of his death is under seventy (70) years. "CONDITIONS, LIMITATIONS AND EXCEPTIONS. "G. The association shall not be liable for death, disability or specific loss, * * * or for injuries received in, on or caused by any aerial conveyance, except while the insured is a passenger in or on or while entering or leaving a passenger aeroplane or dirigible airship having a United States Government license, operated by a pilot licensed by the United States Government to carry pay passengers and operated on a regular schedule between two or more airports." The appellee does not deny that the bylaws are a part of the certificate of insurance but claims that appellants waived the provision of paragraph G, section 1 of the articles of bylaws. Page 325 To this the insurance company replies. We quote from appellant's brief: "It is apparent from a casual reading of the two provisions of the By-Laws, to-wit, Section 1 of Article VII and Paragraph G of the `Conditions, Limitations and Exceptions', that the latter clause is not a forfeiture provision. It does not provide that the insurance shall be forfeited in case the member shall take a ride in or on an airplane or other aerial conveyance, except as a passenger upon the kind of a conveyance designated in the qualification of the exception. There is no prohibition in Paragraph G against the member riding in any kind of an aerial conveyance he desires. There is no penalty or forfeiture of his rights as a member in case he does so. The provision is merely that the insurance benefits in the event of an injury related to such aerial conveyance shall be suspended. On the other hand, the contract is in force with respect to all other hazards assumed by the contract of membership. For injuries sustained, otherwise than as a result of causes excepted, the liability remains, even though the member may many times have participated in balloon ascensions, parachute jumps, or airplane races. For injuries, fatal or non-fatal, sustained as a result of causes unrelated to the excepted hazard, the member is still entitled to the benefits of the contract; notwithstanding the fact that he may on another occasion expose himself to hazards not assumed by the contract." So we are confronted here with the question whether this was a forfeiture clause, or merely a limitation of risk. This court in the case of Melton v. Royal Highlanders, 194 Iowa 352, 358, 189 N.W. 787, 790, said: "This classification applied to all members of the society who may even occasionally do such work. The penalty is that their insurance shall not be deemed to cover risks arising out of such occupation or work. This is not a forfeiture provision. It is a restricted insurance. The defendant is a mutual assessment company, and its rates of assessment are predicated upon Page 326 the reduced hazard of this restriction. Presumptively, the insured never paid an assessment as indemnity for any risk growing out of such occupation. The injury which resulted in the death of the insured did grow out of the occupation of a fireman. The insured received his fatal injury while attempting to board a fire truck which was proceeding to a fire. "The net result of our analysis of the contract is: Though a member in good standing, the deceased was not insured against injuries growing out of the occupation of fireman." In the case of Pierce v. Homesteaders, 223 Iowa 211, 217, 272 N.W. 543, 546, this court said: "It has been repeatedly held that while a forfeiture of benefits contracted for may be waived, the doctrine of waiver or estoppel cannot be successfully invoked to create a liability for benefits not contracted for at all." Citing McCoy v. Association,92 Wis. 577, 66 N.W. 697, 699, 47 L.R.A. 681. In the McCoy case, cited by our court, there was involved an exception of the risk of death due to suicide. The court of Wisconsin said: "* * * but we are unable to see how the settled rules under which it is held that a forfeiture or condition of forfeiture may be waived applies here. What is insisted upon is not really the waiver of a forfeiture, or an equitable estoppel against insisting upon a condition of the policy, the violation of which would otherwise work a forfeiture. It is a misuse of the term to so speak of the loss of benefits under the certificate in question. What is here sought is not to prevent a forfeiture, but to make a new contract; to radically change the terms of the certificate so as to cover death by suicide, when by its terms that is expressly excluded from the contract. * * * After a loss accrues, an insurance company may, by its conduct, waive a forfeiture; or by some act before such loss it may induce the insured to do or not to do some act contrary to the stipulations of the policy, and thereby be estopped from setting up such violation as a forfeiture; but such conduct, though in conflict with the terms Page 327 of the contract of insurance and with the knowledge of the insured, and relied upon by him, will not have the effect to broaden out such contract so as to cover additional objects of insurance or causes of loss." In Ruddock v. Detroit Life Ins. Co., 209 Mich. 638, 177 N.W. 242, 243, there was involved a policy providing: "`It is unrestricted as to travel, residence, or occupation and shall be incontestable after one year from date, except for non-payment of premium and except for naval or military service in time of war, without a permit, which are risks not assumed by the company * '" The policyholder was inducted into the service and died at Camp Custer. Notice of his death was given to the company, which sent proofs of loss and suggested the appointment of an administrator, inasmuch as the benefits were payable to the insured's estate. Proof of claim was furnished and acknowledged, after which liability was denied on account of the above provisions. Its effect was sought to be avoided by the plea of waiver based upon the requirement of proof of loss, the suggestion with respect to the appointment of an administrator, and the expense incurred in so doing. The court denied the waiver, saying: "The cases where the doctrine of waiver, or estoppel, has been applied have largely been cases where the insurance companies have relied on a forfeiture of the contract, upon breaches of the warranties and conditions to work such forfeitures; and in many such cases this court and other courts of last resort have held that if the companies have led the other party, to his prejudice, to his expense, to understand that such forfeitures, such breaches of warranties and conditions, would not be insisted upon, then the companies would be estopped from asserting such defenses. But here the defendant makes no claim of forfeiture of the contract; on the contrary, it is insisting upon the contract itself, and insisting that by its terms it did not insure the deceased when engaged in military services in time Page 328 of war. To apply the doctrine of estoppel and waiver here would make this contract of insurance cover a loss it never covered by its terms, to create a liability not created by the contract and never assumed by the defendant under the terms of the policy. In other words, by invoking the doctrine of estoppel and waiver it is sought to bring into existence a contract not made by the parties, to create a liability contrary to the express provisions of the contract the parties did make." And so in the case at bar, the doctrine of waiver, if it was applied would in reality write a new contract of insurance covering a condition not included in the policy written. It would have the effect of not merely preventing the forfeiture of the contract, but would impose upon the insurer liability, on account of an accident occurring under circumstances, and as a result of hazards not assumed by the contract. The appellee seeks in this case to create by waiver a contractual liability not contained in the policy itself. That doctrine cannot be made to serve that purpose. [2, 3] It is next contended by the appellee that the death did not result "in or caused by any aerial conveyance." That the airplane was in good mechanical condition; that Richardson did not have to jump; that he might have remained in the airplane; that he left the airplane voluntarily. Clearly under the terms of the policy the appellant did not assume the risk of air travel except those risks incident to travel as a passenger on a plane licensed to carry pay passengers and operating regularly between two or more airports. There can be no question but that the army plane in which Richardson was traveling does not come within the exceptions contained in the policy. The airplane in which Richardson was riding was 3,500 feet in the air, in a fog so dense that the pilot would not attempt to land. The gasoline had been exhausted. The motor could not be operated without fuel. The pilot ordered Richardson to jump. It was the airplane that placed this unfortunate individual 3,500 feet in the air. It was the failure of the airplane Page 329 to operate, caused by running out of fuel that forced Richardson to jump. The accident happened while he was in the airplane, and the fact he attempted to save his life by jumping from the plane in the hope that the operation of the parachute would minimize the consequence of the airplane failure is immaterial. The accident which created the hazard was the combination of weather conditions and the lack of fuel. When they combined, all the forces which culminated in Richardson's death were in motion, and the only question remaining was whether or not the logical sequences could be interrupted. As we read this record, Richardson had no choice but to leave the plane and hope and pray that the parachute would land him safely. The plane could no longer be operated. It was impossible to land. From 3,500 feet in the air the plane was bound to fall to the earth, just as it did, and be completely destroyed. In oral argument counsel for appellee was asked by a member of the court if he would consider that Richardson left the plane voluntarily if the plane had caught on fire. As the writer of this opinion remembers it, the question was not answered. Certainly under the circumstances in this case, Richardson was forced to leave the plane, just as much as if the plane was afire. Appellant cites the following examples. We quote: "We apprehend that no one would contend that a person who drowned after abandoning a wrecked boat and attempted to swim to shore did not die as a result of the ship wreck. Would it be contended that any person who got into a life boat after the wreck of the Lusitania or the Titanic, which never reached safety, was not killed as a result of the disaster to the ship? Would it be said that a person abandoning a ship wreck in mid-ocean left it in safety merely because he was alive and clung to a spar or life-preserver, or was in a life-saving boat, in the hope that he might be rescued?" In Federal Life Ins. Co. v. White, Tex. Civ. App., 23 S.W.2d 832, 833, there was involved a clause in an accident insurance policy which provided for the payment of a specific sum for Page 330 death "sustained by the wrecking or disablement of any vehicle or car operated by any private carrier or private person in which the insured is riding or by being accidentally thrown therefrom." The assured left Hanna, Wyoming, for the purpose of driving to Medicine Bow, a distance of about 30 miles. The temperature was 10 or 15 degrees below zero. After traveling about 15 miles the car became disabled to such an extent that it could not be operated or driven further. White abandoned the car and started to walk. After struggling on about 2 miles he was overcome by exposure to the cold, lost consciousness, and died as a result of the freezing. It was admitted that the death was sustained as a result of accidental means as the policy provided, but it was denied that the disablement of the car caused the death. The court said: "The language of the policy does not require, as a prerequisite to liability, that insured's death shall be sustained immediately by the disablement of his car, but requires only that it be sustained by the disablement of his car." By virtue of the other terms of the policy, the court construed the words "sustained by" as the equivalent of "caused by" or "resulting from," and then said: "But appellant contends he received no injury by reason of the disablement of the car, but we think it reasonable, and the trial court was authorized to find, that immediately on leaving the disabled car he suffered injury in becoming cold, and in his efforts to find shelter he walked on, getting colder and colder, until he lost consciousness and sank down in a snowdrift, where he was found the next day practically frozen to death. We think the agreed statement, in effect, shows the disablement of the car was the proximate cause of the deceased's death. His death was sustained immediately by freezing, but the disablement of the car caused him a long-continued exposure to the cold, and this long-continued exposure to the cold caused him to freeze to death. Clearly, we think, the disablement Page 331 of the car was the sole proximate cause of the assured's death." In Wright v. Aetna Life Ins. Co., 3 Cir., 10 F.2d 281, 282, 46 A.L.R. 225, there was involved a clause in an accident policy providing for an additional payment as indemnity against "bodily injuries effected solely through external, violent, and accidental means, while he is riding in, operating, or caring for a private automobile." Assured was riding in an automobile of a friend, who was driving. They were driving down a mountain road and the driver, in attempting to change gear, temporarily at least, lost control of the car. On regaining control he found the deceased had disappeared, and, going back, found him lying face down on the road. He died without regaining consciousness. The question was, "Did the policy cover such an accident?" "That the physical injury suffered by the deceased was inflicted when he struck the road, and not when he was in the car, is clear, and therefore, adhering to the literalism of its policy the company contends the deceased, when injured, was not `riding in the car', and therefore, looking at the injury and accident as occurring at the instant his head struck the roadway the situation was one not covered by the policy. On the other hand, it is contended that the real accident was losing control of the car, and if the deceased was then riding in the car, and one of the natural and to be expected results of that lost control was that he might leave the car, then the policy covered the situation." The court also said: "In the present case the real accident was not when Wright's head struck the road, but when car control was lost. Such lost car control was the critical accident time, and the dominating factor which subjected the riding passenger to present peril and later death. "That constraining, existing accident might result in different, and to be expected, consequences; but in any event, the accident of lost car control was the proximate cause of the Page 332 rider's death, whether the swerving of the car threw him out physically, or the nervous strain caused him to leap in fright, hysteria, or in answer to the instinct of self-preservation. What followed was an injury more or less commonly incident to such lost car control. We cannot bring ourselves to the belief that the parties to this policy meant that this usual result of loss of car control was not to be covered by this policy, for, if it was, no one would care to pay a premium for automobile protection. To us it is more reasonable to believe that, assuming the insured desired protection `while riding in' a car, and a fair-minded insurance company meant to sell and give him such protection, that the common contracting purpose of the two would be that the insured was to be protected from the time he started riding at a journey's beginning and continued until he ceased riding at its end, and that the words `while riding in' the car referred to the intervening riding time, and if, during such time, injury was suffered from an accident which might reasonably be expected to happen to one so `riding in' a car, that the words `while riding in' were meant to cover and did cover a situation such as we now have." In the above-cited case the federal court says that "the real accident was not when Wright's head struck the road, but when car control was lost," so in the case at bar, the real accident happened when the airplane ran out of fuel, and in a dense fog could no longer be operated. At that moment it became necessary for Richardson to leave the plane. He was forced out of the plane by the condition it was in, and unfortunately, the parachute, which he had hoped and no doubt prayed would save his life, did not function as it was supposed to do, and he fell directly from the airplane to the ground. There was a motion to dismiss submitted with the case. It has been duly considered and is hereby overruled. It necessarily follows that the case must be and it is reversed. — Reversed. HAMILTON, C.J., and HALE, STIGER, BLISS, MILLER, and SAGER, JJ., concur. *Page 333	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431441/	I. The record herein is somewhat confusing. The note in suit was for $1,500, drawn to the defendant Reed, as payee. It was apparently indorsed in blank by the defendant Reed to his brother, G.L. Reed, and by G.L. Reed to this plaintiff. G.L. Reed died before the bringing of this suit. The 1. BILLS AND original note, representing the original NOTES: indebtedness, was given on March 1, 1921, and indorsement: negotiated to the plaintiff on March 3d of the in blank: same year. It was renewed many times in its parol original form. The note in suit is the last modifica- renewal thereof. This defendant testified that tion. the original agreement was repeated at the time of every renewal. At the early stage of the trial, and while the defendant was putting in his evidence, the trial court appeared to be of the Page 343 opinion that the oral evidence was admissible. This view would naturally be induced by a consideration of our earlier cases on the subject. After the defendant rested, the court came to the conclusion that oral evidence was not admissible to contradict the blank indorsement and its legal effect, and it ruled accordingly. This ruling was in accord with our holding in Porterv. Moles, 151 Iowa 279, wherein we held that the Negotiable Instrument Act had defined the legal effect of a blank indorsement of a negotiable instrument, and that the legal effect of such indorsement could not be contradicted by oral evidence. The provisions of the Negotiable Instrument Act which are especially applicable are Section 63 and 66 thereof (Sections 9523 and 9526, Code of 1924). These are as follows: "9523. When person deemed indorser. A person placing his signature upon an instrument otherwise than as maker, drawer, or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity." "9526. Liability of general indorser. Every indorser who indorses without qualification, warrants to all subsequent holders in due course: "1. The matters and things mentioned in Subdivisions 1, 2, and 3 of the next preceding section; and "2. That the instrument is at the time of his indorsement valid and subsisting. And, in addition, he engages that on due presentment, it shall be accepted or paid, or both, as the case may be, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it." In short, the legal effect of a blank indorsement is to create a written contract, which incorporates the provision of Section 66 of the act. It must be said, therefore, that the trial court ruled correctly in rejecting the oral evidence. II. It should be added here that the appellant does not challenge the correctness of the rule of law thus adopted by the district court. His complaint is directed to the irregularity of Page 344 the procedure leading up to such ruling. His 2. APPEAL AND contention is that adequate objections were not ERROR: made when the evidence was introduced, and that review: much of the evidence was received without scope and objection at all. Most of the objections made by extent: the appellee were in the form of motions to correct strike the answers of the witness. The ruling on contending claim is that the objection should faulty have been made to the question. The infirmity of objection. this contention is that it is not available to an appellant here. The contention could properly have been urged in the district court, and could have been addressed to its discretion. If the contention had been accepted by the district court, and if the plaintiff had been appellant, it would be confronted here with the inadequacy of its objections, if such. But where the ruling complained of is a correct one, we sustain it, regardless of whether the appellee's objection that induced it was adequate or inadequate. Neddermeyer v. Crawford County,190 Iowa 883; Worthington v. Diffenbach, 184 Iowa 577; Hanson v.City of Anamosa, 177 Iowa 101; Christenson v. Peterson, 163 Iowa 708; Miller v. Davis, 193 Iowa 611. The reason underlying such a rule is quite apparent on its face. If we were to reverse this case for want of proper objections to evidence otherwise inadmissible, we could only award a new trial. It should fairly be presumed that, upon the new trial, the proper objections would be interposed. Therefore, to grant a new trial upon such a ground would be a futile procedure. III. It is further urged by the appellant that his defense was not attacked as being legally deficient, and that, therefore, it should be deemed sufficient. Reliance is had at this point onOrmsby v. Graham, 123 Iowa 202. The rule thus invoked has its limitations, and is not so illimitable as appellant assumes. But we have no occasion to consider it here. The defendant's defense was that he contracted for a qualified indorsement. It may be assumed that that was a good defense. This would not relieve the defendant from proving it by competent evidence. IV. The defendant pleaded, also, want of consideration. In support of this contention, it appears that the note was given in part payment of the purchase money for a certain 40 acres of *Page 345 land. This land was a part of the estate of the 3. BILLS AND father of the defendant, who died in March, NOTES: 1920, survived by his widow and his two sons. indorsement: The sons are the indorsers on this note. The son conside- G.L. Reed was the executor of his father's ration. estate. By mutual arrangement between the mother and sons, the 40 acres were offered at public auction, and were bid in for the benefit of all the beneficiaries, by this defendant. Thereafter, they sold the land to Campbell, the maker of the note. The contract of sale and the deed pursuant thereto were executed by this defendant, as the holder of the record title. The purchase-money notes were drawn payable to him, as payee, in like manner. He thereupon indorsed the note to his brother, and both of them negotiated the transfer of the note to the plaintiff herein. It is true, therefore, that this defendant held the note in trust for the beneficiaries of his father's estate, including himself. But this did not render his indorsement without consideration. He did have a personal beneficial interest in the transaction. Nor would it have defeated consideration if he had had no beneficial interest therein. It was enough that the plaintiff bank parted with its money in reliance upon his indorsement. The defense of want of consideration, therefore, is not sustained. The judgment below is, accordingly, — Affirmed. ALBERT, C.J., and FAVILLE, KINDIG, and WAGNER, JJ., concur	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431442/	Plaintiff's petitions alleged defendants secured from decedent a deed to a certain house and lot in Muscatine, thereafter sold by defendants for $750, also $486.67 in cash and two trust certificates of closed banks representing deposits of $1,424.83; that there was no delivery to defendants of the personalty nor of the deed to the real estate; that the deed was invalid for lack of consideration and because of decedent's incompetency; that the securing of said property was unconscionable and an unjust enrichment of defendants; that defendants were entitled to $327.61 for their services in caring for decedent and expenditures for his burial. Judgment was prayed for $909.26, and in addition thereto for $1,424.83, or for the possession of the bank certificates with the understanding that if any payments had been made thereon said sums should be added to plaintiff's judgment. The suit was started as a law action but upon motion of defendants was ordered changed to equity. Thereafter, plaintiff filed an amended and substituted petition, which omitted some of the allegations of his original petition and modified others. Defendants have charge of the Grand Charity Fund of the Grand Lodge of Iowa of A.F. and A.M., and the Masonic Sanitarium of said Grand Lodge, at Bettendorf, Iowa, under certain rules and regulations of said Grand Lodge. The parties stipulated that the Grand Charity Fund was a charitable trust. Under the rules, only those Masons or their dependents who are indigent and physically ill are eligible for admittance to the sanitarium. It costs the Grand Charity Fund about $110 per month to maintain each patient at the sanitarium. Application for admission must be made by the lodge to which the applicant Page 1368 belongs. One who has assets will not be admitted unless he will transfer the same to the Grand Charity Fund for his care, keep, and burial. When that is done, he is to be cared for as long as he lives. Decedent, a retired merchant, living at Muscatine, was born in 1846, and had been a member of an Iowa City lodge of Masons since 1868. About April 19, 1937, he wrote the secretary of the Iowa City lodge: "I am in need of help and sick * * living alone * * * for the past seventeen years. My wife died in 1920. * * * Could I be entitled to enter the hospital at Bettendorf? I am not financially able to pay my way at a private hospital." Shortly thereafter, the Iowa City lodge applied for decedent's admission to the sanitarium. The application contained a statement by decedent which recited in part that he had been unable to work for five years; that his income was from a house in Muscatine and dividends from closed banks; that his children, William Stoddard, of Iowa City, and Emma Elliot, of Oregon, were in poor circumstances, and unable to support him; that he had not agreed to dispose of his property (unless to the Iowa City lodge, or the sanitarium), and that he was familiar with and agreed to abide by the rules and regulations of the sanitarium. The application also contained the report of a doctor who had examined decedent; and certain certificates of the Iowa City lodge. April 24, 1937, the board approved the application with the notation, "He to deed property to G.L.C." (Grand Lodge Charity Fund). Shortly thereafter, Mr. Weeber, secretary of the Iowa City lodge, called upon decedent at Muscatine. They discussed the requirement that decedent turn over his assets for his care at the sanitarium. Decedent mentioned his postal-savings account, bank certificates, and house and lot in Muscatine. He also mentioned some land in South Dakota but did not consider he had much equity in it. Mr. Weeber and Mr. Wilford, secretary of the Muscatine lodge, called on decedent again in November 1937, and discussed with decedent arrangements for him to cash his postal savings, to assign his bank certificates, and to execute a Page 1369 deed for the Muscatine property. That was agreeable to decedent and he decided to go to the sanitarium under the provisions made by the board. Mr. Wilford testified decedent's "own interpretation was to let the Masons take care of him the rest of his life and they could have what he had." December 21, 1937, decedent wrote Mr. Wilford, "I am ready to go to the sanitarium at Bettendorf now." Decedent went to the Bettendorf sanitarium December 28, 1937. After riding from his house to the business section of Muscatine, he went to his bank alone and secured his papers, then went to the post office alone and apparently drew his postal savings. He then took the money and the papers to the office of Mr. Drake, a lawyer friend to whom he had previously said, "he wanted to convey his property to the Masonic Lodge so he might enter their old men's home in Bettendorf." Mr. Drake prepared a deed to the Muscatine property and assignments of the bank certificates to board of trustees of the Grand Charity Fund. Decedent executed these instruments, acknowledged the execution of the deed, and they were handed to Mr. Wilford, who accompanied decedent to Bettendorf, and delivered them to Mr. Treat, secretary of the board of trustees and superintendent of the sanitarium. Thereafter, the deed was recorded. Soon after decedent entered the sanitarium a medical examination indicated he required an operation. He was removed to St. Luke's Hospital for that purpose. However, on instructions of the surgeon, he was later returned to the sanitarium and the operation deferred until he should gain sufficient strength that he would have a reasonable chance of recovering from it. He died there January 28, 1938. In accordance with his expressed desire, he was buried in Washington County, Iowa. Defendants paid the burial expenses and the cost of an inscription upon the family monument requested by his heirs. [1] I. Appellant assigns as error the order changing the case from law to equity. The prayer was for a money judgment. However, it is the rule that the prayer alone is not necessarily determinative of the question whether the action is at law or in equity. From plaintiff's pleadings it appears he sought to Page 1370 establish and enforce a constructive trust and an accounting from the trustees of such trust. Hence, the order changing the case to equity was not erroneous. Frink v. Commercial Bank, 195 Iowa 1011, 191 N.W. 513; McAnulty v. Peisen, 208 Iowa 625, 226 N.W. 144; Markworth v. State Savings Bank, 212 Iowa 954, 237 N.W. 471; Rance v. Gaddis, 226 Iowa 531, 541, 542, 284 N.W. 468, 473, 474. [2] II. The only evidence tending to establish appellant's contention that decedent was mentally incompetent was in the form of answers by Dr. Parks to hypothetical questions. Apparently, Dr. Parks was not acquainted with decedent. The principal basis for such hypothetical questions was the testimony of appellant, William P. Stoddard, of which the decree states: "Considering plaintiff's interest in the case, his manner of testifying, and his apparent and admitted lack of definite recollection as to many of the things about which he testified, the Court is forced to reject his testimony as a satisfactory basis for the expert testimony of Dr. Parks." On the other hand, seven witnesses, two of them physicians and surgeons who had examined decedent, testified that, in their opinions, he was of sound mind. In the language of some of the witnesses, "he had a mind as keen as the average man of 35 or 40, so far as handling his own affairs. He had a keen memory." "He was an old man but his mental condition was very good for a man of his age." The finding of the trial court that appellant had failed to establish decedent's mental incompetency is sustained by the decided weight of the evidence. Nor does the record sustain appellant's charge of want of consideration for the transfer of decedent's assets or that the same were not delivered to appellees. The arrangement was that he be admitted to the sanitarium and be cared for there so long as he lived unless discharged for a just cause. Assuming consideration was required, that would furnish adequate consideration for the transfer. There is ample affirmative testimony of the delivery of the deed and the two bank certificates to the secretary of the board Page 1371 of trustees. That decedent's money was received by the sanitarium is conceded. The following stipulation is explanatory of that matter: "Iowa City Lodge No. 4 advised the defendants that it did not care to assume responsibility for the burial of James L. Stoddard as provided by said application [made by that lodge for his admission to the sanitarium] and advised further that the said James L. Stoddard had certain funds which he had saved for the purpose of paying his burial expenses and said defendants thereupon notified said lodge that in order to avoid complications said trustees would accept said deposits and assume responsibility for the burial of James L. Stoddard." The cash realized from the assets received by the Grand Charity Fund was $1,524.47. This includes the dividends paid on the certificates of deposit of the insolvent banks prior to June 1943. There may be some further dividends. After deducting burial expenses, the cost of caring for this ninety-one-year-old man for twelve of fifteen months at $110 per month would have equalled the amount received from him. His admission to the sanitarium appears to have been regarded by the trustees as an act of charity toward a member of the order. Neither they nor the decedent considered the matter as an ordinary business transaction. Apparently, there was no thought of profit. That the fund received more than it expended was because decedent died sooner than anyone expected. There was no evidence indicating overreaching or unjust enrichment. — Affirmed. All JUSTICES concur. Page 1372	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431432/	I. The appellant presents five specific grounds of challenge to the legislation. These may conveniently be reduced to three: (1) That appellant's Articles of Incorporation and By-laws constitute a contract with the state of Iowa, and that Section 11044 impairs such contract; (2) that such section impairs Page 51 the obligation of plaintiff's existing contract of insurance with the defendant; (3) that such section is invalid, in that it constitutes class legislation. Appellant sued upon the defendant's written application for insurance. In this application, the defendant agreed to pay "all just assessments at Des Moines, Iowa, and to be governed by the Articles of Incorporation and By-laws of the 1. CONSTITU- Association." Appellant in its brief sets forth TIONAL LAW: certain of its alleged Articles and By-laws, impairment but the Articles and By-laws thus set forth do of not appear in the record. From the recitals of contracts: the brief it appears that the plaintiff was existing organized as a corporation in May, 1926. Section statutes. 11044 became effective not later than July, 1925. The application signed by the defendant bears date of June 7, 1926. Inasmuch as the statute was enacted prior to the organization of the corporation, and prior to the contract of insurance, it cannot be said that its enactment impaired any then existing obligation of a contract. The plaintiff, therefore, is in no position to challenge the constitutionality thereof on such ground. The statute was a part of the existing law at the time of its incorporation, and as such became a part of its Articles and By-laws. As to the other ground of challenge, it is sufficient to say that the statute is purely remedial. It simply fixes the venue of an action. In no legal sense does it impair the right of action. It is argued that, if the plaintiff be required to bring its suits for collection of assessments in the respective counties of which the respective defendants are resident, it will impose so great a burden upon the plaintiff as to render its causes of action without practical value. The undertaking of the insured is to pay "all just assessments." He has a right to be heard on the justness and validity of the assessment. According to the brief, the plaintiff does business in 98 counties other than Polk. It is permissible to legislation to deem the plaintiff present in every county wherein it does business. If it be more convenient to the plaintiff to bring all its suits in Polk County, it is self-evident that it would be equally inconvenient for all members nonresident in Polk County. If the plaintiff could not afford to bring suit for a small assessment in a distant county, neither could the resident of such county afford to defend in Polk County. It was permissible to the legislature to believe that the power to bring Page 52 all suits for assessments in one county could, and probably would, operate oppressively. It is argued that the effect of the statute is to render all assessments payable in the county of the member's residence; whereas the contract of the member renders the same payable in Des Moines. The contention is not sound. Notwithstanding the statute, it is still the duty of the member to pay at Des Moines, according to his contract. If he fails to do so, he has breached his contract, and has become suable thereby. The right to sue a defendant in the county where the contract is made payable, is purely statutory. It is not an inherent or fundamental right, independent of the statute, as appellant contends. Indeed, under the statute the primary jurisdiction over a defendant is in the county of his residence. An exception is made where suit is brought upon a contract payable in a particular place. This exception is statutory, and is itself qualified by Section 11044. Whether the grounds of challenge here made, or any of them, would be available to one who held an existing contract at the time the legislation went into effect, we have no occasion to consider; nor do we pass upon the validity of the statute in that regard. We hold at this point only that such section is unassailable by one whose rights accrued after the statute came into effect. II. Is the statute vulnerable to the charge that it is class legislation, and that its application to the particular persons and corporations is arbitrary and unreasonable, whereby it is rendered unconstitutional? The Constitution 2. CONSTITU- requires that laws be uniform in their TIONAL LAW: application and operation. This means that they class must be applicable to all persons under like legislation: circumstances. A statute may in fact be venue. applicable, in a practical sense, to a small fraction only of the people who compose the state, because only such small fraction of people have seen fit to put themselves into the circumstances to which the statute applies. The statute is not rendered necessarily unconstitutional by reason of such fact. Practical legislation must, of necessity, create classification. The rule of restraint upon the legislative body in that regard is that its classifications must be predicated upon natural and reasonable distinction, and not upon an arbitrary or capricious one. The rule in this regard is well settled by our previous cases and by universal authority in all jurisdictions of Page 53 this country. See Hubbell v. Higgins, 148 Iowa 36; Shaw v. Cityof Marshalltown, 131 Iowa 128; Mumford v. Chicago, R.I. P.R.Co., 128 Iowa 685; McGuire v. Chicago, B. Q.R. Co., 131 Iowa 340; Chicago, B. Q.R. Co. v. McGuire, 219 U.S. 549; Carroll v.Greenwich Ins. Co., 199 U.S. 401; State v. Fairmont Creamery Co.,153 Iowa 702. The contention of the appellant is that the classification of this statute is arbitrary and unreasonable, in that it applies only to insurance other than life insurance, and that it therefore works a discrimination in its operation, as between life insurance and non-life insurance. It will be noted that this statute (which we have quoted above) purports to apply to "assessments levied by associations organized under the provisions of Chapter 406." Turning to Chapter 406, we find that it is one of the seventeen chapters of Title XX of the Code of 1924. This title is devoted wholly to the subject of insurance in all its numerous forms. It deals with the subject of life insurance under different sections and different chapters. Chapter 406 deals with the form of insurance described in its caption as follows: "Mutual Fire, Tornado, Hailstorm and Other Assessment Insurance Associations." Forty sections are devoted to this subject in this chapter. It will be noted by the foregoing caption that it applies to all assessment insurance associations. Section 11044 does not purport to classify. It simply recognizes the classification already made in another title of the Code. If the classification is to be deemed an arbitrary one, then the offending statutes are to be found in Title XX of the Code. That a statute should deal specifically with assessment insurance, as distinguished from other forms of insurance, is not, to our minds, suggestive of an arbitrary classification. That legislation which confers power to levy assessments ex parte upon member-policyholders should also regulate the method of collection of such assessment as would afford reasonable protection to the assessed member against illegal or unjust assessment, is not, to our minds, suggestive of arbitrary classification. In McAunich v. Mississippi M.R. Co., 20 Iowa 338, we discussed the question of uniformity in the application of a statute as follows: Page 54 "These laws are general and uniform, not because they operate upon every person in the state, * * * but because every person who is brought within the relations and circumstances provided for is affected by the law. They are general and uniform in their operation upon all persons in the like situation, and the fact of their being general and uniform is not affected by the number ofpersons within the scope of their operation." In McGuire v. Chicago, B. Q.R. Co., 131 Iowa 340, we said: "But the reasonable classification of persons for the purposes of legislation according to occupation, business, or other circumstances, by which one class or portion of the people is differentiated from other portions or classes, has often been held not to be a violation of this constitutional guaranty. The mere fact that legislation is special, and made to apply to certain persons and not to others, does not affect its validity, if it be so made that all persons subject to its terms are treated alike under like circumstances and conditions." In Carroll v. Greenwich Ins. Co., 199 U.S. 401, the Supreme Court of the United States had before it the question of the validity of a statute that was confined in its application to fire insurance companies alone. The discussion of that court on that question is enlightening and necessarily authoritative. It said: "At the argument before us more special reasons were assigned. It was pressed that there is no justification for the particular selection of fire insurance companies for the prohibitions discussed. * * * if an evil is specially experienced in a particular branch of business, the Constitution embodies no prohibition of laws confined to the evil, or doctrinaire requirement that they should be couched in all-embracing terms. It does not forbid the cautious advance, step by step, and the distrust of generalities which sometimes have been the weakness, but often the strength, of English legislation. Otis v. Parker,187 U.S. 606, 610, 611 [23 Sup. Ct. 168, 47 L. Ed. 323]. And if this is true, then, in view of the possible teachings to be drawn from a practical knowledge of the business concerned, it is proper that courts should be very cautious in condemning what legislatures have approved. If the legislature of the state of Iowa deems it desirable Page 55 artificially to prevent, so far as it can, the substitution of combination for competition, this court cannot say that fire insurance may not present so conspicuous an example of what that legislature thinks an evil as to justify special treatment. The imposition of a more specific liability upon life and health insurance companies was held valid in Fidelity Mutual LifeInsurance Co. v. Mettler, 185 U.S. 308 [22 Sup. Ct. 662, 46 L. Ed. 922]. See, also, Missouri Pacific Ry. Co. v. Mackey,127 U.S. 205 [8 Sup. Ct. 1161, 32 L. Ed. 107]; Orient Insurance Co. v.Daggs, 172 U.S. 557 [19 Sup. Ct. 281, 43 L. Ed. 552]; Otis v.Parker, 187 U.S. 606 [23 Sup. Ct. 168, 47 L. Ed. 323]; Home LifeInsurance Co. v. Fisher, 188 U.S. 726, 727 [23 Sup. Ct. 380, 47 L. Ed. 667]." See, also, Southwestern Oil Co. v. State of Texas, 217 U.S. 114 (30 Sup. Ct. 496, 54 L. Ed. 688); Western Union Tel. Co. v.Commercial Mill. Co., 218 U.S. 406 (31 Sup. Ct. 59, 54 L. Ed. 1088); Griffith v. State of Connecticut, 218 U.S. 563 (31 Sup. Ct. 132, 54 L. Ed. 1151); Kentucky Union Co. v. Commonwealth ofKentucky, 219 U.S. 141 (31 Sup. Ct. 171, 55 L. Ed. 137); GermanAlliance Ins. Co. v. Hale, 219 U.S. 307 (31 Sup. Ct. 246, 55 L. Ed. 229); Brown-Forman v. Commonwealth of Kentucky, 217 U.S. 563 (30 Sup. Ct. 578, 54 L. Ed. 883); Williams v. State of Arkansas,217 U.S. 79 (30 Sup. Ct. 493, 54 L. Ed. 673). See, also, State exrel. Young v. Standard Oil Co., 111 Minn. 85 (126 N.W. 527). We think the foregoing should be deemed a sufficient discussion of the question raised by appellant at this point. We are clear that the statute is not vulnerable to the charge of arbitrary classification. The judgment of the lower court is — Affirmed. STEVENS, C.J., and FAVILLE, De GRAFF, ALBERT, MORLING, KINDIG, and WAGNER, JJ., concur. Page 56	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431435/	The basis of this claim is a promissory note for $2,000, executed on the 16th day of December, 1919, by the defendant's intestate, L.D. Youtz, to the Franklin Oil Refining Page 87 1. BILLS AND Company of Des Moines, Iowa. During the early NOTES: part of 1920, this note passed into the fraud: possession of the plaintiff. The answer of the evidence. defendant pleaded fraud and false representations in the procurement of the note. Plaintiff claimed to be a good-faith holder in due course, having procured the same before maturity for value. The plaintiff raises but two questions that deserve serious consideration, and both are raised in the motion for directed verdict and for new trial, to wit: (1) That the evidence conclusively shows that the plaintiff was a good-faith holder of said promissory note in due course, and for valuable consideration; (2) that the evidence is insufficient to support a finding of fraud in the inception of the instrument. Without incumbering the record with all the evidence in this case, it is sufficient to say that it is conceded, or the evidence satisfactorily shows, that Youtz, the decedent, was induced to sign said promissory note by certain representations and pretenses made to him at the time of the making of said note, by the agent of the Franklin Oil Refining Company, one Magerall by name, to wit: that the oil company was out of debt; that it had a million dollars worth of property and between $200,000 and $300,000 in money, and unlimited credit; that one Parley Sheldon, of Ames, Iowa, had $90,000 worth of stock in the company; and that the note would not be used, but would be held in Wood's Bank in Kansas City. These statements were made, together with some other statements and representations which are not now material. Suffice it to say that the evidence introduced negatives the correctness of approximately all of these statements. This being true, it would carry the issue to the jury; but plaintiff contends that there is no evidence to show that the deceased believed and relied on these representations. The evidence in relation to this matter, however, does show that the decedent said to the agent, "If it is as you say, it is, I believe, all right," and that after this he signed the note in controversy. Without elaborating upon this line of testimony, we are satisfied that these statements on the part of the defendant, Page 88 taken in connection with the other testimony in the case, were sufficient to take the question of fraud to the jury. It is claimed, however, by the plaintiff that, this being true, the case should not have been sent to the jury, because the plaintiff established itself as an innocent purchaser in due course by such weight of testimony that the 2. BILLS AND court should have directed the verdict in favor NOTES: of the plaintiff, under the later line of cases holdership commencing with Arnd v. Jones, 197 Iowa 244, the in due last pronounced being First Nat. Bank v. Dutton, course: 199 Iowa 468. The case at bar, however, does not evidence. measure up to the requirements of the Dutton case. The witness Immasche, who is and was the managing officer of plaintiff bank, testified that he was the sole person connected with the bank who had anything to do with the transaction, or had any knowledge thereof; yet the circumstances in the case, as hereinafter referred to, are such that they might be held by the jury to contradict his negation, and thus make a jury question. Plaintiff bank is situated in the small town of Cedar Point, in the state of Kansas. It appears from the manager's testimony that the town is on the border of the oil belt in Kansas, and that the Franklin Oil Refining Company was engaged in the drilling of a well near that town, and used plaintiff bank, to some extent, in financial transactions. The manager himself seems to be in some doubt as to whether or not the bank held the note as collateral, or whether it purchased it outright. It is difficult to harmonize his statements in relation to the same. The evidence in the case shows that the Franklin Oil Refining Company was hopelessly insolvent during all of the time in controversy herein. The bank realized this condition, because it made several loans, not exceeding $200, to the 3. BILLS AND oil company, and took chattel mortgages to NOTES: secure the same. The manager, in one place in holdership his testimony, states that he purchased the note in due from the Franklin Oil Refining Company, and course: gave credit on their checking account for the taking for amount thereof. There is no showing in his value: testimony that the amount thus given credit for insufficient was ever checked out by the oil company; and evidence. until this was done, the plaintiff was not an innocent purchaser, within the *Page 89 requirements of the statute. We have so held in City Deposit Bankv. Green, 130 Iowa 384; McNight v. Parsons, 136 Iowa 390. As said in the Green case, as long as the relation of debtor and creditor exists, there can be no innocent purchaser. Another circumstance in the case which should have warned the plaintiff in relation to this note, is that the witness testifies that he knew there was an agreement that the note in suit was to have been held in escrow with the stock until it was paid; and with this knowledge on his part, when the note was presented to him without having the stock accompany the same, it was sufficient to put him on his guard. The maker of the note was a total stranger to the manager of plaintiff bank, and lived something over 400 miles from the location of said bank. He knew that it was given for stock in the Franklin Oil Refining Company, and knew something of the financial straits of the oil company at the time. He made no inquiry of the Kansas City bank whether the stock was up as collateral. Such acts, and several others related in the testimony, are sufficient, in our opinion, to make a jury question. See Second Nat. Bank v. Scanlon, 196 Iowa 1305, and cases there cited. The evidence of the plaintiff in this case, as the alleged purchaser, is, in our opinion not so indubitable as to require the court to direct a verdict for the holder. State Bank v. OyloePiano Co., 195 Iowa 1152, and cases hereinbefore cited. After a careful review of all the evidence, we are satisfied that the case was properly sent to the jury for their decision, and the court committed no error in so doing. — Affirmed. FAVILLE, C.J., and EVANS and ARTHUR, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431436/	On June 20, 1924, the Independent School District of Des Moines entered into a contract with a contractor, James Maine's Son Company, by the terms of which the contractor 1. MECHANICS' was to provide all the material and perform all LIENS: the work for the erection and completion of an public addition to a school building in the city of Des improve- Moines. At the same time, the contractor, with ments: the Southern Surety Company as surety, executed "completion unto the school district the required statutory and final bond, conditioned as provided by law. The acceptance." Reliance Brick Company furnished Page 1146 material, which was used in the construction of the building, and there is due said company from the contractor, for said material, the sum of $1,983.07. The last item of material furnished by said company bears date of November 4, 1924. Said company filed its claim with the proper officer of the school district on July 22, 1925. Perkins Builders Supply Fuel Company furnished material which was used in the construction of the building, and there is due said company from the contractor, for said material, the sum of $904.80. The last item of material furnished by said company bears date January 13, 1925. Said company filed its claim with the proper officer of the school district on August 12, 1925. Said subcontractors began their actions in equity on June 24, 1926, and in their petitions seek recovery, as against the school district and the surety company, for the amount due on their claims, and ask that the same may be established as a charge upon and against any balance of funds due from the school district to the contractor. Both the school district and the surety company, by their answers, raise the issue that the claims of the subcontractors are barred on account of their failure to comply with the statutes, both as to the filing of their claims and the institution of suits within the time prescribed by the statutory law. The trial court dismissed the petitions of said subcontractors as against the school district and the Southern Surety Company. From this action of the trial court said subcontractors appeal. It is shown by the record that the school district actually took possession of the building in January, 1925. The record also conclusively establishes the fact that the building was completed and accepted by the school district on or before the 3d day of March, 1925. The final estimate of the amount due from the district was submitted to the board of directors, together with the report of the official architects, Horton Smith, inspector for the architects, Merrill, assistant superintendent of schools, and Spry, the superintendent of the buildings and grounds, that the building had been completed in accordance with the plans and specifications, and that the contractor is entitled to the amount shown by said final estimate. For some reason, not shown by the record, the school district for years has customarily held back the sum of $1.00 in making payment of final estimates on similar projects. It appears that, at a meeting of the Page 1147 board of directors, on March 3, 1925, said board resolved itself into a committee of the whole, and the minutes as to said matter give the following information: "Mr. ________ stated: `This is the final estimate on the general contract for the Greenwood School Addition, and provides a final payment of the balance on contract of $7,310.30. The work has been inspected and approved by the architects, Mr. W.R. Spry, and Mr. A.W. Merrill. It is recommended that all these final estimates be paid, minus the customary reduction of $1.00.'" Immediately after the rising of the committee of the whole, the board adopted and approved the report of the committee, and on the following day, the contractor signed a receipt for the amount of the final estimate, of $7,310.30; but, as a matter of fact, the school district's warrant which was received by the contractor was $1.00 less than the final estimate, and $1.00 less than the amount designated in the receipt. It is true, as stated by the appellants in their argument, that there is no formal resolution by the board which in terms shows the completion and final acceptance of the improvement, but said facts can be otherwise shown. Under the facts, as disclosed by the record, there can be no doubt that the building was completed and accepted by the board at the time of the authorizing of the aforesaid final payment. It is the contention of the appellants that, since the last item of their respective accounts bore date subsequent to October 27, 1924, the date of the taking effect of Chapter 452 of the Code of 1924, the matters in dispute are to be 2. MECHANICS' determined by the statutory law set out in said LIENS: chapter. It is the contention of the appellees public that the rights of the parties hereto must be improve- determined by the prior statute, Chapter 347 of ments: the Laws of the Thirty-eighth General Assembly, belated which was in force and effect at the time of the filing of execution of the contract between the school claim: district and the contractor, and at the time of belated the execution of the aforesaid statutory bond. suit: It is the further contention of the appellees effect. that, although they may be wrong in the aforesaid contention, yet the appellants cannot prevail under Chapter 452 of the Code. Page 1148 We find it unnecessary to make a pronouncement as to whether the rights in controversy are to be determined by Chapter 347 of the Laws of the Thirty-eighth General Assembly or by Chapter 452 of the Code of 1924; for, if said rights are to be determined by Chapter 347 of the Laws of the Thirty-eighth General Assembly, it is conclusive that the appellants cannot prevail (see ZeidlerConcrete Pipe Co. v. Ryan Fuller, 205 Iowa 37); and if said rights are to be determined under Chapter 452 of the Code of 1924, for reasons hereinafter given, the appellants are in no better position. The appellants rely upon Section 10308 of the Code, which provides: "Claims may be filed with said officer as follows: (1) At any time before the expiration of thirty days immediately following the completion and final acceptance of the improvement. (2) At any time after said thirty-day period, if the public corporation has not paid the full contract price as herein authorized, and no action is pending to adjudicate rights in and to the unpaid portion of the contract price." It is manifest that the appellants have not brought themselves within the provisions of the first paragraph of the foregoing quoted section; for the building had been completed and final acceptance of same had been made by the school district on March 3, 1925, and the appellants' claims were not filed with the proper officer until July 22, 1925, and August 12, 1925, long after the expiration of the 30-day period. However, appellants claim that, since the school district withheld $1.00 from the payment on the final estimate, they have brought themselves within the provisions of the second sentence of the aforesaid section. It is clear, however, that, under said provision, the appellants would have no right except as to the unpaid portion of the contract price, to wit; $1.00. After the expiration of the 30-day period, the school district could have paid the entire amount, and neither said district nor the surety company would be liable. Therefore, in no event could the appellants prevail, except as to the amount of the $1.00 withheld. The appellees contend that the rights of the appellants are barred by Section 10313 of the Code of 1924, which provides that any claimant for labor or material who has filed his claim may, at any time after the expiration of 30 days, and not later than Page 1149 six months following the completion and final acceptance of said improvement, bring action in equity in the county where the improvement is located, to adjudicate all rights to said fund, or to enforce liability on said bond. Since the appellants' actions were not begun until the 24th day of June, 1926, which is more than six months after the completion of the building and the acceptance of the same by the school district on March 3, 1925, as it occurs to us there is no escape from the correctness of the appellees' contention. Said Section 10313 is a special statute of limitations, and while, after the expiration of said six-months period, the appellants still have a right of action, as against the contractor, until the expiration of the period of the general statute of limitations, they have no action as against the school district for the fund, nor as against the surety company on the statutory bond. The appellants contend that it was the duty of the school district, under Section 10312 of the Code, not to pay the amount of the final estimate forthwith, but to retain 3. MECHANICS' it for a period of thirty days after the LIENS: completion and final acceptance of the public improvement. While this is true, this did not improve- relieve the appellants from filing their claims ments: as provided in Section 10308 of the Code, and premature does not relieve them from filing their claims payment to and bringing the action before the six-months contractor: period of limitation expired, under Section effect. 10313 of the Code. There is no plea of estoppel by the appellants, and no proof that the school district's failure to retain the money for the period of thirty days caused the appellants to act, or fail to act, to their prejudice. For the foregoing reasons, the action of the trial court in dismissing the petitions of the appellants at their costs is correct, and the same is hereby affirmed. — Affirmed. STEVENS, C.J., and De GRAFF, ALBERT, and MORLING, JJ., concur. *Page 1150	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431437/	We will consider the case as if the State Highway Commission were sole defendant. Primary Highway 84, running south from Cedar Rapids to the municipal airport, crosses the North Western railroad tracks which run nearly east and west along, but just outside, the city's corporate limits. Plaintiffs' three residences face east on the west side of the highway just south of the railroad. Commencing in September 1947, a viaduct and approaches thereto were constructed over the railroad under contracts let by defendant commission. The south approach to this overhead crossing is in the highway in front of plaintiffs' properties. In this mandamus action to compel defendant to institute condemnation proceedings for the assessment of plaintiffs' damages from the erection of the improvement, the question presented is whether there was a taking of plaintiffs' properties in violation of Article I, section 18, Constitution of Iowa, which states, "Private property shall not be taken for public use without just compensation * * ." Our Constitution does not say "taken or damaged." In granting the relief asked, the trial court held there was such a taking notwithstanding there was no actual physical encroachment upon plaintiffs' properties. Before the improvement here in question was made highway 84 in this vicinity was substantially level, 66 feet wide, with Page 921 blacktop surface, affording ample access to plaintiffs' properties and without affecting the light, air or view. Plaintiffs' lands are generally level and about the same elevation as the old highway. The improvement consists of a bridge or viaduct about 155 feet long (north and south) over the railroad with approaches of solid earth in the highway both north and south of the bridge. The south approach is 1353 feet long, the north approach 1092 feet. The new roadbed is 56 feet wide at the top with pavement of 22 feet in the center and shoulders of 17 feet on each side. Grading has been done to provide for pavement 45 feet wide. Defendant purchased ground along the east side of the old highway just south of the railroad for use as a borrow pit and to provide added space for the improvement. Plaintiffs Mr. and Mrs. Robinson own about one and one-fourth acres adjoining the railroad on the south with a frontage of 256 feet on highway 84. The house is a story and a half, modern, with five rooms. Plaintiffs Mr. and Mrs. Anderlik own about four acres adjoining Robinsons' on the south with a frontage of 280 feet on the highway. Their house is new, one story, with many modern conveniences. Plaintiffs Mr. and Mrs. Harper own the five-acre tract immediately south of Anderliks' with a frontage of 419.4 feet on highway 84. Their house is a story and a half with the first floor and one room upstairs "finished off." They also have a small barn and four other outbuildings. Robinsons and Anderliks live in their properties. Harpers rent theirs at $40 a month. The front of Robinsons' house is 20 feet west of their east lot line and 43 feet west of the west edge of the embankment which is24.12 feet high in front of their house. The front of Anderliks' house is 40 1/3 feet west of their east lot line and about 71 feet west of the west edge of the embankment which is 19.5 feet high in front of their house. The front of Harpers' house is 51 feet west of their east lot line and 80 feet west of the west edge of the embankment which is 14.5 feet high in front of their house. These three elevations of 24.12, 19.5 and 14.5 feet are from the surface of the old highway. The only means of access to plaintiffs' properties is over that part of the old highway between the west edge of the embankment Page 922 and their east lot line. This old road comes to a dead end at the south line of the railroad right of way. To get on the present highway from plaintiffs' properties it is necessary to travel what is left of the old road to Prairie Avenue which intersects highway 84 at the southeast corner of the Harper tract. The respective distances from this point to the Harper, Anderlik and Robinson houses are 399, 569 and 779 feet. Thus on a round trip into Cedar Rapids the Robinsons must travel 3116 feet farther than before. This old road is no longer blacktop but is surfaced with light gravel. Defendant's district engineer testifies it is to be surfaced with crushed rock. Plaintiffs say the part which can be traveled measures from 8 to 14 (with an average of 11) feet wide in front of their properties. Defendant's resident engineer testifies such width measures from 15 to 21 feet. The improvement obstructs the view to the east from these properties. The embankment in front of Robinsons' house is about as high as the house and obviously they are able to see only the west side of the embankment when they look east, even from their upstairs windows. The embankment in front of Anderliks' is above their chimney and they are unable to see over the embankment from their house or front lawn. Because the embankment is lower in front of Harpers' house and the house is farther west, a person standing at their upstairs windows can see over the embankment, but from the downstairs only the side of the embankment may be seen. Before the improvement was built there was no obstruction to the view to the east or northeast from these properties except for a knoll about 60 rods east and a little south of Harpers' house. Plaintiffs' testimony is that their houses have been made darker and the breeze and air from the east have been shut off by this embankment. Mr. Robinson says "it has made our house lots darker and shut off any breeze or air from that direction." Mrs. Anderlik testifies "the embankment has impaired the breeze from the east and there is none unless there is a real heavy wind. * * after the viaduct was built the sun comes over the rise an hour late in the morning." A professor of physics as a witness for defendant expresses the opinion the effect of Page 923 the embankment upon light in the three houses would be insignificant. A real estate man gives his opinion of the fair and reasonable market values of each of the three properties before the construction of the improvement and under conditions at the time of trial. The former values total $32,500 and the latter $21,500. The improvement was substantially but not entirely completed at the time of trial, June 30, 1948. The approaches had not been paved, guardrails were yet to be built and the sides of the embankment were to be sodded. It is doubtless true, as defendant suggests, the sides of the embankment will present a better appearance after they have been sodded than they did at the time of trial. [1] Upon the evidence above summarized the trial court held there had been a taking of plaintiffs' properties under our decision in Liddick v. City of Council Bluffs, 232 Iowa 197, 232, 233, 5 N.W.2d 361, 379: "We now hold that the destruction of the rights of access, light, air, or view, or the substantial impairment orinterference with these rights of an abutting property owner in the highways or streets adjacent to his property, by any work or structure upon such highways or streets, intended for the improvement thereof, done by the state or any governmental subdivision thereof, is a `taking' of the private property of said owner within the purview and provisions of section 18, Article I of the Iowa Constitution." (Italics ours.) We think the trial court was right. It is true the abutting property in the Liddick case was in a city and not, as here, just outside a city's corporate limits. But this does not afford a sound basis for distinguishing the cited case. The constitutional provision is of course equally applicable to property within and without corporate limits of a municipality and the above-quoted decision is equally so applicable. It is also true that Division I of the Liddick opinion holds the property owners there were entitled to damages from the city under what is now section 389.22, Code, 1946 (5953, Code, 1939), because of change of an established grade of the street and that this statute has no application outside cities and towns. Page 924 Nor is there any statute similar to 389.22 which entitles the owner of property outside a municipality to damages for change of grade of a highway. But subsequent divisions of the Liddick opinion consider the very question here involved irrespective of the right to damages under section 389.22 and reach the conclusion quoted above. We appreciate there are many decisions contrary to the Liddick case. A number of them were considered in reaching our conclusion there but we expressed disagreement with them. Defendant here, relying upon substantially the same precedents, asks us to overrule the Liddick case but we are unwilling to do so. [2] The basis of the Liddick decision is that real property consists not alone of the tangible thing but also of certain rights therein sanctioned by law, such as rights to access (ingress and egress), light, air and view, and when such rights are destroyed or substantially impaired by such a structure in the highway as was here made, there is at least a partial taking of the property in the constitutional sense. The record here shows such an impairment of these rights of plaintiffs. Defendant places much reliance upon Pillings v. Pottawattamie County, 188 Iowa 567, 176 N.W. 314, Lingo v. Page County,201 Iowa 906, 208 N.W. 327, and Talcott Brothers v. City of Des Moines, 134 Iowa 113, 109 N.W. 311, 12 L.R.A., N.S., 696, 120 Am. St. Rep. 419. These decisions were also relied upon by defendants and considered by us in Liddick v. City of Council Bluffs. As there pointed out, the change of grade in the Pillings case was made because of the natural contour of the ground (cutting down a hill and making a fill at the bottom) and not, as here, wholly by a change in the natural surface by artificial means such as the construction of a bridge over a railroad. Therefore, we concluded in the Liddick opinion, the improvement involved in the Pillings case must have been anticipated and the damages assessed accordingly at the time of the original taking. There is no indication here that any such improvement as defendant has made was remotely contemplated at the time the original easement for the highway was acquired. In Lingo v. Page County, supra, a bridge was built over a Page 925 railroad which crossed part of plaintiff's farm through a comparatively deep cut and the highway adjacent to the farm was partially relocated upon land condemned by the county. Plaintiff's route to the near-by town was not substantially changed or impaired. The decision that there was no taking is based on Pillings v. Pottawattamie County, supra. Talcott Brothers v. City of Des Moines, supra, involved loss of lateral support by excavating a city street to bring it to an established grade. The opinion recognizes (at page 126 of 134 Iowa, page 315 of 109 N.W.) that "The right to light, air, of access * * as well as the right of lateral support, are property rights, and it follows as matter of course that he who deprives the owner thereof in any degree is guilty of a taking." But by a narrow construction of Article I, section 18, of our Constitution ("But with consistency this grant cannot be given force according to a literal reading of the language used." — page 127 of 134 Iowa), the opinion holds there was no taking. In the Liddick case it is said (at page 215 of 232 Iowa, page 371 of 5 N.W.2d) this constitutional provision "should be broadly and liberally interpreted" and authorities are there cited to support the statement. It must be admitted that some of the views expressed and decisions cited in the Pillings, Lingo and Talcott cases, all supra, conflict with our opinion in Liddick v. City of Council Bluffs. This is recognized in the Liddick decision and the three earlier cases are there overruled insofar as such conflict exists. We have carefully considered other contentions pressed upon us by defendant that are not discussed herein. We think the case is controlled by Liddick v. City of Council Bluffs, supra. Bacich v. Board of Control of California, 23 Cal.2d 343, 351,144 P.2d 818, 823, 824, and In re Petition of Burnquist, 220 Minn. 48, 53,19 N.W.2d 394, 397, cite and quote with approval from the Liddick case. [3] It may be well to add that it is held in Baird v. Johnston,230 Iowa 161, 164, 297 N.W. 315, 316, and Dawson v. McKinnon,226 Iowa 756, 770, 285 N.W. 258, mandamus will lie to compel the institution of condemnation proceedings *Page 926 where there has been a taking of private property for public use without compensating the owner. — Affirmed. HAYS, C.J., and BLISS, OLIVER, HALE, WENNERSTRUM, SMITH, and MULRONEY, JJ., concur. MANTZ, J., not sitting.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431443/	I. In November, 1917, the Wagner Company was awarded a paving contract, known in the record as the "Douglas Avenue Contract," in the city of Des Moines. It thereupon applied to the plaintiff Lion Bonding Surety Company to insure its 1. INSURANCE: performance of its contract. Such plaintiff the issued its bond accordingly. This suit is contract: brought upon the breaches of such bond by the construc- Wagner Company. The Lion Bonding Surety tion: effect Company reinsured one half the risk with the of Iowa Bonding Casualty Company, its reinsurance. coplaintiff. The total loss sustained under the insuring bond was somewhat more than $14,000. This was borne equally, in the first instance, by the two plaintiffs. The insuring contract issued by the Lion Bonding Surety Company required the applicant to furnish Page 181 indemnitors. The Empire Construction Company (a corporation) and the Raymond Wright Company (trade name) were named as such indemnitors, and they indorsed the application of the Wagners as such indemnitors. There is some dispute between the parties as to whether the liability of these latter was secondary or primary, the plaintiffs contending that they were principals to the contract, and were in no sense sureties or indemnitors. We think that the contract entered into and the written application pursuant to which the contract was entered into by the plaintiffs are quite conclusive on that question. If we turn to the application, the answer to Interrogatory 1 shows the Wagner Company as sole applicant. The answer to Interrogatory 22 names the Empire Construction Company and the R.H. Wright Company as indemnitors. The Wagner Company purported to sign the application as "applicant." No such designation was attached to any other signer. The Raymond H. Wright Company appended to the contract the following statement, over its signature: "We hereby join in the above indemnity agreement." For the purpose of further discussion, therefore, we shall treat the Wagner Company as the principal applicant for the insurance, and the other two signers as indemnitors. It appears that Charles W. Wagner was the principal owner of the Wagner Company, and the identity of the two entities has been quite merged in this record. We shall, therefore, make no distinction between them. Wagner and his corporation became insolvent while owing a large indebtedness arising out of the performance of the "Douglas Avenue Contract." Negotiations were entered into between him and his insurer, the Lion Bonding Surety Company, whereby it was sought to reduce the loss resulting to the insurer to the lowest possible amount. A written agreement was entered into, whereby Wagner turned over to the insurer all the property which he had, reserving only certain tools and implements, but including corporation stock and choses in action and certain benefits already accrued from executory paving contracts in course of performance. It was further provided that Wagner should pay the sum of $5,500 to his insurer. This contract was fully performed by Wagner. In order to perform the same, it was requisite that he mortgage his homestead, for the purpose of borrowing the amount necessary to make the cash payment. Page 182 One of the inducements which operated on both parties was that Wagner was otherwise contemplating bankruptcy proceedings. This is the contract that is pleaded in defense. The Lion Bonding Surety Company joined with its coplaintiff in this action. But the testimony of its official who negotiated the agreement with Wagner tended strongly to support the defense. The Lion Bonding Surety Company has not joined in the appeal to this court, and we have, therefore, no occasion to further consider the defense pleaded as against it. The Iowa Bonding Casualty Company will hereinafter be referred to as plaintiff. The whole controversy, as between the plaintiff and the defendant, centers upon the validity of the defense pleaded. The contentions of the plaintiff in that regard are: (1) That the contract entered into was not binding upon it, because it was not a party thereto; (2) that the Lion Bonding Surety Company had no authority to represent it, or to bind it to the contract thus entered into; (3) that, though the contract were deemed effective to release Wagner from further liability, it was not effective to release the indemnitors. The third and fourth paragraphs of the insurance contract are as follows: "Third: That in the event said company executes said bond, or bonds, with co-sureties, or reinsures any portion of said bond or bonds with reinsuring companies, or procures the execution of said bond or bonds, the undersigned agrees that all of the terms and conditions of this agreement shall apply and operate for the benefit of the company, the procured surety, the co-sureties, and such reinsuring companies as their interests may appear. "Fourth: That the undersigned, in further consideration of the company becoming surety as above, does hereby covenant and agree to indemnify the said company and save it wholly harmless against all loss, costs, damage, charge and expense that may accrue to it, whether sustained or incurred by reason of any act, default, or neglect of the undersigned, or on account of claims made under or in connection with the said bond, or any extension or continuation thereof, hereby agreeing to repay to the said company all such loss, cost, damage, charge and expense, including the fees and compensation and expense of Page 183 any or all attorneys and agents employed by it to investigate or adjust such claims." The plaintiff relies upon the foregoing as constituting a distinct contract between itself and the insurer. The argument is that Paragraph Third was effective to create an independent contract between the reinsurer and the insured, and that the rights of the reinsurer thus created could not be impaired by any arrangement between the insured and his insurer. On the other hand, the contract of reinsurance entered into between the plaintiff and the Lion Bonding Surety Company contained the following section: "Section 5. The reinsured shall take charge of all matters arising under the bond. It shall decide whether or not it is liable thereunder, and shall determine the amount of its liability in case it decides that it is liable. It shall settle or compromise any claims, and defend, settle or compromise any suits, and take such other action, not involving the extension of credit or the advancing of money, in connection with any claim matter arising under the bond, as it may deem advisable. Any such decision, determination, settlement, defense, compromise, or other action of the reinsured in connection with any claim matter arising under the bond shall be final and conclusive and unconditionally binding upon the reinsurer; provided that no payment or other method of settlement by the reinsured shall preclude the reinsurer from showing that the alleged liability or any part thereof for loss under the bond exists or existed under any other bond or bonds given at any time by the reinsured." The contention for the appellees is that, by virtue of this contract of reinsurance, full power was conferred upon the reinsured company to represent the reinsurer, as well as itself, in all matters of controversy as defined in such 2. INSURANCE: Section 5. We do not think that the reinsurance reinsurance: contract had the effect either to multiply or to settlement divide the contract of the original insured. His with liability continued as a single liability, and insured: the risk carried by the insuring companies effect. continued as a single risk. True, profit or loss was to be divided between them, but that was a matter wholly between themselves. It could not have the effect of splitting the cause of action, if any, against the insured, or the cause of action, if any, in favor of his creditors. Paragraph Third above Page 184 quoted contains nothing that necessarily runs counter to this holding. The practical purpose and operation of this Paragraph Third may be illustrated as follows: Suppose there had been no settlement with Wagner, and that the Lion Bonding Surety Company had sued him and his indemnitors for $14,000, being the amount of the loss sustained by the insurer. The defendants could not, in such a case, contend that, because of reinsurance, the Lion Bonding Surety Company had sustained a loss of only $7,000, and not $14,000. Paragraph Third means that the liability of the indemnitors continues for the full amount of the loss, regardless of whether it was borne by the original insurer or by reinsurers. It does not create an independent cause of action in favor of each separate reinsurer, nor does it render it necessary that reinsurers should be joined as plaintiffs with the original insurer. The Lion Bonding Surety Company had a right at all times to maintain an action in its own name for the full amount of the loss, without naming the reinsurer, and without being subject to defense on the ground that a reinsurer had borne part of the loss. We reach the conclusion that, in the negotiations and contract between the Lion Bonding Surety Company and Wagner, it must be considered as representing the insurance which it contracted to give, regardless of whether it had reinsured its loss or not. And this is the real purport of Section 5, which we have quoted above. Under this contract, the right of one company can rise no higher than that of the other, nor can the liability of one for a loss be any greater or less than that of the other. Whatever is done by the insurer in his negotiations with the insured operates, as a matter of law, both to the burden and to the benefit of the other. The insured is not bound to seek out reinsurers and to obtain their independent consent to adjustments and negotiations which he would otherwise be entitled to carry on with the party with whom he contracted. We hold, therefore, that the contract entered into by the Lion Bonding Surety Company was as binding upon the plaintiff as it was upon itself. It may be further added that the plaintiff took the full benefit of the contract, and that such benefit could not have inured to it without the contract and its performance by Wagner. Though, therefore, the plaintiff has in terms purported to repudiate the *Page 185 contract, it has in fact clung to its benefits, and has tendered no rescission. II. It is urged by plaintiff that, even though the contract in question were effective to release Wagner, it does not follow that it is effective to release his indemnitors. In support of this contention, it suggests the analogy that, 3. PRINCIPAL if Wagner had gone into bankruptcy, and had AND SURETY: been discharged, such discharge would not discharge of operate to release his sureties upon any surety: obligation. It argues, therefore, that a settlement contract of release could have no other or with greater effect than a discharge in bankruptcy. principal. This presents a non sequitur. The fact that the discharge of a principal in bankruptcy does not operate to release a surety furnishes no ground for saying that a contractual release of a principal is likewise ineffective to release a surety. The law is well settled otherwise. The general rule is that a surety may set up any defense that is available to the principal. If the plea of a discharge in bankruptcy is to be regarded as a defense, then the most that can be said is that it furnishes an exception to the general rule. Indeed, a discharge in bankruptcy is not strictly a defense to the cause of action. It may well be regarded as simply a legal bar to any remedy. Be that as it may, the fact remains that any valid contract entered into with the principal which operates to his release from liability operates in like manner in favor of his sureties. The judgment below must, accordingly, be affirmed. — Affirmed. De GRAFF, C.J., and ALBERT and MORLING, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431470/	On October 7, 1933, William A. Owen entered into a written lease with A.W. Harroun, whereby said Owen leased of and from said Harroun the East 100 feet of Lot 1 in Block 9 in Mason City, Iowa, for a period of one year from the first day of November, 1933, for the agreed rental of $1,500 per year, with the option to renew and extend the same to the first of January, 1936, at the same rental per year, payable in monthly installments in advance on the first day of each month at the rate of $125 per month. Among other covenants contained in the lease are the following: "It is further agreed by the party of the second part that neither they nor their legal representatives will underlet said premises or any part thereof or assign this lease without the written assent of the party of the first part had thereto and that assignee shall be liable for said rent. "It is further expressly agreed between the parties hereto that if default be made in * * * any of the covenants or agreements herein contained to be kept by the party of the second part, it shall be lawful for the party of the first part or his legal representatives to enter into and upon said premises or any part thereof either with or without process of law to re-enter and re-possess the same at the election of the first party. * * * "Said premises shall be used only for automobile sales, repairs and storage. * * * "The covenants herein contained shall extend to and be binding upon heirs, executors and administrators of the parties of this lease and no modification thereof shall be valid unless in writing." Mr. Owen departed this life intestate on December 7, 1933, and in due time C.O. Wilkinson was appointed and qualified as administrator of his estate. On February 27, 1934, the administrator made application to sell this lease, asking the court to prescribe notice to the landlord and all interested parties, and "that upon said hearing, if it shall seem proper to the court, that said administrator Page 752 be authorized, empowered and directed to sell and assign said lease, etc." Notice was given to the lessor and all persons interested, in accordance with the prior order of the court. The lessor appeared and filed motion for more specific statement, requiring that the applicant set out a copy of the lease. This motion was sustained, and the request complied with. A triple motion to strike, to transfer, and to dismiss was then filed by the appellant. The case was heard on the 5th day of March, 1934, and, after the arguments of counsel, the presiding judge announced that he would take the matter under advisement, and granted counsel leave to submit briefs and amendments. Thereafter, on the 10th of March, another amendment to application was filed, with another triple barreled motion by appellant. On the same date, the Northwest Savings Bank of Mason City, Iowa, appeared in the case and filed an application, setting up its claim of $9,333.02 against the estate, and joining with the administrator in asking for sale of the lease. Appellant likewise attacked this application for the same reasons, by a motion of several pages of printed matter. The administrator on the 30th of March filed an application, entitled an "application for authority to sell personal property and leasehold interest". This was likewise attacked by motion to strike certain portions thereof, and to dismiss. These motions were all submitted with the case, and on the 2d of April, 1934, the court entered his ruling on each and all of said motions overruling the same and granting an exception to the appellant, and on the 4th of April, 1934, the court granted an order directing sale of the personal assets, including the lease, to which the lessor, A.W. Harroun, was given an exception, and he has appealed from said order to this court. The unskillful, choppy, haphazard methods adopted by the appellee in making up the issues and in presenting his proof, leaves much to be desired, even in a probate proceeding. As near as we can gather from the abstract prepared by the appellant, which is not denied by appellee, there was no evidence introduced at the time of the hearing, until after the arguments of counsel, and after the presiding judge had announced that he would take the matter under advisement and granted counsel leave to submit briefs and amendments. Thereafter, the appellee's attorney stated to the court in substance that he would offer the records in evidence. No particular documents were identified, or marked as exhibits, or read Page 753 in evidence. No objections were made to this manner of offer, except that appellant's counsel stated in substance that said record could be properly offered when said cause came on for hearing on objections answering the fact allegations in said application. The record then states that the court adjourned, and that thereafter the presiding judge, at divers times, discussed the law questions with respective counsel, but no further hearing was had until the cause was further submitted on the pleadings on or about the 2d day of April, 1934, when, after some further informal discussion of law questions, without offer of testimony in the presence of, or with the knowledge of, appellant or his counsel, the court granted the order. However, in the amendments to the application which were filed thereafter in accordance with the leave granted by the court, the necessary allegations of fact were stated, and a copy of the lease, which is the principal bone of contention, was attached to the pleadings, and all the properly pleaded facts were admitted by the demurrer or motion to dismiss of the appellant, and we think there was sufficient showing to give the court jurisdiction and to warrant the findings in his order with reference to the factual matters. [1] The court found, among other things, that the estate was insolvent; that there was no real estate owned by the deceased at the time of his death; and that the value of all of his personal assets, including said lease would not equal more than half of the amount of the just debts and charges against the estate. The order further recites that the administrator had been offered $3,250 by the Jewel Motor Company, Inc., for said lease, and that the same was an advantageous offer to the estate, and that it was necessary to sell all of the personal property and said lease to pay the costs of administration, debts, and charges against said estate, and contains the following paragraphs: "The court further finds that the title to the personal property of said estate passed to the administrator upon his appointment as an officer of the court, that he is administering upon said property under the authority and supervision of the court and that as such any order of sale herein made is involuntary insofar as said administrator or said decedent is concerned. "Wherefore the administrator of said estate is hereby ordered and directed to sell, etc. * * * including said lease * * * Page 754 and to sign, execute and deliver a good and sufficient assignment, etc." (Italics ours.) Many printed pages of assignments of error are presented by appellant, all of which we have considered, and we conclude that the only assignment of error which has any merit, and which it can be said the appellant is properly entitled to raise, or which is in any way prejudicial to him, is in reference to the legality of the order of the probate court ordering sale and assignment of the lease, in view of the covenants contained therein "that neither they nor their legal representatives will underlet * * or assign this lease", and the further provision that "the covenants herein shall extend to and be binding upon heirs, executors and administrators of the parties of this lease". A very interesting question is here presented, namely, the construction to be placed upon the foregoing covenants in the lease in question. We do not find that our court has ever directly passed upon this precise question, and there is likewise a dearth of authority from courts of other jurisdictions. We have carefully read all the cases cited in the briefs filed by counsel and have attempted to glean from the various holdings of the courts of this country and England the construction which courts have given to similar restrictive covenants contained in similar documents. It will serve no useful purpose to review all these cases, but we will set forth some of the legal principles and rules of interpretation which we think are fairly well established by the weight of authority. [2] Covenants in leases against assignment or subletting are restraints which courts do not favor, and they are construed withutmost strictness against the lessor. See note in Ann. Cas. 1913B, page 889. Such restrictions are not favored by the law and are strictly construed. Wainwright v. Bankers Loan Investment Co., 112 Va. 630, 72 S.E. 129, Ann. Cas. 1913B, 887. As between the original parties, where the language is plain and unambiguous, such restrictions will be enforced. Snyder v. Bernstein Bros., 201 Iowa 931, 208 N.W. 503. It is well settled that a covenant not to sell or assign the lease is not broken where the assignment is by operation of law, and that an assignment of a lease by a receiver, a trustee in bankruptcy, and the like, as the agent of the law, to a purchaser of the leasehold interest, would not work a forfeiture, unless the covenant is so drawn as expressly to prohibit such a transfer, and to accomplish Page 755 such a prohibition the language must be "very special". Seers v. Hind, 1 Ves. Jr. 294, 30 Eng. Reprint, 351. Such covenants are construed "with the utmost jealousy". Riggs v. Pursell, 66 N.Y. 193. And the use of general language not specially related to the covenant against assignment — language which the law would imply as a term of the lease — is not the "very special" prohibition which the cases require. It was so held in the case of Francis v. Ferguson, 246 N.Y. 516, 159 N.E. 416, 55 A.L.R. 982, in an opinion delivered by Pound, Justice, and concurred in by Chief Justice Cardozo, now of the United States Supreme Court. In that case there was involved a lease of a garage property in New York City for the term of ten years, at a rental of $16,000 a year. Before the term had half expired, the lessee died, leaving a last will. The executors, apparently on their own motion, entered into an agreement with one Archer, to transfer the lease. Archer refused to complete the agreement on the grounds that the lessor did not consent to the assignment. The complainant asked for a declaratory judgment that the plaintiffs might sell and give good title to the lease. The lower court dismissed the motion for judgment on the pleadings. The Appellate Division of the court unanimously affirmed the judgment. The Supreme Court of New York reversed the case. The lease contained the following covenant: "That the tenant shall not assign this agreement, or underlet or underlease the premises or any part thereof, * * without the landlord's consent in writing." At the end of the lease appears the following general clause: "And it is further understood and agreed that the covenants and agreements herein contained are binding on the parties hereto and their legal representatives." The court said: "The judgment below proceeds upon a misconception of the effect of the final clause of the lease. It expresses merely what the law presumes, in the absence of such a clause. `It is a presumption of law, in the absence of express words, that the parties to a contract intend to bind not only themselves, but their personal representatives.' Kernochan v. Murray, 111 N.Y. 306, 308, 18 N.E. 868, 869, 2 L.R.A. 183, 7 Am. St. Rep. 744." Page 756 The court further states: "An ordinary covenant against assignment does not bind the executors of the tenant, and is not broken by a transfer of the leased premises by operation of law. Squire v. Learned,196 Mass. 134, 81 N.E. 880, 11 L.R.A. (N.S.) 634, 124 Am. St. Rep. 525, 12 Ann. Cas. 977. * * "On the death of the tenant, his property was transferred to the executors of his will by operation of law. They had capacity to take and to dispose of it. If it had been the intention of the parties that the personal representatives of the tenant should not dispose of the lease as assets of the testator, the provision against assignment should have been directed to the particular fact. The duty of executors requires them to administer and settle the estate with due diligence. To interfere with the ordinary course of administration and compel them to hold the leased premises until the expiration of the term, something more than casual general words without meaning should appear." In this case the court cites the case of Roe ex dem. Gregson v. Harrison, 2 T.R. 425, 100 Eng. Reprint 229, wherein the covenant was "that neither the tenant nor his executors or administrators shall let", and the New York court, in commenting on this covenant, said: "The restriction was explicit, and no doubt could arise as to the meaning of the parties." The language of the covenant in this English case last referred to is identical with the lease in question, except the words "legal representatives" are used in our lease, instead of the words "executors and administrators". And there is still another distinction between the New York case and the case at bar: In the former, the assignment was a voluntary assignment by the executors, and in the instant case was made under order of the court, and therefore cannot be construed as a voluntary assignment. The estate of W.A. Owen was hopelessly insolvent. The administrator was appointed by the court. The only voluntary act on his part was that he qualified as such administrator. Thereafter, it became his bounden, statutory duty to apply to the court for direction in the sale and transfer of the personal property in order to obtain funds with which to pay the creditors. He had no election, Page 757 except to apply to the court, or resign his office. It will be noticed that in his first application he approached the court as follows: "That upon said hearing, if it shall seem proper to the court, that this administrator be authorized, empowered and directed to sell and assign said lease." The court found that the administrator could not, with profit to the estate, continue the business. He also found that under the terms of the lease the estate was bound to pay the rent for the entire term of the lease. He also found that an offer of $3,250, guaranteed by pledge of cash deposited in the bank of $1,500, had been made to the administrator as a consideration for this lease. The creditors were entitled to the full benefit of the value of this leasehold interest. It certainly was never intended by the parties, nor in contemplation in their minds when they entered into this lease that in the event of death of either party, the lease should terminate or that one party should thereby be given an advantage over the other. In the case of Farnum v. Hefner, 79 Cal. 575, 21 P. 955, 12 Am. St. Rep. 174, a California court said: "The covenant in the lease is the ordinary kind, which applies, it seems to us, to a voluntary, and not an involuntary, assignment of the lease. It is firmly established by authority that under such a covenant an involuntary assignment by sale under execution — bankruptcy, and the like — is not a violation of the covenant and does not work a forfeiture. 2 Greenl. Ev., section 245; Wood on Landlord and Tenant, 2d Ed., p. 714; Riggs v. Pursell, 66 N.Y. 198; 1 Taylor on Landlord and Tenant, section 408; Bemis v. Wilder, 100 Mass. 446; Jackson v. Silvernail, 15 Johns. 277. "If the landlord desires to avoid such involuntary transfer of the leasehold interest of the tenant, he may provide expressly in his lease that such transfer of the property shall work a forfeiture, and the same will be effectual." In the above case the appellant brought his action and recovered a judgment against the tenant and levied upon the leasehold interest, and it was sold on execution. The court said: "We are quite clear, from the authorities cited above, that the transfer of this property by the judgment and sale of the respondent Page 758 did not forfeit the lease, and that the ruling of the court cannot be sustained on that ground." In the case of West Shore R. Co. v. Wenner, 70 N.J. Law 233, 57 A. 408, 103 Am. St. Rep. 801, 1 Ann. Cas. 790, a New Jersey case, the covenant in the lease was as follows: "The said party of the second part (the lessee) for himself, his executors, administrators and assigns, does hereby covenant and agree to and with the said parties of the first part (the lessors), their successors and assigns, * * * that the said party of the second part, his executors, administrators or assigns, or any of them, shall not nor will, at any time or times hereafter during the term hereby granted, lease, let or demise all or any part of the said premises, nor assign, transfer or make over the same or this present lease or any of his or their term of time therein." The lessee gave a mortgage on this lease and thereafter died in possession of the premises. The mortgagee brought an action to foreclose his mortgage. The lease was sold and conveyed by one of the masters in chancery and the purchaser took possession of the premises and sublet them to another party. The court held that by the language of the mortgage, which was executed by the lessee, the lease was assigned, transferred, and set over to the mortgagee, and, by making default in payment, he thus gave the mortgagee the absolute right to enter upon the premises or to sell the same to pay the mortgage debt. Thus the act and default of the lessee, operating directly upon the lease, resulted in the transfer of the same, and that result must be deemed to have been within the contemplation of the lessee when he executed the mortgage and failed to pay the debt. The defendants insisted that as the mortgage itself was not a violation of the covenant (because it did not pass the legal title), the legal consequences to which it gave rise cannot be so considered, and cited the case of Doe S. Mitchinson v. Carter, 8 T.R. 57, in support of their position. In this case the lessee had given a warrant of attorney to confess judgment of a debt, and the judgment being entered, the leasehold was sold under execution levied thereon, and the court held that such a sale did not work a forfeiture. The same view was approved by a majority of the judges in Croft v. Lumley, 6 H.L.C. 672. The court says: Page 759 "But a distinction was drawn between acts of the lessee directly operating on his estate and the act then sub judice, which did not, of its own force, affect the estate." In the case of Pappas v. Broad East Jersey Realty Co., 103 N.J. Law, 704, 137 A. 417, a New Jersey case, contains a discussion of the legal principles involved. That was a case where the lease contained an ordinary covenant against assignment, and the assignment was made by a receiver appointed by the court on the petition of one of the stockholders of the National Drug Stores Corporation, the lessee. An ejectment suit was brought against the assignee. The lower court found: "The application for a receiver in this instance was made by a stockholder, and consented to by the corporation in order to protect its assets, and was in the nature of an application for a custodial receiver, directed to the equity side of the court. "The plaintiff's insistment is that the covenant against assignment was breached when the receiver assigned the lease to the defendant without having obtained the consent of the parties. The defendant's contention is that the covenant was not breached because it prohibits only a voluntary assignment and that the assignment by the equity receiver was not a voluntary assignment; and bases his contention upon the decisions with relations to statutory receivers, which are to the effect that such assignments are by act and operation of law, rather than the act of the parties, and therefore no breach of the covenant. He relies, for support in his contention, chiefly on such cases as Fleming v. Fleming Hotel Co., 69 N.J. Eq. 715, 61 A. 157, which was the case of a statutory trustee in bankruptcy; Gazlay v. Williams, 210 U.S. 41, 28 S. Ct. 687, 52 L. Ed. 950, a statutory assignee in insolvency; Bemis v. Wilder, 100 Mass. 446. "It is well settled that in the case of a receiver where the petitioner is insolvent, or of a trustee for a bankrupt, that the title to the property of the insolvent or bankrupt passes to the receiver, and that in such cases, the sale by the receiver of leasehold property, even in the face of a restrictive covenant such as we find here, would not be in violation of the covenant, since it would be an assignment by act and operation of law. * * "But in this case, which is purely an equity receivership, the receiver was a mere custodian and therefore could not dispose of Page 760 this lease in the face of the covenant contained therein or givea greater title than the corporation itself possessed, but couldonly convey such right, title, and interest as the corporationhad in the res itself. * * "It seems to me that in this case the court, in effect, substituted itself, through the appointment of its receiver as its agent, for the officers and managers of the corporation. It did not take the property of the company for distribution among its creditors, as in the case of receiverships in insolvency and trustees in bankruptcy, and that therefore the rights of the receiver rose no higher than the rights of the corporation itself, and so, what the corporation could not do with its property, the court, through its receiver, could not do." (Italics ours.) Applying the logic and reasoning in this case to the case before us, we arrive at this situation: The title by operation of law passed to the administrator, not to be held by the estate as a mere custodian, but for the creditors, to be liquidated and paid upon their debts. The sale and transfer was not his act, but the act of the court, a judicial act, certainly involuntary and clearly by operation of law. In the case of Seers v. Hind, 1 Ves. Jr. 294, it was held that the executors of a lessee may dispose of the lease as an asset of the testator, even though the lease contains a provision against alienation by the lessee. The case of Walker v. Wadley, 124 Ga. 275, 52 S.E. 904, involved a lease containing the following covenant: "And it is further covenanted that the said party of the second part [lessee], his heirs, executors and administrators, shall not be at liberty to assign this lease or sublet said premises, or any part thereof." The court held that after the death of the lessee, his administrator could not assign the lease without breaking this covenant. In that case, however, the administrator simply sublet the premises for the remainder of the term in consideration of the payment of $150 over and above the rent provided for in the lease. This was purely a voluntary assignment, and a direct violation of the provisions contained in the covenant. In the case of Miller v. Fredeking, 101 W. Va. 643,133 S.E. 375, 46 A.L.R. 842, we find a discussion of the legal principles Page 761 involved. In that case there was an ordinary covenant against the assignment or subletting, and no mention of administrators, executors, or legal representatives of the lessee. The court in its discussion of the legal principles involved said: "It is quite generally held that, where such transfer or assignment of the lease is made through involuntary bankruptcy proceedings, there is no violation of the covenant not to assign without the written consent of the lessor. [Citing cases.] But if the lease provides that the lessee's insolvency shall terminate the lease and give the lessor the right to re-enter, the trustee has no right or power to sell the lease for the benefit of the creditors. Jones on Landlord and Tenant, section 466. * * There is no such provision in the lease under consideration. * * * "In Bemis v. Wilder, 100 Mass. 446, the court said that an assignment by operation of law passed the estate, discharged of the covenant, to the assignee; and that was so where the transfer arose from voluntary proceedings in insolvency as distinguished from proceedings in invitum, where the proceeding was not colorable, and not merely for the purpose of effecting the transfer in fraud of the lessor, citing Taylor on Landlord Tenant, section 408." In the case In re Prudential Lithograph Co. (C.C.A.) 270 F. 469, the court said: "A covenant against assignment or subletting of a lease without the written consent of the lessor is not breached by an assignment by operation of law in the event of the bankruptcy of the lessee." It has been held that a covenant against assignment will not prohibit a subletting. Goldman v. Daniel Feder Co., 84 W. Va. 600, 100 S.E. 400, 7 A.L.R. 246. This shows the tendency of the courts to strictly construe such restrictive covenants. It was held in the case of Gazlay v. Williams, supra, that a sale by trustee in bankruptcy under order of court of his bankrupt's interest as lessee in a lease of real property is not a breach of a condition in such lease imposing a forfeiture if the lessee assigned the lease, where the lessee's interest should be sold under execution or other legal process without the lessor's written consent, and was not a violation of such covenant. The exact language of the covenant in said lease was as follows: Page 762 "Provided, however, that if said lessee shall assign this lease or underlet said premises, or any part thereof, or if said lessee's interest therein shall be sold under execution or other legal process, without the written consent of said lessors, their heirs or assigns; is first had, or if said lessee or assigns shall fail to keep any of the other covenants of this lease by said lessee to be kept, it shall be lawful for said lessors, their heirs or assigns, into said premises to re-enter, etc." Chief Justice Fuller, of the United States Supreme Court, in discussing this question, said: "The passage of the lessees' estate from Brown, the bankrupt, to Williams, the trustee, as of the date of the adjudication, was by operation of law, and not by the act of the bankrupt, nor was it by sale. The condition imposed forfeiture if the lessee assigned the lease or the lessees' interest should be sold under execution or other legal process without lessors' written consent. "A sale by the trustee for the benefit of Brown's creditors was not forbidden by the condition and would not be in breach thereof. It would not be a voluntary assignment by the lessee, nor a sale of the lessee's interest, but of the trustee's interest, held under the bankruptcy proceedings, for the benefit of creditors. Jones, in his work on Landlord and Tenant, lays it down (section 466) that `an ordinary covenant against subletting and assignment is not broken by a transfer of the leased premises by operation of law, but the covenant may be so drawn as to expressly prohibit such a transfer, and in that case the lease would be forfeited by an assignment by operation of law'. The covenant here is not of that character." Chief Justice Fuller bases his holding on the case of Doe ex dem. Goodbehere v. Bevan, 3 Maule S. 353, as applicable: "The premises in question in this case, being a public house, were demised by Goodbehere to one Shaw for a term of years, and Shaw covenanted that he, his executors, etc., should not nor would, during the term, assign the indenture, or his or their interest therein, or assign, set, or underlet the messuage and premises, or any part thereof, to any person or persons whatsoever, without the consent in writing of the lessor, his executors, etc. Proviso, that in case Shaw, his executors, etc., should part with his or their interest in the premises, or any part thereof, contrary to his covenant, that the Page 763 lessor might re-enter. Afterwards Shaw deposited this lease with Whitbread Company as a security for the repayment of money borrowed of them; and, becoming bankrupt, and his estate and effects being assigned by the commissioners to his assignees, the lease was, upon the petition of Whitbread Company, directed by the Lord Chancellor to be sold in discharge of their debt, and was, accordingly, sold to the defendant, and, without the consent of Goodbehere, assigned to the defendant by the assignees, and he entered, etc. The trial judge ruled that this was not a breach of the proviso not to assign without consent, etc., inasmuch as the covenant did not extend to Shaw's assignees, they being assignees in law; wherefore he directed a nonsuit. The rule to set aside the nonsuit was discharged on argument before Lord Ellenborough, Ch. J.; LeBlanc, J.; Bayley, J., and Dampier, J. (delivering concurring opinions); and Bayley, J., said: "`It has never been considered that the lessee's becoming bankrupt was an avoiding of the lease within this proviso; and if it be not, what act has the lessee done to avoid it? All that has followed upon his bankruptcy is not by his act, but by the operation of law, transferring his property to his assignees. Then shall the assignees have capacity to take it, and yet not to dispose of it? Shall they take it only for their own benefit, or be obliged to retain it in their hands, to the prejudice of the creditors, for whose benefit the law originally cast it upon them? Undoubtedly that can never be.'" The nearest approach to this question by our own court is found in the case of Spinney v. Miller, 114 Iowa 210, 86 N.W. 317, 89 Am. St. Rep. 351. The decision turns on a section of the Code, but the discussion shows the leaning of our court. This was an action in equity to foreclose a mortgage which contained a provision: "It is expressly agreed that this mortgage is nonnegotiable, and is uncollectible in the hands of any other person than said association or its successors, or its duly authorized attorney or agents", and it was contended by the defendant that because of this provision the mortgage was not assignable and therefore plaintiff, as assignee, could not maintain the action. The plaintiff acquired said title by assignment from a receiver duly appointed for the corporation, mortgagee, upon a showing of its insolvency. The sale by the receiver was under order or authority of court, and the court said that notwithstanding the provision in the mortgage, Page 764 it was transferable under our statute (Code of 1897, section 3046). The court said: "Furthermore, it is universally held that a provision restraining the assignment of such an instrument is not operative against an assignment effected by law or through an order ofcourt. Where it is given force, it is restricted to voluntary alienation. 4 Kent, Commentaries, 128." (Italics ours.) The case is cited with approval in the case of Blank v. Independent Ice Co., 153 Iowa, 241, at page 248, 133 N.W. 344, 43 L.R.A. (N.S.) 115. The question in the latter case arose over the power of the court to order its receiver to sell an option contract, which is likewise applicable to the case at bar, for this lease also contains an option to re-lease for another year on the same terms. We said: "This court has held that a mere option to purchase real estate creates no interest in the land that is subject to execution. Sweezy v. Jones, 65 Iowa 272, 21 N.W. 603. And in Myer v. Stone Son, 128 Iowa 10, 102 N.W. 507, 111 Am. St. Rep. 180 it was held that an option which was expressly limited to the party to whom it was given could not be assigned. There is also language in the opinion warranting the conclusion that no purely option contract can be voluntarily assigned. But there is a cleardistinction between the voluntary assignment of such a contractand an assignment by the court for the purpose of protecting thecreditors of an insolvent estate. In the Myer case, we said that the privilege of buying property at a certain price is often of much value, and this must be true; for, where land values are rapidly increasing, the right to purchase at a given price within a specified time is often of great value. Many men in this state alone have made fortunes out of such options within the past few years. If an option has, in fact, a value, we see no sound reason why it may not be sold and assigned under order of the court for the benefit of the creditors of an insolvent estate, even though it may not ordinarily be assigned by the party to whom it was originally given." (Italics ours.) Under the lease in the instant case, had the lessee, during his lifetime, been adjudged a bankrupt or had a judgment creditor levied upon and sold this lease, in either event under the better weight of authority the covenant in this lease would not have been Page 765 broken. In such event, it would have been an act by operation of law, there being no express, specific words especially applicable in the lease against involuntary assignments. This being true, can it be said that what the creditors could do in his lifetime, the law will not permit the creditors to do after his death, to wit, subject his leasehold interest to payment of the bona fide indebtedness of lessee's creditors? Therefore, in accordance with what we believe to be sound in principle, and in line with the greater weight of authority, it is the holding of this court that the administrator of this insolvent estate is an officer of the court, or arm of the law, by means of which the property of the deceased is conveyed to or reached by the creditors, and that the assignment under order of court, under the circumstances disclosed in this case, is an involuntary assignment by operation of law, and that the lease in question is not so drawn as to expressly prohibit such a transfer. It therefore follows that the order and judgment of the trial court should be, and the same is hereby, affirmed. — Affirmed. ANDERSON, C.J., and ALBERT, MITCHELL, KINTZINGER, DONEGAN, and POWERS, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431472/	I. On and prior to April 30, 1919, the plaintiff and her husband (since deceased) were the owners of a 1. PRINCIPAL 197-acre farm, situated in Floyd County. On or AND AGENT: about the same date, they listed the same for undisclosed sale with one Soesbe, a banker and real-estate principal: agent. On April 30, 1919, Soesbe obtained their liability. signature to a Page 111 contract which amounted to an offer of sale, if accepted within 10 days. The proposed purchaser named in the contract was P.H. Bestor, defendant herein. Bestor was not, in fact, the proposed purchaser-to-be. He was an employee of Soesbe's, and his name was occasionally used by Soesbe, with his consent, as a so-called "straw man." Soesbe had in contemplation an arrangement with the defendant Johnson, and was, at or about this time, carrying on negotiations with Johnson for the acquisition of this farm, whereby Johnson should become the purchaser of the farm, and should furnish the funds therefor, and whereby Soesbe himself should take a one-half interest in the contract of purchase, and put his own time and efforts in handling the transaction against the funds actually invested by Johnson. Such arrangement was actually entered into between Soesbe and Johnson, first orally and then in writing, before plaintiff's written offer was accepted. On May 10, 1919, Soesbe caused the acceptance to be made in the name of Bestor, and Bestor signed the contract accordingly. Immediately thereafter, on May 12th, Bestor assigned the contract to Johnson. The assignment executed by Bestor assumed to charge Johnson with the performance of all the obligations of the contract, including the payment of the purchase price. Under this contract, the purchase price was $37,922.50, of which $1,000 was to be paid down, with the execution of the contract, and $4,000 was to be paid on March 1, 1920. The balance of the purchase price was to run for 10 years, at 5 per cent annual interest. The vendors were never informed of Johnson's interest in the purchase. On February 28th following, they conveyed the property by warranty deed to Bestor, and Bestor conveyed to Johnson. Johnson paid the installment of $1,000 at the time of the execution of the contract, and paid the further installment of $4,000 at the time of execution of the deed. The balance of the purchase price was separated into two mortgages: a first mortgage of $15,000, and a second mortgage of $17,922.50. These were executed by Bestor. The first mortgage was negotiated. This suit was brought as a foreclosure of the second mortgage. After a conveyance to Bestor by the vendors, Bestor executed a deed to Johnson, by the terms of which Johnson assumed the payment of the mortgages, and mailed the same to Johnson at Waterloo. Thereupon, Johnson objected to the Page 112 assumption clause, and returned the deed, with the assertion that, by his understanding with Soesbe, he was not to be personally liable for the mortgages. He therefore asked that another deed be executed, wherefrom such clause should be omitted. His claim in this respect was conceded by Bestor, and another deed was executed and sent to him, in the form desired by him. The understanding between Soesbe and Johnson was in the first instance oral, and was reduced to writing and duly signed by both parties on May 5, 1919. It is undisputed that Johnson insisted that his name should not be known in the transaction. It was also agreed between him and Soesbe that this could be accomplished by the use of the name of Bestor as a "straw man." While much emphasis is laid by the plaintiff upon this circumstance, as amounting to a fraudulent conspiracy, it is to be said that it was not necessarily such. There were legitimate reasons for Johnson's desire that his name should not appear in the transaction. He was a banker, and was not engaged in the real-estate business. He was not a borrower. The appearance of his name upon the public records as a mortgagor of property might easily be misunderstood, and its significance might be readily distorted. Such a course on his part would not necessarily operate as a fraud against the plaintiff, provided that he had thereafter consistently maintained the relation thus assumed by him, and had performed the legal obligations that arose out of his relation. However, his repudiation of his relation to the transaction presents a quite different question. The theory of recovery sustained by the trial court was that Johnson was an undisclosed principal in the transaction; that Soesbe was his agent, as such; that they were the only parties in interest in the transaction; that Soesbe's interest was also undisclosed; that Bestor had no interest therein, but lent himself as a mere mask to conceal the identity of the real parties in interest. Soesbe was not made a party defendant; so that the question of his liability, if any, either to the plaintiff or to Johnson, is not involved herein. The theory of defense presented by counsel for the appellant, Johnson, is that he was not in or of the original transaction; that Soesbe and Bestor had acquired the farm from plaintiff before he became interested therein; that the written contract between him and Soesbe, dated May 5, 1919, was not Page 113 signed by him until May 20th, which was 10 days after the contract of purchase from the plaintiff was made; that, therefore, he was a mere subsequent vendee, who was liable only to his own vendor, and to the extent of his contract with his own vendor. It will be noted, therefore, that the pivot of the case upon which the result must turn is a question of fact, viz: Was there an understanding between Johnson and Soesbe, oral or written, prior to May 10, 1919, that he was to be the purchaser; or did his relation to the transaction have its origin after May 10, 1919? The evidence of Soesbe is that the oral understanding between him and Johnson had been reached before he accepted the contract on May 10th. The contract of May 5, 1919, was as follows: "This agreement made this 5th day of May, 1919, between E.L. Johnson, Waterloo, Iowa, party of the first part, and C.W. Soesbe of Greene, Iowa, party of the second part, witnesseth: "That whereas, party of the first part is purchasing and takinga deed to the following described premises, namely, the west half of the northeast quarter and the southeast quarter of the northwest quarter and the north half of the northwest quarter, except railway right of way, of Section Number twenty-two (22) in Township Number ninety-five (95) north, of Range Number Twenty-six (26) west of the 5th P.M. in Floyd County, for whichhe is paying $192.50 per acre for 197 acres, of which $1,000.00 has been paid down as earnest money, and $4,000.00 is to be paid down on March 1st, 1920, and the balance of $32,922.50 is to run ten years at 5 per cent with option to pay any part thereof on any interest day. The party of the second part, having received a commission of $2.50 per acre of the 197 acres amounting to $492.50, which has been deducted from the payment of $1,000.00 paid as earnest money, the total sum to be paid by the first party shall be the net sum or $4,507.50. "Whereas, it is desired by the parties hereto to enter into an agreement regarding the sale of said land and provide compensation to said second party for the selling of the same. "Now, therefore, it is hereby mutually agreed that party of the first part does hereby give and grant to party of the second part, the exclusive right to sell said premises for and during Page 114 a period of two (2) years from the date hereof, provided that said land shall not be sold at a less price than twenty-five ($25.00) dollars per acre over and above the cost of said lands to party of the first part and that in the event that said lands are not sold within said two years' period, then at the end of said period, the same shall be put up for sale, at public auction, and sold unless otherwise mutually agreed upon. It is further agreed that party of the first part will advance such money as may be necessary to pay all taxes and assessments and insurance, such buildings and improvements, if any, to be mutually agreed upon by the parties hereto. It is further agreed that party of the second part shall have the right to enter into leases with responsible parties for said land or part thereof at a rental of not less than ($8.00) eight dollars per acre, and such leases to extend not longer than March 1st, 1922, unless otherwise mutually agreed by the parties hereto, and it is the duty of second party to keep said lands leased to responsible parties. Party of the second part agrees to give his time and attention to the care and to the sale of said premises and to use his best efforts and good faith in the carrying out of this agreement, and that no charge shall be made or compensation asked or claimed for his time or efforts under this agreement other than is specifically set forth herein, and that no charge shall be made by him for any commissions in connection with the purchase or in connection with the sale of said lands, or in connection with the lease or collection of the rent. It is further agreed that all income and receipts from the said premises shall be paid over to the party of the first part as collected and due account of the same kept by him, and that upon the sale of said premises, there shall be added to the purchase price of said lands, all moneys advanced by party of the first part for taxes, assessments, insurance, buildings, improvements or other proper expenses in connection with said lands, and there shall be computed upon and added to the said amount, interest at the rate of eight (8) per cent per annum, payable annually, and that said total amount and interest shall be deducted from the selling price of said lands plus all moneys received as income and profits from the same, and that the balance so remaining shall thereupon be divided equally between the parties hereto, the said one half such balance so found to be in full compensation to party of the second part Page 115 for his care, attention and services rendered under this contract or in connection with the said lands. In the event of the death of the party of the second part before the expiration of this agreement, then the authority to sell and to manage said lands, to him herein granted, shall cease, and such authority shall revert to the party of the first part, his heirs and assigns, and upon the sale of the said premises in accordance with this contract the share which would be due said party of the second part hereunder shall be paid over, when determined, as above set forth, to the legal representatives of the party of the second part. "It is further understood and agreed by the parties hereto that in case sale of said lands shall be made at a loss computing the same, as above set forth, that party of the second part doeshereby agree to share one half of the said loss and pay the sameto party of the first part as soon as the amount thereof is determined. "In witness whereof we have hereunto set our hands the day first above written. "C.W. Soesbe "E.L. Johnson "Witness: "K.L. Walsh." Counsel for appellant contends that this contract was not signed by Johnson until May 20th. This contention of fact is a matter of inference, predicated upon a letter written by Johnson on May 20th, wherein he purported to return a copy of this contract to Soesbe. Such letter was as follows: "Waterloo, Iowa "May 20th, 1919. "Mr. C.W. Soesbe, "Greene, Iowa "Enclosed is my check for $507.50 together with one copy of the contract which you sent signed by me, covering the deal for the M.C. Collentine farm of 197 acres, contracted to P.H. Bestor and assigned by Bestor to me. I understand that the mortgage will be given by Bestor and he will deed to me and I will not be obligated under this mortgage nor my name appear. I hope that an early sale can be made. This certainly seems to Page 116 be a great year to sell land. Walter handed me these papers on his return and I trust the delay has not inconvenienced you. "ELJ:M E.L. Johnson "Enclosure. "By error contract is locked up but here is check anyway." The person referred to in the foregoing letter as "Walter" was the brother of Johnson, who had represented him to some extent in the transaction. Two days later, Johnson wrote the following letter: "Waterloo, Iowa "May 22d 1919. "Mr. C.W. Soesbe, "Greene, Iowa "Enclosed is one copy of the contract in regard to the Collentine land and the Bestor contract in regard to it for which I sent you check for $507.50 the other day. I regret the matterhas been delayed and that the contract was not earlier in its return. I notice the advance in the price of lands in the western part of the state. There ought to be something in this in an early turn over. "E.L. Johnson "ELJ:M" The inference which counsel draws from the foregoing letters is that the date of the first letter must represent the time of the signing of the contract of May 5th. Soesbe and Bestor testified that they could not be sure of the exact date of the signing by Johnson. As against this, Soesbe's evidence is undisputed that the oral arrangement between him and Johnson was made prior to May 10th. This of itself would have been sufficient, even though it had never been put in writing. Moreover, in the letters referred to, Johnson excuses his "delay." This of itself indicates that the return of the contract was due at an earlier date. Furthermore, counsel has quite overlooked the testimony of Johnson himself. As a witness, he identified the contract as follows: "This is the contract I made with Mr. Soesbe on the 5th day of May, 1919, in reference to the purchase of said land, — these three sheets." Page 117 He also testified: "After this arrangement between Mr. Soesbe and myself was entered into, and I was to pay the money to secure it, I saw that contract that he procured from Collentines for this land, which was shown to me to show what the deal was, and as the matter was going through that we had talked, and that the thing had been done." He did not testify that he signed the contract on any other date than on May 5th. The contract of May 5th incorporated the very terms of sale in accordance with the written offer of vendors of April 30th. So, by this contract, Johnson bound himself to the purchase, while the property was still owned by the Collentines. It must be said, therefore, that the important premise of fact upon which the argument of the appellant is predicated, fails, and that appellant must be deemed to have entered fully into the transaction prior to May 10th. It will be noted also from the contract of May 5th that Johnson expressly acknowledges his promise to pay for the land at $192.50 per acre. This was the exact price to be received by the then owners. The rule of law contended for by appellant being accepted, — that, in order to hold an undisclosed principal to the terms of contract made by his alleged agent, the authority of the agent, as such, and the scope of his agency, as well, must be proved, — such proof is complete in the contract of May 5th. Furthermore, the fact that the appellant received the full benefit of the contract pursuant to its terms, with full knowledge of the facts pertaining to the transaction, is proof, both of the agency and of the scope of it. Still further evidence is found in the fact that, in the assignment of the contract made by Bestor, immediately upon the execution thereof, it was stipulated that Johnson assumed all the obligations thereof. No objection was made by 2. MORTGAGES: Johnson to this clause at that time, though he assumption did object thereto one year later. This promise, by however, added nothing to the obligations which he subsequent had already acknowledged in the contract of May vendee: 5th. Some stress is laid by appellee upon this right to assumption clause in the assignment of the cancel. contract, to the effect that this alone created a liability. We do not hold liability upon such ground. Page 118 It was open to the appellant to contradict this provision by oral evidence. It was also open to him to obtain release therefrom by the consent of Soesbe and Bestor, provided it was done before knowledge thereof came to the Collentines. He did obtain release therefrom from Soesbe and Bestor, one year later, and before any knowledge thereof had come to the Collentines. His liability in this case rests, not upon the fact that, as a subsequent vendee, he voluntarily assumed payment of the incumbrance, but upon the fact that he was the real party in interest in the original transaction, and that, as such, he was liable for the purchase-money mortgage only because it was a part of such original transaction. The significance of the contract of May 5th is not that it created a cause of action against appellant in favor of plaintiff, but that it was evidence of the relation which the appellant actually sustained to the original transaction. And such is the only significance which we attach to the assumption clause contained in Bestor's assignment of the contract. This disposes of the argument by counsel pro and con, on the subject of the liability created by such assumption clause. On this general subject, our attitude is indicated inShult v. Doyle, 200 Iowa 1. It may be noted further that we are not concerned in this case with the question of mutual obligations assumed, as between Johnson and Soesbe. It being proved that Johnson was the undisclosed principal in the transaction, no agreement between him and his agent or agents which was calculated to protect him as against liability, and which does not negative his character as principal, can avail him as against the plaintiff. For the performance of such agreements, if any, he must look to the parties who made them. II. It appears that the plaintiff, as holder of the second mortgage, was compelled to pay certain installments of interest upon the $15,000 mortgage, and was likewise compelled to pay certain installments of taxes, to a total amount 3. MORTGAGES: of more than $1,000. She prayed recovery of such foreclosure: amount from the defendant. The trial court, non- apparently out of an abundance of caution, prejudicial refused to enter personal judgment against judgment. Johnson for such amount, but did enter judgmentin rem against the property, and ordered that it be first paid out of the proceeds of execution sale. The *Page 119 necessary effect of this would be to increase by that much the deficiency judgment, if any; and the appellant complains of this feature of the judgment. The argument is that, at most, the plaintiff was entitled only to prorate the amount thus paid, with the amount of her mortgage, in the application of proceeds of sale. We are unable to see any reason why personal judgment should not have been entered against the appellant for such amount. He was as much liable for the first mortgage as for the second. And this is likewise true as to the taxes. The contract of sale and the contract of May 5th expressly provided that he should pay the taxes. If the plaintiff had not paid them, they would be a prior charge upon the property. If she was compelled to pay them, to protect the property against a sale for taxes or against a foreclosure of the first mortgage, such payment operated protanto to the benefit of the appellant, and to his protection against further damage and loss. The order of the court worked no wrong to the appellant. It simply preserved — perhaps restored — a status quo. Upon the record before us, we see no ground for disturbing the decree of the trial court in any respect. It is, accordingly, affirmed. — Affirmed. FAVILLE, C.J., and ARTHUR and ALBERT, JJ., concur. SUPPLEMENTAL OPINION.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431474/	I must confess that I am not free from doubt in this case. I concurred in the opinion as originally filed, but on rehearing I am very much in doubt as to the correctness of the original opinion. The supplemental opinion does not altogether answer the troubles that confront me. We are committed in this state to the doctrine of an undisclosed principal. All of the courts of the country and all of the text-writers recognize the doctrine as being an anomaly, and wholly inconsistent with the general principles of the law of contract. It has been engrafted on the law by virtue of necessity, to effectuate justice. I am willing to concede that the doctrine has been recognized and is in force in this state. We have so declared a number of times, and I am not disposed to dispute the proposition now. But granted that we recognize the anomalous theory that one may be bound by a contract to which he is not a party, our cases predicate the right of recovery solely on the theory Page 123 of agency. In other words, the party is bound because he is the undisclosed principal to a contract procured in his behalf by hisduly authorized agent. Not all of the courts base the right of action upon this ground, but we are committed to it. Therefore, we have a situation where, in this instance, Collentine is claiming the right to hold Johnson on a contract because it is claimed that the contract was made by Johnson, through his agent. Collentine never heard of Johnson at all in connection with the matter. He sold his land to Bestor. Soesbe brought Collentine and Bestor together. Collentine never heard of Johnson in the deal, and was content and satisfied to make his contract with Bestor, to receive the down payment that was made, and to take a mortgage upon the land for the deferred payments. This was Collentine's contract. It is suggested in the supplemental opinion that Soesbe, and even Johnson, might be liable for fraud, because of misrepresentations made to Collentine by Soesbe in connection with the deal. The only fraud that could possibly be made the basis of recovery, as I read the record, would be the representations that Bestor was good financially, when in fact he was insolvent. There is no evidence whatever that Johnson knew that Soesbe made any such representations, and not a suggestion of evidence that, even if he knew that Soesbe made them, he authorized him to make them, or entered into any conspiracy with Soesbe that they should be made. Therefore, the suggestion that an action at law for deceit might lie against Johnson, on the theory of a conspiracy with Soesbe to deceive Collentine regarding the financial standing of Bestor, is quite by the mark. If Collentine has any such action, he has never suggested it in this case. This is a suit in equity, to foreclose a mortgage upon real estate, and for recovery on certain promissory notes, with interest and attorneys' fees, as provided in the notes. No claim of a vendor's lien is asserted. It is simply an attempt to hold Johnson, as though he had assumed and agreed to pay a mortgage which he in fact did not assume and agree to pay. In fact, no recovery for the purchase price, as such, is sought. The action is to hold Johnson on Bestor's mortgage, according to its terms. I will concede that, if Soesbe was Johnson's agent in buying the premises, Johnson, as an undisclosed principal, could be liable in so far as Soesbe had power and authority to bind him. Page 124 But I have yet to learn that any agent can bind his principal in the purchase of property by other and different terms than the principal authorized, where there is neither estoppel nor ratification involved. There is no question, under the record, but that Johnson expressly limited the authority of Soesbe, in purchasing the land from Collentine. He agreed to make the down payment in cash, and this he did. He never agreed, directly or indirectly, in any way, to make any further payments on the land. The land itself was to stand as security for the deferred payments. This was his agreement — a common one. Collentine never dreamed of a personal liability on the part of Johnson. He sold the land with a down payment and security on the land for the deferred payments. The only authority in the world that Soesbe had from Johnson was to buy the land on the express terms that Johnson would make the down payment, and assume no personal liability for the deferred payments, but that the land itself should stand as security for the deferred payments. The undisputed record shows this, and that Johnson absolutely refused to accept the deed from Bestor until it was drawn so as to express the original authority which he granted to Soesbe, — that he should not be personally liable. We therefore have a simple situation by which the seller, Collentine, is seeking to hold a man with whom he never made any contract whatever, whom he never heard of in connection with the deal, who he never dreamed was in existence, to a personal liability to pay a debt which the other man never agreed to pay, and which he positively and unequivocally prohibited his agent from contracting in his behalf. I am willing to go the one step, and hold that a seller may recover against an undisclosed principal, even though he did not have a direct contract with him. Such a holding is unscientific, illogical, and properly recognized as "an anomaly" in the law; it is making a contract for parties without any semblance of a meeting of the minds of those parties. But we have recognized it. But when we have gone that far, I think we should stop; and I cannot see how we can hold this undisclosed principal in a contract purporting to have been made by his agent which is directly contrary to the express authority given to the agent. Page 125 This is not a case of holding one out as an agent, because Collentine never heard of Johnson. It is not a case of estoppel; for Collentine never acted in any way on any assumption that Johnson was connected with the deal. He sold his land to Bestor, and not until after he had commenced this action did he ever dream of such a thing as that Johnson was connected with the deal in any way, — much less by contract with him. Collentine got exactly all he contracted for. He sold his land to Bestor, and got his down payment and a mortgage back. If Bestor was insolvent, that was Collentine's lookout when he traded with him; and, if Soesbe deceived him about Bestor's financial situation, it may render Soesbe liable to Collentine for his false representations, but it does not bind Johnson, who knew nothing of these representations. The result of the opinion is that we are making for Collentine a contract with a party he never heard of, and with whom he never attempted to make a contract at all, and, in addition, we are making a contract that was never authorized. We are binding Johnson to terms which his agent had no authority whatever to make, but which are in direct and positive violation of his absolute instructions. I cannot bring myself to believe that we have a right to make a contract for parties who never made it between themselves, and, in addition to that, make the contract in direct and positive violation of the understanding and agreement of one of the parties thereto. This is more than a court of equity would do by way of reformation under its plenary power. In addition to all of this, the action is brought to foreclose the mortgage, and for judgment on the notes given by Bestor, and for personal judgment thereon against Johnson; and recovery was sought and allowed at the rate of interest fixed in the notes, including an allowance for attorneys' fees. There was no semblance of authority to bind Johnson to anything of this kind, but I submit that it is consistent; for, if Soesbe had a right to violate his positive instructions and bind Johnson for personal liability for the deferred payments on the purchase price, I do not see why it is not consistent to hold that Soesbe could also bind him to pay attorneys' fees. Why could he not have made it all cash, as well? If we are not to limit Johnson's liability by what he authorized Soesbe to do as his agent, why Page 126 stop at interest and attorneys' fees? I see no place to put the limit of Johnson's liability, under this holding. If he could not limit it by positive instructions to his agent, then I do not know where the bounds are to be set. Suppose, to illustrate what I have in mind, we leave Bestor out of the deal entirely. Suppose Johnson had told Soesbe to buy the land of Collentine at the agreed purchase price, on condition that he pay so much down payment, and that security be given for the balance on the land only, with no personal liability on Johnson's part therefor. Suppose that, armed with this authority, Soesbe had gone to Collentine and purchased the land under written contract, which he signed as agent for Johnson, and in that written contract, instead of following Johnson's instructions and buying the land on a down payment and security on the land for the balance, without personal liability, he had bound Johnson to be personally liable for the purchase price. Suppose Collentine had then sued Johnson on this contract, executed in his name and in his behalf by Soesbe, would we hold Johnson liable under such a contract? Certainly not. And why not? Simply because his agent exceeded his authority in making the contract, and therefore could not bind his principal to the unauthorized terms. But we are now holding that, where the principal is undisclosed, he can be bound in behalf of a third party by his agent, to terms which he never agreed to, and which he never authorized his agent to make. We started with Thurston v. Mauro, 1 G. Greene 231, recognizing that "recovery may be had from an undisclosed principal for goods sold to an agent acting within the scope of his authority." We followed the rule down to Strohmeier v. Anderson, 195 Iowa 828, but always reiterating, repeating, and emphasizing that, where the undisclosed principal is held, it must be because of the act of his agent, "acting within the scope of his authority." If we now cast this limitation to the winds, I am at a loss to know where we are to stop; and I fear that we are laying down a rule by which an undisclosed principal may be held liable for unauthorized contracts made by an agent in direct violation of instructions, when such contracts could not be enforced or upheld if they were made directly for a disclosed principal. If the plaintiff in this action has any remedy against Soesbe, *Page 127 it is not disclosed in the pleadings in this case. If he has any remedy against Johnson, it is in no way within the issues of this action to foreclose a mortgage. The doors of the law courts are still open to him for any actionable fraud, conspiracy, or deceit against any party or parties who may be liable therefor. If Johnson is liable at all, it could only be for the purchase price, and not on the Bestor notes. If he is liable as a purchaser, it can be only on the terms under which he purchased; not on some other and wholly unauthorized terms. I think a rehearing should be granted. ALBERT, J., joins in this dissent.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431488/	The case being reached for trial, and the defendant being present in court, and appearing also by counsel, such counsel made the following application to the court: "If the court please, we propose to show that the defendant is of unsound mind, and that is under Chapter 648 of the Code, Section 13905 of the 1927 Code. We propose to make that showing at this time, if the court please. And we would ask the court at this time to appoint a commission to investigate as to the mental soundness and sanity of this defendant at this time." The sections of the statute under which the foregoing application was made provide: "13905. Doubt as to sanity — procedure. If a defendant appears in any stage of the trial of a criminal prosecution, and Page 728 a reasonable doubt arises as to his sanity, further proceedings must be suspended and a trial had upon that question." "13906. Method of trial. Such trial shall be conducted in all respects, so far as may be, as the prosecution itself would be, except the defendant shall hold the burden of proof, and first offer his evidence and have the opening and closing argument." "13907. Finding of insanity — discharge or commitment. If the accused shall be found insane, no further proceedings shall be taken under the indictment until his reason is restored, and, if his discharge will endanger the public peace or safety, the court must order him committed to the department for the criminal insane at Anamosa until he becomes sane; but if found sane, the trial upon the indictment shall proceed, and the question of the then insanity of the accused cannot be raised therein." Pursuant to the defendant's application, the court appointed a commission of three reputable physicians to examine the defendant as to his sanity. Such commission later made its report in a divided opinion. Two members thereof reported their views to the effect that the defendant was insane. One member thereof reported his view that the defendant was sane. Upon receipt of such report, the court ruled that a reasonable doubt appeared as to the sanity of the defendant, and ordered that the issue be tried to a jury, pursuant to the provisions of the statute as above quoted. Upon the trial of such issue, the defendant assumed the burden of proof, and called two members of the commission as witnesses, in support of the contention of insanity. The issue was submitted to the jury under the instructions of the court, and the jury rendered a verdict of insanity, in accord with the contention of the defendant and his counsel. Pursuant to the verdict and to the provisions of Section 13907, the court committed the defendant to the department for the criminally insane at Anamosa. Such order of the court ended the proceeding, for the time being, in the district court. Thereupon the defendant appears to have discharged his counsel and to have employed new counsel. The objective of this change of counsel was to undo the insanity proceeding. The parents of the defendant likewise appeared, Page 729 by intervention, and sought to accomplish the same purpose. The intervention of the parents is predicated upon the fact that the defendant himself is a minor, 18 years of age. The defendant, by his present counsel, broadly assailed the insanity proceeding, and challenged the correctness of the instructions and the sufficiency of the evidence to establish the fact of insanity. He then contended, and now contends, that he is sane, and that he never was insane. He demanded, and now demands, that the insanity proceeding be nullified and set aside, and that the trial proceed upon the criminal charge. The trial court either ignored or denied his application or contention, and he has appealed. We are unable to discover any standing ground for him, as an appellant. If we take him at his present word, to the effect that he is, and at all times was, sane, then he was sane when he applied for the appointment of commissioners to examine into his sanity. What was done in such proceedings was so done at his request. Why should he have a right of appeal therefrom? The statute conferred upon the defendant the right to set in motion an inquiry into his sanity. Acting under advice of reputable counsel, he did demand such inquiry. The court was under statutory mandate to grant it. The proceeding was had strictly in accord with the provisions of the statute. The finding of the jury supported the claim of the defendant on that issue. Upon such finding of the jury, the court had no discretion to make any other order than that which was made. No ruling was made upon the trial which was hostile to the defendant in a legal sense. Whether the defendant has the right at all to appeal, in such a case as is here presented, we have grave doubt. If he has a technical right of appeal, it is yet a naked right, because he had no ground of complaint in the court below. The State has not moved for a dismissal of the appeal. We only hold, therefore, that no error was committed by the trial court, and its order is, accordingly, — Affirmed. MORLING, C.J., and FAVILLE, De GRAFF, ALBERT, KINDIG, WAGNER, and GRIMM, JJ., concur. *Page 730	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431558/	While the defendant-appellant, Mae J. Hammill, owned as a homestead certain real estate in Cedar Rapids, valued at "from $2000 to $3500", she authorized Charles T. Werner, the appellee on this appeal, to perform some work on, and supply materials for, the homestead, which subjected it to a mechanic's lien. Apparently the original amount of the mechanic's lien aggregated $24.51. For some reason, perhaps because of her impoverished condition, the appellant did not pay the appellee Werner the amount secured by the mechanic's lien, so, in order to obtain the funds secured by the mechanic's lien, the appellee Werner obtained a judgment against the appellant in the aggregate sum of $40.96, and foreclosed the mechanic's lien. Werner, although named in the record as a joint appellee with the sheriff of Linn county, nevertheless for convenience hereinafter will be referred to as the appellee. A day or two before the end of the period of redemption, the appellant procured the necessary money to make redemption, and delivered it to her husband, J.W. Hammill, with authority to redeem the property from the sale under the mechanic's lien proceedings. Page 316 At that time the appellant tendered to the clerk $44.55, which was the correct amount for redemption. Acting under an apparent misapprehension, a deputy in the office of the clerk of the district court of Linn county informed the appellant and her husband that she did not have a right to redeem the property. Although the fact does not clearly appear, it seems that the deputy clerk so advised the appellant and her husband, because, through inadvertence, the district court did not definitely say in its decree in the mechanic's lien foreclosure proceeding that the appellant might redeem. Consequently the appellant commenced the present proceeding: First, for the purpose of enforcing her right to redeem; and, second, to obtain a temporary writ of injunction restraining the appellee and the sheriff of Linn county from removing her from the homestead while her right to redeem was being determined. In support of the tender previously made to the clerk, the appellant now tenders the redemption money into court. This cause of action seems to have been consolidated with the original mechanic's lien proceedings. The district court allowed the appellant the temporary writ of injunction to protect her possession of the homestead. Later, and in due time, the cause came on for final hearing. Evidence was introduced by the respective parties, who appeared by their attorneys, and the district court found that the appellant was entitled to redeem upon the following condition, to wit: "If the Hammills (the appellant and her husband) will pay to the clerk of this court the sum of $250 to apply on Werner's (appellee's) attorney's fees, this sum being in addition to the $44. — (the amount necessary to redeem), within fifteen days from the entry of this order they shall have the right to redeem, the title to the property in question will then be quieted in Mae J. Hammill (the appellant) upon making such redemption." As before indicated, the appellee does not appeal, so the judgment becomes a finality against him. On the other hand, the appellant appeals only from that part of the judgment which requires her to pay the $250 attorneys' fees before she may redeem her property. There is no other question involved on this appeal. No reason is assigned for requiring the appellant to pay the $250 attorneys' fees. According to the judgment of the district court, the appellant had a right to redeem her property from the beginning. She would have done so had it not been for the ill-advised action of the deputy clerk Page 317 in refusing to accept the redemption money. Possibly the district court required the appellant to pay the $250 as attorneys' fees because the temporary writ of injunction was to be dissolved in case the appellant did not redeem. A temporary injunction issued, as before related, but it was merely collateral to the main proceedings. Moreover, the district court in its judgment did not dissolve the temporary injunction in the event the appellant redeemed. If the appellant failed to redeem, then the district court declared that the temporary injunction should be dissolved, but not otherwise. By making the redemption, the appellant, in effect, automatically would end the necessity for the temporary injunction. Such ending of the injunction would not in that event come about by an order of dissolution, but rather the ending thereof would result because the temporary injunction had served its full purpose. In Schmidt v. Meredith, 209 Iowa 621, on page 623, 228 N.W. 568, we indicated that, generally speaking, there are two classifications of damages accruing from a wrongful injunction. These, in the broader sense, are: First, the expenditures made in obtaining the dissolution thereof, including attorney fees, etc.; and, second, the loss resulting from the injunction itself. If the injunction is the sole remedy, then the costs and expenses incurred in dissolving the same may be recovered. To the same effect, see Chrisman v. Schmickle, 209 Iowa 1311, 230 N.W. 550. Under the record in the case at bar, as before stated, the injunction, in the first place, was merely collateral, and, in the second place, it, as a matter of fact, had not been dissolved. Consequently there is no basis for allowing the attorney fees on the theory that the temporary writ of injunction had been dissolved. On the other hand, equity does not demand that the appellant pay the appellee these attorneys' fees. Had the appellee accepted the money tendered by the appellant for the redemption of her property, the present litigation would have been avoided. This later litigation was instituted by the appellant solely for the purpose of saving her homestead from the wrongful appropriation thereof by the appellee. The appellant has been put to the expense of hiring her own attorneys, not to impose a wrong upon the appellee, but to prevent the appellee from imposing a wrong upon her. Equity, therefore, does not demand that the appellant pay the appellee the $250 attorneys' fees before redeeming. *Page 318 So, the judgment and decree of the district court is modified to the extent that there is removed therefrom the provision making the payment of said $250 a condition precedent to the appellant's right to redeem. She may redeem the property, within sixty days after the filing of this opinion, by paying the amount tendered, without the additional $250. Wherefore, as thus modified, the judgment and decree of the district court is affirmed. — Modified and affirmed. MITCHELL, C.J., and EVANS, ALBERT, STEVENS, ANDERSON, KINTZINGER, and DONEGAN, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431564/	The case presents only a fact question. The burden of proof is upon the plaintiffs. Fraud is not presumed. The relationship of parents and child between the grantors and the grantee does not create a presumption of fraud. It does require a critical examination of the attending circumstances. Fraud is not committed openly. It is an offense of secrecy. Direct evidence is rarely obtainable. Frequently it can be shown only by the circumstances admitted by the parties to it. Fraud may, and usually must, be proved by circumstantial evidence. The individual circumstances are usually inconclusive, and, attacked separately, may be blown away. The circumstances must ordinarily be considered together, and the force and weight to be given them are that of them in combination. The circumstances of a bona-fide transaction are ordinarily consistent with each other, and with generally recognized business methods and fair dealing, and not incredible. A fraudulent transaction naturally begets stilted, contradictory, and incredible evidence. The bona-fide transaction and the fraudulent one each has its well recognized indicia. As said inJones v. McGruder, 87 Va. 360 (12 S.E. 792, 798): "A transaction may, of itself and by itself, furnish the most satisfactory proof of fraud, so conclusive as to outweigh the answer of the defendants, and even the evidence of witnesses. The circumstances attending and following a transaction are often of such a character as not to leave even a shadow of doubt as to the real object and motive of the parties engaged in it. * * * The motives and intentions of parties can only be judged of by their actions and the nature and character of the transaction in which they are engaged. These often furnish more conclusive evidence than the most direct testimony." Though the parties concerned testify directly to the payment Page 605 of valuable consideration and good faith, but the proved circumstances make such direct testimony improbable, and either alone, or with other evidence, leads the mind to the conclusion that the consideration claimed was not paid, or that the transaction, instead of being in good faith, was in reality fraudulent, the court should disregard the direct, and accept the circumstantial. The conveyance attacked is of 110 acres, made September 14, 1923, and is claimed to have been made pursuant to agreement of sale, noted later. The farm had been owned and operated by M.B. Hartsock for a number of years, and was clear of incumbrance. M.B. Hartsock, before the conveyance, had signed notes of considerable amounts, as co-surety with one Hummer. Hummer, three days before the deed in controversy was made, had conveyed all his real estate to his two sons. The Hartsocks were expecting trouble on these obligations. The son, Ernest, the grantee, testified that he knew that his father's creditors might try to get the land. With this knowledge, the father, mother, and son went to a lawyer, and spent two hours with him. They went back home, talked the matter over, went to the lawyer's office again, and spent three hours there. Ernest testified, in auxiliary proceedings, that nothing was discussed except his father's making the deed to him, and his giving notes. The entire farm consisted of 150 acres, and was improved and occupied by the family as their home. The buildings were in the center. Forty acres surrounding the buildings, consisting of parts of two government forties, were not included in the conveyance. The 110 acres consisted of 10 acres east of the buildings, 40 acres south of the buildings, 10 acres west of the buildings, and 50 acres north of them. Ernest disclaims any knowledge of the homestead laws, and says that his parents, at the time of the agreement later referred to, told him that, whenever they got ready to sell the 40, he would have a chance to buy it. The price claimed to have been agreed upon for the 110 acres was $82.50 an acre. The plaintiffs' evidence tends to show that it was worth, in that form, $100 or $110 per acre; that the whole farm would be worth $25 to $35 more per acre. The defendants' claim is that the land was poor, and a brother of M.B. Hartsock's placed a value of $70 an acre upon it. If the plaintiffs' evidence on this subject is correct, the consideration was inadequate. The defendants' Page 606 description of the land and the value placed upon it make their claim that the son paid for it from its earnings with the rapidity which will be referred to later, even more improbable than if it were good land. The defendants' claim further is that Ernest was to have the use of the 40, and as compensation for that, was to "keep" his father, mother, sister, and two brothers. Their evidence is that the 40 was mostly pasture. Defendants claim that the father and mother wanted to keep the buildings for the 40 acres. Defendants testify that the father verbally sold the 110 acres to Ernest when he came of age, in January, 1917. Notwithstanding the character of the 40 acres, the father, after the alleged sale, spent $4,000 in building a barn, double corncrib, hog house, and chicken house on the 40. The defendants claim that the father sold to the son, not only the 110 acres, but all of his live stock and machinery. The mother, in auxiliary proceedings, testified that the sale of the personal property was some three years before Ernest became of age, and before the sale of the land. At the trial, all three testified that the personal property and the land were sold at the same time. They say that Ernest was to pay for the property as he made it from the land, $1,000 or $1,200 a year, if he could. If he could not pay that amount, he was to pay what he could. Ernest at that time had no property except a horse and buggy. Defendants testify that Ernest had previously announced that he was going to leave the home and try to buy a piece of land and equipment on his own account, as soon as he became of age; that his father and mother asked him to rent their farm, and he refused to do it, because he wanted to buy. He had not received any wages from his parents, and he testified: "I was going to different parties I thought maybe I could see, and get some money and some help." The defendants' claim is that the father was in ill health, and unable to operate the farm. Ernest went into the army on May 13, 1918, and came back August 8, 1919. It is admitted that, during his absence, the father looked after the farm, but it is claimed that Ernest authorized him to hire the help, pay the expenses, and credit Ernest with the net proceeds. Defendants testify that, during that period, the father took in from the land $4,500, from which he credited Ernest $3,000 on the purchase price, and paid him $200 cash. How much was expended for Page 607 hired help or how much work the father did is not shown. Defendants claim that in 1917 Ernest paid to his father from the earnings of the farm, $1,550. This notwithstanding the fact that not only the land was poor, but the cows which he purchased from his father had, as Ernest says, "got diseased," and he sold them, and replaced them with calves in the spring of 1918, to pay for which he borrowed $420 from his father. In 1920, Ernest claims to have paid his father $3,254.64; in 1921, $1,225; in 1922, $1,142.28; in 1923, $906.97, — leaving a balance, at the time deed was made, of $1,097.25. Ernest gave two notes at the time the deed was made, aggregating $1,087.25. M.B. Hartsock was owing one of the banks that precise amount, and turned in the notes to that bank. M.B. Hartsock did not keep a checking account in the bank, but kept his money on cashiers' checks and certificates of deposit. The bank records of cashiers' checks and certificates of deposit show that, corresponding to the dates and amounts of the claimed payments made by Ernest to his father, so far as itemized, the bank issued cashiers' checks and certificates of deposit payable to the father. There is evidence tending to show that Ernest, or his attorney, between the auxiliary proceedings and the trial, had a statement from the bank of such checks and certificates, from which defendants might have got the amounts which they claimed Ernest paid to his father. Ernest kept a checking account. After March 20, 1918, there were deposited to his checking account numerous items of the same dates and amounts as claimed payments to his father, but no corresponding checks against such deposits were drawn. The inference, therefore, is that the proceeds of the farming operations were divided equally by Ernest with his father, one half deposited to the father, on certificates or cashiers' checks, and one half to Ernest's checking account. The mother testified in the auxiliary proceedings that Ernest was renting the land on halves, though she said that it was for the three years before he became of age. Witnesses testify to declarations by the father in 1922 and 1923 that the father owned the land, and Ernest was farming it on shares. We may say here that the appellants do not argue that the testimony taken in the auxiliary proceedings is inadmissible, and on the record are not in position to do so. (The declarations of the father were not objected to.) In this connection, defendants Page 608 introduced evidence of declarations by defendants that Ernest had purchased the land. One of the witnesses said at first that what the father said was that Ernest was running the farm. A sister testified that her mother wrote her, in January, 1922, "about how well Ernest was doing. She said he had the place about all paid for, and was talking of getting married," and that the sister wrote back: "How are you all? We are fine. Where did you spend New Years? We were at home. It is pretty cold here now. Say I bet Ernest is glad he stayed at home now and took that land. He will soon have it paid for the way he works and saves. I am sure he couldn't have got a better start anywhere else. Well he surely has been a good kid and I think he deserves it if anyone ever did. Well will close." No reference is made to the prospective marriage, though the sister says that this was the first information she had about it. The sister also testified to the sale transaction, though the mother's testimony on the auxiliary was that the sister was not present. Without taking space to go into the details, we may say that the record does not impress us that the letter was written at the time it is claimed to have been written. We may say in this connection that Ernest testified to having had a book account with his father, and that, when the deed was made, he destroyed the account. The testimony at the auxiliary was that there was no writing in existence, showing the dealings in question. At the trial, Ernest produced purported accounts of such dealings, on sheets of paper ostensibly contemporaneous with the transactions. The one for the year 1917 is headed, "What I bought of Dad when I started," — an expression hardly compatible with the claim that it was an entry made at the time. It lists "land $9,075, 12 sows $240," and other items of personalty, all totaling $10,932. It proceeds: "Paid Dad $1,550, owe Dad $9,382." No items or dates of payment are given. The sheet for 1918 brings down this amount, adds an item of $420, "borrowed from Dad," and the item "amount owe Dad $9,803." For 1919, the statement is, "Dad got $3,000, borrowed from Dad $100," and various other amounts, totaling $363.14, which, added to the $9,803, makes $10,166.14. From this the $3,000 is deducted. Sheets for later years give items corresponding to the father's certificates of deposit account previously noted. We Page 609 are not impressed with the genuineness of these claimed accounts. The defendants claim that Ernest was not to pay any interest, and that the father was to pay all the taxes. There were assessed to Ernest for 1918 one horse and one vehicle, and to the father, for 1918 and 1919, all of the farm and personal property. For 1920, the personal property was assessed to "Hartsock Son." For 1921, there was assessed to Ernest "personal property consisting of one-half colt * * one-half heifer, four cows, two one-half steers," etc., and to the father was the like assessment, and all of the land. Similar assessment was made in 1922. In 1923, the land was assessed to M.B. Hartsock, and the personal property to Ernest. The defendants' explanation is that the amount owed for the personal property was credited in full in 1922, and that the assessments were made to the father because the father was to pay the taxes, and had a lien. The defendants' testimony is that, by the agreement in January, 1917, the total amount to be paid to the father was $10,932, and that the income of Ernest thenceforward was from the land. The deposits to Ernest's bank account, from none of which was payment made to the father, aggregate, according to appellees' computation (not disputed by appellants), $7,707.14. The addition of the payments claimed to have been made to the father makes more than $17,500, which, according to the defendants' evidence, Ernest must have realized as income from the property between January, 1917, and the time the deed was made, in September, 1923. During that time he was borrowing money of his father. Ernest now has all of the farm not exempt. His father has neither the non-exempt real estate nor the personal property nor their proceeds. Without pursuing the subject further, we are of the opinion that the only conclusion that can be drawn from this record is that the conveyance was voluntary, except as to the $1,087.25, and that it was made with intent to defraud creditors, and voidable at their suit. The judgment is — Affirmed. De GRAFF, C.J., and EVANS and ALBERT, JJ., concur. *Page 610	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/7247150/	1. Breach of Contract (Count I) Quantum avers that plaintiffs' breach of contract claim fails as a matter of law 239because the forbearance agreement contains an integration clause and represents the only agreement between the Trauts and Quantum. Quantum contends that because it is undisputed that two of the six monthly installment payments were made late, the Trauts were in breach of the contract. Plaintiffs rejoin that the forbearance agreement contained a cover letter that was part of the agreement which explicitly promised a modification and some forgiveness of the arrearage if the payments were made. Plaintiffs submit that they were not late on at least one of the payments in question. Under the Massachusetts parol evidence rule, extrinsic evidence cannot be admitted to alter the terms of an integrated and complete written contract where there is no ambiguity. Cambridgeport Sav. Bank v. Boersner, 413 Mass. 432, 440, 597 N.E.2d 1017 (1992). The parol evidence rule does not, however, bar introduction of extrinsic evidence that "elucidates the meaning of an ambiguous contract". Winchester Gables, Inc. v. Host Marriott Corp., 70 Mass. App. Ct. 585, 591, 875 N.E.2d 527 (2007). The purported cover letter to the forbearance agreement (which Quantum failed to mention in its memorandum) explicitly provides that, if the trial plan payments are made, the loan "will be modified" and modification documents "will be generated". While Quantum avers that the cover letter must be excluded as extrinsic evidence because the letter contradicts the terms of the forbearance agreement, plaintiffs have proffered evidence that the cover letter accompanied the agreement, creating a genuine issue of material fact as to whether it formed part of the agreement. In addition to the cover letter, plaintiffs proffer an email suggesting that Quantum approved a proposal to forgive a portion of the accrued interest due to the negative amortization of the original loan. Quantum contends that the Trauts breached the forbearance agreement by making two late payments, in February and May, 2012. The terms of the forbearance agreement contained a "no grace period" clause, requiring that each payment be made on or before the 20th of each month and providing that any late payment would allow the servicer to cancel the agreement without notice to the mortgagor. Quantum relies on Young v. Wells Fargo Bank, N.A., 109 F.Supp.3d 387, 392 (D. Mass. 2015) in its contention that the late payments constituted a material breach. In Young, the Court found that a payment made one day late under a trial payment plan constituted a material breach insofar as HAMP [Home Affordable Modification Program] program requirements mandated strict compliance with payment receipt deadlines. Id. The court made clear that the HAMP requirements were a "decisive consideration". Id. Because the trial payment plan agreement between the parties was a prerequisite to eligibility for HAMP modification and the HAMP modification requirements were not met, the late payment constituted a material breach. Id. at 392-93. Quantum and the Trauts did not execute the forbearance agreement pursuant to the HAMP program and, therefore, the consideration the Young court found "decisive" is not present here. Furthermore, the Trauts raise a genuine issue of material fact as to whether at least one of the payments was timely, pointing to a discrepancy in the records produced by Quantum and the bank records reflecting the Trauts' account. Accordingly, the Trauts have raised a genuine issue of material fact as to whether the contract was breached and Quantum is not entitled to summary judgment as a matter of law on Count I. 2402. Promissory Estoppel (Count II) Quantum contends that the Trauts' promissory estoppel claim, as an alternative to the breach of contract claim, must fail for the same reason as the breach of contract claim: the Trauts could not reasonably rely on any assurances made outside the four corners of the forbearance agreement. To prevail on a claim of promissory estoppel under Massachusetts law, a plaintiff must demonstrate that it "reasonably relied on the alleged promise to his detriment". Hall v. Horizon House Microwave, 24 Mass. App. Ct. 84, 94, 506 N.E.2d 178 (1987). Where a written contract or agreement conflicts with a prior oral representation, reliance on the oral representation is generally held to be unreasonable. Coll v. PB Diagnostic Sys., Inc., 50 F.3d 1115, 1124 (1st Cir. 1995) (internal citation omitted). Quantum avers that the alleged reliance of the Trauts on the cover letter to the forbearance agreement was unreasonable because the forbearance agreement contradicted the terms of the letter. The Trauts do not purport to rely on prior oral representations made during a negotiation process, however, instead choosing to rely on a cover letter that they contend was sent with the written agreement. For the reasons set forth above, Quantum is not entitled to summary judgment on Count II. 3. Chapter 93A Claim (Count V) Quantum asserts that it is entitled to summary judgment on the Trauts' M.G.L. c. 93A claims because the Trauts' demand letter was insufficient and the plaintiffs admitted in a deposition that the dispute surrounding insurance payments on the residence had been resolved. Prior to bringing suit under Chapter 93A under Massachusetts law, a plaintiff must send the defendant a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered. M.G.L. c. 93A, § 9(3). "The statutory notice requirement is not merely a procedural nicety, but rather, a prerequisite to suit". Rodi v. S. New Eng. Sch. of Law, 389 F.3d 5, 19 (1st Cir. 2004) (internal citation omitted). The purpose of the demand letter is to put the defendant on notice and to encourage negotiation and settlement. Spring v. Geriatric Auth. of Holyoke, 394 Mass. 274, 288, 475 N.E.2d 727 (1985). Quantum's contention that the demand letter was insufficient as a matter of law to maintain a claim under Chapter 93A is without merit. The Trauts identify the amount that they claim was not properly credited under the forbearance agreement ($36,000) and Quantum, as the prior loan servicer, had information about the value of the home that would put it on notice with respect to the damages the Trauts could reasonably expect to recover. See e.g., Brandt v. Olympic Constr. Inc., 16 Mass. App. 913, 915, 449 N.E.2d 1231 (1983) (holding that a demand letter was sufficient where the compensation recoverable as a result of the injury complained of was apparent from the facts alleged). The demand letter here was sufficient to achieve the dual purposes of the notice requirement, encouraging negotiation through notification to prospective defendants and limiting the amount of damages in a meaningful way. See Spring v. Geriatric Auth. of Holyoke, 394 Mass. 274, 288, 475 N.E.2d 727 (1985). Quantum notes that plaintiffs have not met their burden to show that Quantum violated Chapter 93A by causing the Trauts emotional distress. See e.g., Young, 109 F.Supp.3d at 396 (citing 241Rule v. Fort Dodge Animal Health, Inc., 607 F.3d 250, 255 (1st Cir. 2010) ) (noting that under Massachusetts law, a plaintiff must prove all of the elements of intentional infliction of emotional distress in order to prevail on a Chapter 93A claim for emotional damages). Plaintiffs have not produced any affirmative evidence of an intentional infliction of emotional distress nor do they contest Quantum's denial thereof. To defeat a motion for summary judgment, the non-moving party must "establish the existence of a factual controversy that is both genuine and material". Lohnes v. Level 3 Communs., Inc., 272 F.3d 49, 52 (1st Cir. 2001). To the extent that plaintiffs are seeking damages for emotional distress related to the foreclosure of their home, they have not met that burden and Quantum's motion will be allowed but plaintiffs may pursue their Chapter 93A claim for economic injury. 4. Negligent Misrepresentation and Fair Debt Collection Practices Act (Counts III or IV) In its opposition memorandum, plaintiffs state that Quantum has not moved for summary judgment on Counts III or IV and that, therefore, Quantum is not entitled to summary judgment on those claims. The Court notes that the parties stipulated in January, 2016 to dismiss Counts III and IV as to Quantum and that, therefore, those claims are no longer pending. C. Rushmore and the Trust's Motion for Summary Judgment 1. Contract Claims (Counts I and II) Rushmore and the Trust move for summary judgment on Counts I and II on the grounds that neither defendant was a party to the forbearance agreement and successors and assigns were not bound by the agreement. In their opposition memorandum, the Trauts stipulate that Rushmore and the Trust are not successors to the forbearance agreement and plaintiffs do not oppose summary judgment on Counts I and II. Accordingly, the motion for summary judgment is allowed as to Counts I and II. 2. Fair Debt Collection Practices Act (Count IV) Rushmore contends that the Trauts cannot make out a claim under the FDCPA because they have not produced evidence that Rushmore falsely stated that the loan was delinquent or that Rushmore misstated the amount due. Plaintiffs respond by stating that Rushmore attempted to collect on an incorrect outstanding balance because the previous servicer, Quantum, failed to honor the agreement to forgive accrued arrearages and enter into a loan modification. The FDCPA prohibits a debt collector from "using any false, deceptive, or misleading representation of means" in connection with the collection of an outstanding debt. Schaefer v. ARM Receivable Mgmt., No. 09-11666, 2011 WL 2847768, at 3 (D. Mass. July 19, 2011) (citing 15 U.S.C. § 1692e ). To recover under the FDCPA, a plaintiff must show that he has (1) been the object of collection activity arising from consumer debt, (2) the defendant is a debt collector as defined by the FDCPA and (3) the defendant has engaged in an act or omission prohibited by the FDCPA. Nath v. Select Portfolio Serv., Inc., No. 15-cv-8183, 2017 WL 782914, at 11 (S.D.N.Y. Feb. 28, 2017). Rushmore has produced evidence that it contacted the Trauts regarding the total amount of debt reflected in its records that it had obtained from the prior servicer. Rushmore's attempt to collect the Trauts' debt was permissible under the FDCPA. The Trauts' claim that Rushmore violated the FDCPA relies on the alleged conduct of a separate defendant, Quantum, and its alleged failure to honor the terms of the forbearance agreement. 242The Trauts have not produced affirmative evidence sufficient to suggest that Rushmore engaged in deceptive or misleading debt collection practices and, accordingly, Rushmore is entitled to summary judgment on Count IV. 3. Chapter 93A Rushmore and the Trust contend that the Trauts have not made out a Chapter 93A claim because (1) they were not successors to the purported agreement between Quantum and the Trauts and (2) they did not engage in unfair or deceptive practices in their attempt to collect the outstanding debt. As discussed above, plaintiffs do not dispute that Rushmore and the Trust are not liable under the contract claims. As discussed in reference to plaintiffs' FDCPA claim, the Trauts have not produced evidence suggesting that Rushmore or the Trust engaged in deceptive or unfair trade practices but instead attempt to attribute the alleged misconduct of Quantum to the successor servicers. Accordingly, the motion for summary judgment is allowed as to Count V. ORDER For the foregoing reasons, Quantum's motion for summary judgment (Docket No. 119) is DENIED and Rushmore and the Trust's motion for summary judgment (Docket No. 124) is ALLOWED. So ordered.	01-03-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/3212203/	Opinion issued June 9, 2016 In The Court of Appeals For The First District of Texas ———————————— NO. 01-16-00015-CV ——————————— IN THE MATTER OF S.G.R. On Appeal from the 315th District Court Harris County, Texas Trial Court Case No. 2014-05875J OPINION The juvenile court waived its jurisdiction over S.G.R., a minor, and transferred him to the criminal district court to be tried as an adult for the offense of murder. S.G.R. contends that the juvenile court erred in doing so. We affirm. Background Fourteen-year-old Jose Meraz was a prospective member of the criminal street gang MS-13 who no longer wished to join. His change of heart cost him his life. Several members of the gang murdered Jose for his forsaken allegiance. In the ensuing investigation, S.G.R., another fourteen-year-old prospect, confessed to his participation in the murder to law enforcement officers. He and at least two members of MS-13, including one of his older brothers, slew Jose with a machete. Together they inflicted 46 separate injuries to Jose’s head, face, neck, back, arms, hands, and legs. S.G.R. admitted that he struck Jose multiple times. The State initially filed a petition to adjudicate S.G.R. a juvenile delinquent, but it subsequently moved that the juvenile court waive its jurisdiction and transfer S.G.R. to the criminal district court to stand trial as an adult. After a transfer hearing during which the juvenile court received documentary evidence and heard testimony from three of the law enforcement officers who investigated the murder, two psychologists who examined S.G.R., and several other fact witnesses, the court entered an order finding that the seriousness of the alleged crime and S.G.R.’s background required that he be transferred to the criminal district court for prosecution as an adult. S.G.R. appeals the juvenile court’s order waiving its jurisdiction and transferring him. See TEX. FAM. CODE § 56.01 (West Supp. 2015). 2 Juvenile Court’s Waiver of Jurisdiction S.G.R. contends that the juvenile court’s decision to waive its jurisdiction and transfer him to the criminal district court to be tried as an adult must be reversed for two independent reasons. First, he argues that there is no evidence in the record that the State filed and served him with a motion to waive juvenile jurisdiction and that both are required in order for a juvenile court to consider transfer. Second, he argues that the evidence is legally and factually insufficient to sustain the juvenile court’s stated findings supporting its order to transfer him to the criminal district court. A. Criteria for waiver of juvenile jurisdiction Children ordinarily are not subject to criminal proceedings like adults. Instead, juvenile courts have exclusive original jurisdiction over cases involving what otherwise would be criminal conduct by children 10 years of age or older and under 17 years of age. TEX. FAM. CODE §§ 51.02(2)(a), 51.03(a)(1), 51.04(a) (West Supp. 2015). But if a juvenile court determines that certain conditions are met after an evidentiary hearing, it may waive its jurisdiction and transfer a child to the district court for criminal proceedings. TEX. FAM. CODE § 54.02(a), (c) (West 2014). The State initiates this process by requesting such a hearing and providing notice. Id. § 54.02(b). To transfer a child who is alleged to have committed a felony of the first degree, like murder, to the criminal district court, a juvenile court must find that 3 (1) the child was 14 or older at the time of the alleged offense; (2) there is probable cause to believe the child committed the offense; and (3) the seriousness of the alleged offense or the background of the child requires criminal rather than juvenile proceedings. Id. § 54.02(a). In deciding whether the preponderance of the evidence satisfies this last requirement, the juvenile court must consider four non-exclusive factors: (1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person; (2) the sophistication and maturity of the child; (3) the record and previous history of the child; and (4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court. Id. § 54.02(f). All four of the Section 54.02(f) criteria need not weigh in favor of transfer in order for a juvenile court to waive its jurisdiction. Moon v. State, 451 S.W.3d 28, 47 (Tex. Crim. App. 2014). Any combination of these criteria may suffice. Id. at 47 n.78. If it decides to waive its jurisdiction based on its consideration of these factors, the juvenile court must enter a written order in which it states specifically its reasons for waiver and its findings. TEX. FAM. CODE § 54.02(h) (West 2014). 4 B. Appellate review of juvenile court’s waiver On appeal, we first review the legal and factual sufficiency of the evidence relating to the juvenile court’s specific findings of fact regarding the four factors stated in Section 54.02(f). Moon, 451 S.W.3d at 47. When reviewing the legal sufficiency of the evidence, we credit the proof favorable to the findings and disregard contrary proof unless a reasonable factfinder could not reject it. Moon v. State, 410 S.W.3d 366, 371 (Tex. App.—Houston [1st Dist.] 2013), aff’d, 451 S.W.3d 28 (Tex. Crim. App. 2014). If there is more than a scintilla of evidence supporting a finding, then the proof is legally sufficient. Id. When reviewing the factual sufficiency of the evidence, we consider all of the proof presented to determine if the juvenile court’s findings are so against the great weight and preponderance of the proof as to be clearly wrong and unjust. Id. But our review of the sufficiency of the evidence supporting waiver is limited to the facts the juvenile court expressly relied on in its transfer order. Moon, 451 S.W.3d at 50. If the findings of the juvenile court are supported by legally and factually sufficient proof, then we review the ultimate waiver decision under an abuse of discretion standard. Moon, 451 S.W.3d at 47. As with any decision that lies within the discretion of the trial court, the salient question is not whether we might have decided the issue differently. Id. at 49. Instead, we consider in light of our review of the sufficiency of the evidence whether the juvenile court’s decision represents a 5 reasonably principled application of the Section 54.02(f) factors or was essentially arbitrary or made without reference to the statutory criteria for waiver. Id. at 47. So long as the juvenile court correctly applies these statutory criteria and complies with the requirement to specifically state its supporting findings, its waiver decision generally will pass muster under this standard of review. Id. at 49. C. The record shows that the State requested waiver of juvenile jurisdiction and the juvenile court therefore had jurisdiction to consider transfer. Citing Section 54.02(b) of the Texas Family Code, S.G.R. contends that the juvenile court’s order waiving its jurisdiction and transferring him to the criminal district court must be reversed because there is no evidence in the record that the State filed and served him with a motion to transfer. See Allen v. State, 657 S.W.2d 815, 816 (Tex. App.—Houston [1st Dist.] 1982, pet. dism’d) (failure to comply with Section 54.02(b)’s petition and notice requirements deprives juvenile court of jurisdiction to consider transfer). But the State’s amended petition, in which it requested that the juvenile court waive its original jurisdiction and transfer S.G.R. to criminal court, is in the record. The juvenile court’s order waiving jurisdiction also recites that the State satisfied the statutory requirements regarding service of the petition and notice. The summonses served on S.G.R. and his mother and the returns of service are in the record and were introduced into evidence at the waiver hearing without objection. These summonses indicate that they were accompanied by the petition and identify the purpose of the hearing as “considering waiver of jurisdiction 6 over and discretionary transfer to criminal district court.” Thus, the evidence is sufficient to demonstrate that the State satisfied Section 54.02(b)’s petition and notice requirements and that the juvenile court therefore had jurisdiction to consider S.G.R.’s transfer to the district court for criminal proceedings. See State v. C.J.F., 183 S.W.3d 841, 851 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (jurisdiction over juvenile exists if record affirmatively shows satisfaction of statutory service and notice requirements); see, e.g., Adams v. State, 180 S.W.3d 386, 397–98 (Tex. App.—Corpus Christi 2005, no pet.) (juvenile court had jurisdiction to transfer where record showed proof of service of summons and petition). We overrule S.G.R.’s first issue. D. The juvenile court did not abuse its discretion by waiving its jurisdiction. 1. The proof is legally and factually sufficient to support the juvenile court’s specifically stated Section 54.02(f) findings. S.G.R. stipulated to his date of birth and confessed to his participation in the murder. Thus, the dispositive issue before the juvenile court was whether the seriousness of the offense or S.G.R.’s background required criminal proceedings instead of juvenile proceedings. See TEX. FAM. CODE § 54.02(a). The juvenile court found that waiver of its jurisdiction was necessary due to both the seriousness of the offense and S.G.R.’s background. In support of this determination, the juvenile court 7 stated specific findings of fact relating to each of the four factors set forth in Section 54.02(f). a. Offense against the person The juvenile court found that, as an offense against the person, murder favored waiver of its jurisdiction. It further found that the circumstances of this particular murder were especially egregious and aggravated. In particular, the juvenile court noted that the State alleged that S.G.R. and others slew a child 14 years of age with a machete and that the victim sustained 46 different injuries, including injuries to his head, face, neck, back, arms, hands, and legs. The juvenile court also noted that S.G.R. and the others involved in the murder were associated with the MS-13 criminal street gang and that they murdered the victim because he reneged on his commitment to join it. S.G.R. does not contest that the offense—murder—is one against the person and therefore weighs in favor of the juvenile court’s waiver of jurisdiction. He instead attempts to discount the significance of this factor, arguing that waiver is not appropriate merely because the alleged offense was a serious one committed against a person. If the juvenile court simply had concluded that the offense was against a person and made no additional findings, we might agree with S.G.R. See Moon, 451 S.W.3d at 50 (juvenile court abuses its discretion if sole reason and factfinding supporting waiver is that offense was against a person). But the Court of Criminal 8 Appeals has distinguished between generic findings relating to “the category of crime alleged” and findings concerning “the specifics of the particular offense.” Id. at 48. The juvenile court focused on the latter, observing that the State alleged S.G.R. helped hack to death another 14-year-old child with a machete. The evidence included extensive testimony from the investigating law enforcement officers about S.G.R.’s participation in and the other circumstances surrounding the murder. S.G.R. concedes that the murder was “horrendous.” In other words, this case involves an offense against a person, specifically murder, but not just any murder. The juvenile court found that this case involved the brutal slaying of a 14-year-old child. There is more than a scintilla of proof supporting its determination that the circumstances of this particular murder were especially egregious and aggravated. The great weight and preponderance of the evidence is not to the contrary. The evidence therefore is legally and factually sufficient to support the juvenile court’s finding that Section 54.02(f)(1) favored waiver of its jurisdiction. b. Sophistication and maturity of the child Relying on the testimony of the State’s expert psychologist, Dr. Alexandra Tellez, the juvenile court found that S.G.R.’s sophistication and maturity weighed in favor of the waiver of its jurisdiction. The court noted that, though S.G.R. had “an average level of maturity” in general, he exhibited “an above average level of 9 criminal sophistication and dangerousness” and maturity when his participation in Jose’s murder was taken into consideration. S.G.R. argues that Tellez’s testimony is legally and factually insufficient to support waiver because “the exceptional measure of transferring a 14 year old to the criminal court should only be taken when the child exhibits a high level of sophistication and maturity not a moderate level.” The law is to the contrary—no particular finding on sophistication or maturity is required. See Moon, 451 S.W.3d at 47 (court’s waiver order need not be supported by all four Section 54.02(f) factors). But even if waiver were appropriate solely when a juvenile had more than “a moderate level” of sophistication or maturity, the court accepted Tellez’s opinion that S.G.R. does in fact have “an above average level of criminal sophistication and dangerousness” when the murder in question is taken into consideration. S.G.R. contends that this evidence remains factually insufficient because the court “completely ignores” contrary testimony offered by S.G.R.’s expert psychologist, Dr. Steven Thorn, who opined that S.G.R. possesses moderate sophistication and maturity. But the juvenile court is not required to exhaustively catalogue all evidence introduced during the transfer hearing in its written order; the statute merely requires it to specify its reasons and findings for waiver. See TEX. FAM. CODE § 54.02(h). And like any other factfinder, the juvenile court was entitled to credit Tellez’s opinion over Thorn’s. See Dashield v. State, 110 S.W.3d 111, 115 (Tex. App.— 10 Houston [1st Dist.] 2003, pet. ref’d) (trial court sitting as trier of fact is free to believe or disbelieve any part of expert’s testimony). The juvenile court found that S.G.R.’s relative sophistication and maturity weighed in waiver of his transfer for trial as an adult. There is more than a scintilla of proof supporting its determination that S.G.R.’s sophistication and maturity were above average when considered in the context of the crime committed. The great weight and preponderance of the evidence is not to the contrary. The evidence therefore is legally and factually sufficient to support the juvenile court’s finding that Section 54.02(f)(2) weighed in favor of the waiver of its jurisdiction. c. Record and previous history of the child The juvenile court also found that S.G.R.’s record and previous history weighed in favor of the waiver of its jurisdiction. Though he did not have a criminal record, the court noted that S.G.R. admitted to additional criminal activity during his interview with Dr. Tellez, including the sale of marijuana on three occasions as well as frequent possession and use of the drug. In addition, the court noted that S.G.R. is associated with the MS-13 street gang. S.G.R. contends that there is legally and factually insufficient proof to support the juvenile court’s findings because his “record and history reveal he had no prior criminal history of any kind” and that S.G.R.’s other misconduct was not serious enough to warrant transfer. While it is true that S.G.R.’s record does not reflect prior 11 delinquency or criminal proceedings, it is not true that he does not have any previous history of criminal conduct. As the juvenile court noted in its findings, S.G.R. admitted to the sale and habitual use of marijuana during his interview with Dr. Tellez. Standing alone, these criminal but non-violent activities might not support a finding in favor of waiver under this factor. But they do not stand alone. The juvenile court also relied on S.G.R.’s admitted association “with the MS-13 criminal street gang,” and the court heard substantial evidence regarding the gang and S.G.R.’s affiliation with it. A juvenile court does not err by according significant weight to evidence of affiliation with a criminal street gang in connection with a child’s record and previous history, as these gangs are by definition regularly engaged in criminal activities. See TEX. PENAL CODE § 71.01(d) (West 2011) (defining “criminal street gang”); see also In re D.J., 909 S.W.2d 621, 624 (Tex. App.—Fort Worth 1995, writ dism’d w.o.j.) (gang membership is factor that may weigh in favor of transfer for trial as adult); In re G.F.O., 874 S.W.2d 729, 732–33 (Tex. App.—Houston [1st Dist.] 1994, no writ) (affirming juvenile court’s waiver of jurisdiction in case in which evidence showed juvenile was gang member). In sum, evidence in the record supports the juvenile court’s findings of prior criminal activity and gang involvement. No evidence contradicts them. Accordingly, there is more than a scintilla of proof supporting its determination that S.G.R.’s record and previous history weighed in favor of transfer for trial as an adult, and the 12 great weight and preponderance of the evidence is not to the contrary. The evidence therefore is legally and factually sufficient to support the juvenile court’s finding that Section 54.02(f)(3) weighed in favor of the waiver of its jurisdiction. d. Protection of the public and rehabilitation of the child The juvenile court found that the juvenile justice system could not adequately protect the public or rehabilitate S.G.R. In support, it noted the “egregious and aggravated” nature of the murder and that S.G.R. is “entrenched in the MS-13 gang” with his two older brothers both holding leadership roles in the gang. The court also relied on Dr. Tellez’s opinion that S.G.R.’s “‘cruel and callous behavior’” and lack of empathy for others may indicate psychopathic features that could complicate treatment and that the brutality of the murder “‘suggests extremely negative attitudes that condone crime and violence.’” S.G.R. contends that the evidence is legally and factually insufficient to support the juvenile court’s findings regarding rehabilitation or public safety because its findings are conclusory and lack the required specificity. Regarding rehabilitation, S.G.R. argues that the record contradicts the court’s finding because Dr. Thorn opined that the juvenile justice system could provide the structure necessary to rehabilitate S.G.R. S.G.R. contends the same with respect to public safety on the basis that he could be incarcerated for up to 40 years within the juvenile justice system. S.G.R. also notes that this murder was his “first offense.” 13 The investigating law enforcement officers testified at the transfer hearing about S.G.R.’s affiliation with MS-13 and his two older brothers’ leadership roles within the gang. No proof in the record contradicts their testimony, and S.G.R. does not contend otherwise. Nor does S.G.R. dispute that Tellez offered the testimony on which the court relied in its written order. Instead, S.G.R. once again asserts that the juvenile court ought to have been persuaded by his expert’s testimony. Setting aside the court’s entitlement to accept or reject expert opinion as it saw fit, S.G.R.’s own expert, Dr. Thorn, agreed that MS-13 is a very violent gang and that his older brothers’ membership diminishes the likelihood that S.G.R. will be able to turn his back on it. Thorn did opine that S.G.R. was not a psychopath and recommended that he not be tried as an adult. But Thorn also testified that S.G.R. was not a low risk in terms of future violence and did not exhibit empathy for others. Thorn also agreed that the murder S.G.R. participated in was very violent and callous. Thus, while Thorn’s testimony was contrary to Tellez’s in some respects and his recommendation ran counter to the juvenile court’s determination that public safety and the prospects for S.G.R.’s rehabilitation weighed in favor of transfer, Thorn’s overall testimony was not incompatible with the court’s findings. The juvenile court found that transfer was warranted because the juvenile justice system could not adequately protect the public from S.G.R. or rehabilitate him. There is more than a scintilla of proof supporting its findings concerning public 14 safety and rehabilitation, and the great weight and preponderance of the evidence is not to the contrary. The evidence therefore is legally and factually sufficient to support the juvenile court’s finding that Section 54.02(f)(4) weighed in favor of the waiver of its jurisdiction. 2. The juvenile court’s decision to waive its jurisdiction represents a reasonably principled application of the Section 54.02(f) factors. The juvenile court addressed each of the factors enumerated in Section 54.02(f) and stated specific reasons and findings in support of its decision to waive its jurisdiction and transfer S.G.R. for trial as an adult. Its findings are supported by legally and factually sufficient evidence. The Court of Criminal Appeals has advised that “the juvenile court that shows its work” in this fashion “should rarely be reversed.” Moon, 451 S.W.3d at 49. This is because the juvenile court’s discretion is “at its apex when it makes this largely normative judgment” as to whether a child eligible to be tried as an adult should be transferred to the criminal court. Id. at 46. Given the juvenile court’s broad discretion and the evidence, we hold that this is not the rare case in which reversal is warranted in spite of the juvenile court’s adherence to the statutory criteria. The murder in which S.G.R. participated was savage. He and the other perpetrators inflicted dozens of wounds on the 14-year-old victim with a machete because the victim refused to join their criminal street gang. The brutal and malevolent nature of the crime alone would suffice to uphold a waiver of jurisdiction in this case. See Moon, 451 S.W.3d at 48 (proof establishing that 15 specifics of crime committed is “of a sufficiently egregious character, will justify the juvenile court’s waiver of jurisdiction regardless of what the evidence may show with respect to the child’s background and other Section 54.02(f) factors”). Given the nature of the crime and the other circumstances invoked by the juvenile court in support of the waiver of its jurisdiction, its decision to do so was not arbitrary or unprincipled. We overrule S.G.R.’s second issue. Conclusion We affirm the juvenile court’s order waiving its jurisdiction. Harvey Brown Justice Panel consists of Justices Keyes, Brown, and Huddle. 16	01-03-2023	06-11-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431653/	[1] This cause has been submitted to this court on the clerk's transcript of the record pursuant to sections 13998 and 14010, Code, 1939. Examination of the record, as shown by the clerk's transcript alone, discloses no error which would warrant or require a reversal. The clerk's transcript includes a motion for new trial, which in turn refers to the evidence in the case. Without the evidence before us we are unable to determine whether there is any merit in certain contentions there made. State v. Evans, 229 Iowa 932, 937, 295 N.W. 433. The reporter's transcript of the testimony has been certified to supply such deficiency. As pointed out in State v. Dunley, 227 Iowa 1085, 290 N.W. 41, and State v. Evans, supra, the failure of appellant to file an abstract of the evidence has forfeited his right to have the evidence reviewed by us. However, in State v. Ferguson, 233 Iowa 354,6 N.W.2d 856, 858, in a somewhat similar situation where the right to file an abstract had been lost, this court, on its own motion and without setting a precedent, examined the transcript of the testimony which had been certified to us. Such examination was made as a matter of grace, not of right. In the same spirit, we have examined the transcript of the testimony herein. Guilt of defendant is asserted by reason of an automobile accident which occurred about 8:10 p.m., September 26, 1942, at the intersection of Southeast First Street and Jackson Avenue in Des Moines, Iowa. At this intersection First Street is a through highway extending north and south. East-and-west traffic on Jackson Avenue is required to stop before entering the Page 1270 intersection. Defendant was driving an automobile south on First Street and collided with an automobile operated by Roy Garlick proceeding east on Jackson. After the collision, Garlick's car was stopped in the intersection; defendant's car had continued south over the curbing, turned over on its side, and soon caught fire and burned up. Mrs. Marie Ellen Barlow had been standing in the parking near the sidewalk at the southeast corner of the intersection, waiting for a bus. She was struck by defendant's car and was fatally injured. There are a number of sharp conflicts in the evidence. According to defendant's testimony, he was driving at a speed of twenty-five to thirty miles per hour as he approached the intersection; he saw Garlick's car approaching from the west; it seemed to slow down as though it were going to stop; defendant thought it would stop for the stop sign but it did not; defendant speeded up, swung to the left, thought he could avoid a collision but did not. He testified that he may have been traveling forty miles per hour when the crash occurred. The physical facts were such that the jury might have found that defendant's speed was more than forty miles per hour. Davidson v. Vast, 233 Iowa 534,10 N.W.2d 12. The evidence offered by the State shows that First Street is thirty-six feet wide north of Jackson and twenty-four feet wide south of Jackson, so that on the east side of First Street there is an offset of about six feet as the street narrows to the south of the intersection. The State's evidence indicated that the collision occurred not more than ten feet west of the east curbing of First Street as extended from the southeast corner of the intersection. There was also testimony that the front end of Garlick's car was approximately even with the east curb of First Street, as it extends south of the intersection, when the impact occurred. Defendant's car was shown to have turned completely around so that it came to rest on its side headed practically due north with its front end about forty-four feet from the curbing at the southeast corner of the intersection. Mr. Barlow, who had been standing beside his wife, and Mr. and Mrs. Garlick all testified that Garlick's car came to a complete stop at the stop sign about twenty-four feet west of the intersection and then proceeded in low gear at about five miles per hour until the impact occurred. Page 1271 Defendant did not claim to have sounded his horn or to have given any warning. Mr. and Mrs. Garlick and Mr. and Mrs. Barlow are shown to have been unaware of defendant's approaching car until a collision was imminent. Defendant did not apply his brakes; instead he speeded up, swerved to the left, then, seeing the offset which narrowed the street, swung back to the right as the collision occurred. There was evidence that the speed limit was twenty-five miles per hour at this intersection. There was other evidence, of course, but the foregoing summary presents the high lights from which the general situation may be understood. Defendant made no motion for a directed verdict and we do not find any assertion in the motion for new trial which might be interpreted as challenging the sufficiency of the evidence to present a jury question as to defendant's guilt. [2] I. The motion for new trial asserts that the court erred in requiring defendant and the witness Bledsoe, who testified that he was riding with defendant at the time of the collision, to state on cross-examination the number of times each had been convicted of felonies. On direct examination defendant testified that he had been convicted of a felony. On cross-examination the State inquired concerning the number of convictions. Strenuous objections were made. At first the objections were sustained. Later, when the question was again put, the objections were overruled and defendant testified, "four times." Bledsoe, on direct examination, testified that he had been convicted of a felony. On cross-examination, objection being overruled, he testified, "twice." The testimony was properly admitted. Section 11270, Code, 1939, provides: "A witness may be interrogated as to his previous conviction for a felony." In State v. Williams, 197 Iowa 813, 819, 197 N.W. 991, 994, the defendant was asked if he had been convicted of a felony and he said that he had. He was then asked how many times. In affirming the conviction, we state: "The State had a right to show, for the purpose of affecting his credibility, that he had been so convicted, and how many times * * ." Page 1272 As far as we have been able to discover, this appears to be the only decision of this court passing upon this precise question. We adhere to the position thus taken. [3] II. The motion for new trial challenges the instructions as not submitting defendant's theory of the case. Defendant contends that, under the evidence submitted by him, the jury was warranted in finding that an emergency was created by Garlick's failure to stop before entering the intersection, that defendant had a right to rely on his right of way and on Garlick's duty to maintain proper lookout and yield such right of way, and that the failure of the court to specifically cover such matters in its instructions led the jury to believe that they did not enter into the matter for consideration. We find no merit in the contention. Instruction 3 advised the jury that defendant was charged with involuntary manslaughter and defined it as "the unintentional killing of a human being by another person while such other person is in the performance of a lawful act, by performing the same in such a manner as to show a wanton and reckless disregard and indifference for the lives or safety of other persons who might reasonably be expected to be injured thereby." In instruction 4, the court defined criminal negligence as follows: "Negligence, to become criminal, must be reckless and wanton and of such a character as shows an utter disregard of the safety of others who might reasonably be expected under the circumstances to be injured thereby." Instruction 6 advised the jury that, before they could convict, the State was required to prove beyond a reasonable doubt that defendant was guilty of criminal negligence which was the proximate cause of Mrs. Barlow's death. Instruction 7 advised the jury in two places that, for defendant to be guilty of criminal negligence, it was necessary to find that he acted "in such a manner as to show a wanton and reckless disregard for the safety of other persons whom he in reason ought to have known might be affected thereby." Instruction 11 advised the jury that negligence of Garlick would not "relieve the defendant of criminal responsibility if the death of said deceased was naturally and proximately caused by the doing by the defendant of an unlawful act or acts as hereinbefore defined, in such a manner as to show a wanton and reckless disregard and indifference to the safety of others who might be reasonably Page 1273 expected to be injured thereby." The instructions given, in the absence of specific request, adequately advised the jury of the law applicable herein. State v. Graff, 228 Iowa 159, 290 N.W. 97, and cases cited therein. [4] III. The motion for new trial complains of the fact that the policeman, Anderson, was permitted to read his testimony before the grand jury. Anderson had testified that defendant made certain admissions to him at the scene of the collision. On cross-examination, counsel sought to discredit his testimony by reason of his not having so testified before the grand jury. On redirect examination the minutes of his testimony were read, over objection. The court promptly admonished the jury not to consider any part of the minutes except that which related to conversations with defendant. Motion was made to strike all other parts thereof and was sustained with a reiteration of the court's admonition. Later defendant offered Anderson's notes of his investigation in their entirety. While the evidence as originally introduced was largely inadmissible, nevertheless, in view of the court's admonitions, the ruling on the motion to strike, the subsequent introduction by defendant of the officer's complete report of his investigation, and the fact that all matters, which may have been hearsay, were shown by competent evidence, we are unable to find such prejudice as would warrant or require a reversal herein. Ceretti v. Des Moines Ry. Co., 228 Iowa 548,551, 293 N.W. 45; State v. Rozeboom, 145 Iowa 620, 624,124 N.W. 783, 785, 29 L.R.A., N.S., 37. [5] IV. Exception is taken to the court's definition of criminal negligence. The complaint is that, in addition to the elements of wanton and reckless disregard and indifference for the lives and safety of others, there should have been added proof of no care. We think that the definition given was sufficient. State v. Graff, supra. Other matters presented by the motion for new trial do not appear to require elaboration. We have carefully examined the record. We find nothing which would warrant or require a reversal. The judgment is — Affirmed. All JUSTICES concur. Page 1274	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431654/	The plaintiff-employee sustained an injury to his right index finger. In the treatment of the injury in the Page 791 first instance, amputation was made at the first joint, the distal phalange being removed. The original injury extended to some extent beyond the first joint. The amputation at the first joint proved insufficient, and a second operation was had, whereby the head of the second phalange was removed. The injury under treatment extended deeper on the inside of the finger than on the outside. The cutting into the bone was deeper on the inside than on the outside. In other words, the second operation took an oblique course. The testimony of the physicians describes the second phalange as one inch in length. The dimensions of that part of the bone removed from the second phalange are estimated at about 1/16 or 1/8 of an inch on the outside, and 3/16 to 1/4 of an inch on the inside. The one question presented for our consideration is whether the removal of such a limited portion of the second phalange is compensable under Paragraph 6 of Section 1396, Code of 1927, as for the loss of half a finger, or under Paragraph 7 of the same section, as for the loss of the entire finger. The plaintiff contends that he is entitled to recover as for the loss of the entire finger, under Paragraph 7, and the commissioner awarded compensation accordingly; whereas the defendant contends that award should be made under Paragraph 6, and not otherwise. Paragraphs 6 and 7, Section 1396, are as follows: "6. The loss of the first or distal phalange of the thumb or of any finger shall equal the loss of one half of such thumb or finger and compensation shall be one half of the time for the loss of such thumb or finger. "7. The loss of more than one phalange shall equal the loss of the entire finger or thumb." The argument for the defendant, as appellant, is that Paragraph 7, above quoted, applies only when the employee sustains the loss of a substantial portion of the second phalange, and that the extent of amputation of the second phalange in this case did not amount to a substantial portion, within the meaning of the statute. Reliance is had upon our holding in Brugioni v. SaylorCoal Co., 198 Iowa 135. It is argued that we held definitely, in the cited case, in support of defendant's present contention. On the other hand, the plaintiff also relies upon the Brugioni case, Page 792 and urges that it holds against the position taken by the appellant. The terms of Paragraphs 6 and 7 are quite simple, and were intended to be such. Paragraph 6 provides that the loss of the first phalange "shall equal the loss of one half of such thumb or finger." Paragraph 7 provides: "The loss of more than onephalange shall equal the loss of the entire finger." In theBrugioni case, we held that a loss in excess of the first phalange was a loss of more than one phalange, even though it were less than the loss of two phalanges. In that case, encroachment had been made upon the second phalange to the extent of 1/8 to 1/4 of an inch. We held that such loss was more than one phalange, within the meaning of Paragraph 7. We did not in that holding purport to qualify the language of the statute by comparative terms. Our discussion was strictly responsive to the arguments of opposing counsel, and refrained from any pronouncement beyond the scope of such argument. The opinion discloses the respective attitudes in argument of opposing counsel. The argument for the employer was that Paragraph 7 came into operation only when substantially all of the second phalange had been lost. On the other hand, the argument for the employee was that such paragraph came into operation upon the loss of asubstantial portion of the second phalange. The word "substantial" was of the mutual adoption of opposing counsel, and it answered the purpose of their argument. The word was not of our choosing, nor did we make any pronouncement thereon as a qualifying word. We held that it was not essential to the operation of Paragraph 7 that substantially all of the second phalange should be lost. This rejected the employer's contention. We also sustained the contention of the employee that the loss of a substantial portion of the second phalange was enough to bring into operation Paragraph 7. This was the full contention for the employee. We had no occasion to consider whether the employee could have contended for a more liberal interpretation. That the loss of 1/8 to 1/4 of an inch of the second phalange was the loss of a substantial portion thereof was not challenged in that case. Upon that state of the argument, we held, impliedly at least, that the loss of 1/8 to 1/4 of an inch was the loss of a substantial portion. Whether this paragraph should be qualified by the term "substantial" Page 793 was not before us, nor was any pronouncement volunteered thereon. We said: "To put the dispute in still another form, and to indicate the nearest approach of the contending parties, the plaintiff concedes that the loss of a slight portion of the second phalange might not bring the case within the operation of Paragraph 7; but he contends that the loss of any substantial portion of the second phalange does bring the same within the seventh paragraph. On the other hand, the defendant concedes that the loss of the second phalange need not be absolutely complete, in order to bring the case within the operation of Paragraph 7; but it contends that the loss must extend to substantially all of such phalange. So the plaintiff declares for a substantial portion as the criterion; and the defendant for substantially all." It will be noted that the litigants adopted the word "substantial" as common ground in that case. We said further: "The very purpose of the Workmen's Compensation Act is to fix definite rules for the measuring of compensation for specific injuries. To that end, it is essential that simple words be simply construed, and that definite terms be not opened up to indefinite construction. The statute is always subject to amendment by the legislature. It is important that it be not amended by judicial construction. We sustain the construction contended for by the plaintiff, as being the simpler and more natural construction of the terms used." In the case at bar, the question is squarely presented whether Paragraph 7 should be opened up to qualifying terms. The word "substantial" is a flexible word. It is essentially indefinite, and implies variation and degree. If we read it into the statute, do we thereby render the statute more understandable? Do we simplify it thereby? Do we render the statute narrower or broader? The statute was intended to be definite. It draws definite lines. A line is necessarily arbitrary. These lines are drawn for the specific guidance of the industrial commissioner. Its classifications do not purport to be subject to the discretion of the commissioner. It may be true that the loss to the second phalange may, in a given case, be so infinitesimal as to be no loss at all. That is not the question here. Are we to open up the Page 794 definite statement of Paragraph 7 to a roving definition of what constitutes a "substantial portion" of the second phalange? We are of opinion that to qualify Paragraph 7 in the manner indicated is to impair it, and is to confer upon the commissioner a burdensome discretion not contemplated by the Compensation Act. It is our conclusion that the injury under consideration came under the provisions of Paragraph 7, and that the commissioner ruled properly thereon. Such was the judgment of the district court, and its order is — Affirmed. ALBERT, C.J., and KINDIG, WAGNER, and GRIMM, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431657/	Decedent was a maiden lady, apparently of advanced years, who had been living alone in a large house, and looking after her real property, the extent and character of which do not appear. Claimant, an unmarried English woman, then 30 1. WORK AND years old, a dressmaker, came to the United LABOR: States, got acquainted with decedent, and services in commenced working for her late in 1913. Claimant family: testifies, in substance, that the house evidence: contained 17 rooms, besides porches, halls, sufficiency. closets, large basement, and attic; that decedent occasionally had visitors, and entertained. Claimant says that she (claimant) did all of the work, house cleaning and window cleaning, cooking, laundry, furnace work, and handled 16 to 20 tons of coal during the winter; that she did the garden work, canning, and sewing, and also nursed decedent in her illnesses, of which there were a number. Claimant says she accompanied decedent to social affairs, and did the work for her entertaining at home, in all of which she had little help. The testimony also tends to show that claimant was a companion to decedent, and served her in the capacities named to the time of her death. There were no other Page 517 occupants of the house, except a 9-year-old niece of claimant's, who came there from England November 6, 1923, was received into the home as a member of the family, and became known as Mary Louise Newson. Claimant says that she took entire care of the child, and made her clothing. There is evidence tending to show that claimant assisted in looking after decedent's property to some extent, including the collection of rents and paying them to decedent. Claimant received, the first year, $16 a month, and after that, $20 a month to February 1, 1925. The executor allowed claimant $220 for services from February 1, 1925, to date of decedent's death. On November 17, 1924, decedent made to the order of claimant, and claimant indorsed, a check for $88.25, bearing on its face, "in full to December 1, 1924." Claimant says that part of this check was for groceries that she paid for in cash. There is testimony that plaintiff's services were worth $100 per month. A copy of a will by decedent, dated January 4, 1923, contains this item: "I give, devise and bequeath in the event only that she survives me and remain with me unto Anna Tweed, an English woman who has lived with me for many years, the sum of $5,000." In her filed claim (so far as material), claimant sets out her employment by decedent and the work she performed, and says that, after she entered decedent's employ, decedent orally agreed with her that, if she would remain with decedent and render services of the character related until decedent's death, in addition to the sums paid from time to time to apply on compensation, decedent would provide for claimant sufficient additional amount to liberally and fairly compensate claimant for all such services, and decedent agreed to make out of her estate such provision for claimant as would make claimant financially independent. Claimant alleges that decedent did execute a will providing for a legacy of $5,000, and exhibited to her a copy of it, and that, in addition, decedent assured claimant that claimant would receive real estate of value sufficient, with the $5,000 and the sums paid, to give claimant such fair and liberal compensation. Claimant alleges that she relied upon such assurances and upon the will, and by reason thereof continued in decedent's employ, receiving only a small part of the reasonable value of Page 518 her services; that, in violation of her agreement, decedent executed another will, making no provision for claimant, which has been admitted to probate. Claimant alleges that the reasonable value of her services in excess of the sums received is at least $9,281.61, and that, if decedent had performed her agreement, claimant would have received at least that amount. The executor's principal contentions are that evidence is insufficient to show the existence of any agreement for compensation other than that which has been paid and allowed; that the evidence shows that claimant has been allowed full compensation; that claimant was incompetent as a witness to testify to conversations which she claims to have overheard between decedent and others, particularly with Mr. Cook; and that her testimony thereto should not have been received. I. It is agreement to, and mutual understanding of, the existence of an obligation assumed by one of the parties to the other, that, for the purpose of the point now about to be considered, is the essential element of a contract. Usually agreement is arrived at by means of a proposal or offer, express or implied, from one side, expressly or impliedly accepted on the other. But formality in proposing and accepting is not required. There must be an intention to assume legal liability, as distinguished from a mere ebullition of emotion or expression of intention to do an act of generosity. A promissory expression without intention to contract is not sufficient. 1 Page on Contracts (1st Ed.), Section 22 et seq.; 13 Corpus Juris 263 etseq.; 6 Ruling Case Law 585 et seq. The existence of the mutual understanding, the proposal and acceptance, may be implied from conduct and circumstances. These may be shown by circumstantial evidence, or by the admission of the party to be charged. Ball v.James, 176 Iowa 647, 655; Hankins v. Young, 174 Iowa 383, 392;Spicer v. Administrator of Estate of Spicer, 201 Iowa 99, 101;Ridler v. Ridler, 93 Iowa 347; 13 Corpus Juris 767, 768; Franklinv. Tuckerman, 68 Iowa 572. Acceptance may be shown by conduct or by performance communicated to the promisor. Franklin v. Tuckerman, 68 Iowa 572;Hankins v. Young, 174 Iowa 383, 392; 6 Ruling Case Law 587, 605. The existence of a contract by which claimant was receiving a weekly or monthly wage is not inconsistent with an agreement Page 519 by which she might be entitled to receive larger or more adequate compensation if she continued in decedent's 2. CONTRACTS: employment, performing desired services, during mutuality: decedent's life. The two agreements were not nonincon inconsistent or mutually destructive. The one sistency. would not contradict the other. The two would be distinct and independent, one collateral to the other. Dixon v.Lamson, 242 Mass. 129 (136 N.E. 346). Mr. Cook, who was pastor of decedent's church from 1911 to 1914, testifies that he was called by Miss Newson: "Q. Did she say anything to you with reference to Anna, joining the church? A. She did. That is the reason she sent for me. Q. State whether or not you had a conversation with Miss Newson when Anna was present at any time. A. I had before Anna was present, and then after she was present. * * Somewheres in 1914. * * * Miss Newson called me to come over there, telling me that she had this English girl that she was taking into her home, to be one with her, and she was anxious that I should see about getting her church letter from England from the Episcopalian church there, and to explain any difference between the Methodist church and the Episcopalian church. She told me that she was taking Anna into her home as to be one with her, and that she was going to adopt her right into the home, was going to take care of her in every particular. * * * She introduced Anna to me, and told me that: `Here is my girl, that I have taken into my home to be my girl. I am going to take care of her all her life, and take her into the home, she says; that is the reason I want her in the church. I am having her in my home to be one with me, and I am going to make ample provision for Anna when I am gone. * * * She said she was there as her companion." Mr. Cook testifies, on cross-examination: "Q. Did she say she was paying her $16 a month at that time? A. No, sir. Q. She didn't say anything about that? A. Yes, she said she was giving Anna pin money. Q. She said she was going to care for her? A. For her financially, — O, that she was going to stay with her, and she was going to make ample provision for her; she would never want for anything afterwards. * * * Q. What she talked to you about was getting Miss Tweed Page 520 transferred from the Episcopal church to your church? A. It was, but she had the reason back of it." Mrs. Britcher testifies that, about nine years before the trial (which was in September, 1926): "I asked Miss Newson, or said to her, `You have Anna with you yet, — still have her with you;' and she said, `Oh, yes, she will always be with me, and she will be well rewarded for it.'" On cross-examination, this witness testifies that Miss Newson "said she was always to stay with her, and she would be well taken care of." Mrs. Patterson testifies, on cross-examination: "Q. Now you said within the last couple of years she said that Anna — that people said she was not giving Anna enough money? A. Yes. Q. Did she tell you how much she was giving her then? A. No, sir, she said she was giving her what she was giving her for spending money." This witness testifies that, about 1921, Miss Newson "said she was very tired, and I said, `What have you been doing, that you are tired?' She said she had been out to the farm, where she was fixing up a schoolhouse on the 120 acres which, she said, `I intend Anna to have some day.' * * She just said that Anna had always been good to her, and she thought she deserved that. * * * In the last couple of years, she has often told us how good Anna was to her; she always thought, she said, people had said she wasn't giving her enough money, but she said it would all be right in the end. * * * She had said she gave Anna that little house in the north part of town." Another witness, Mrs. Escher, testifies: "She told me, if Anna stayed with her as long as she lived, Anna * * * would never need to work any more; that she would be provided for when her death was, if she stayed that long. * * * She said Anna was her company, her maid and everything; that she was just like her own child to her; that they was just fine together, and she couldn't see why her and Anna couldn't get along, and she would provide for Anna when she was done with it." Page 521 Another witness, Mrs. Bleesdale, testifies: "She said she wasn't going to donate anything for the church; that what money she had she was going to give to those who had given to her. I said, `Well, you don't have any of your own relatives;' and she said, `No, I don't have any relatives that I consider relatives;' but she said, `Anna is with me, as you know;' she says, `She is really the only companion I have had in all these years;' she said, `What I have to give,' she said, `I am going to give to those that have given to me.' * * She told me that there was a lady friend of hers that had mentioned the fact that she would pay her $8 a week. I said to her, `What inducement would $8 a week be to Anna to leave me and go to work for $8 a week?' * * * I said, `Well, what did Anna think about it?' A. She said she wouldn't consider it at all. She said, `I never told Anna, because $8 a week would never do; she would never get anything out of $8 a week in any way, shape, or form like what I expect to do for her.' I said, `What have you done for her?' She said, `I have made arrangements so Anna will never have to work again,' she said. I said, `Are you sure that you have got that fixed?' She said, `Yes, I have got it all fixed.' * * * She said, `Anna has got to the age where she knows that she can never marry and have what she will have if she stays with me.'" Other witnesses testified to similar statements on the part of deceased. Claimant testifies to hearing the talk with Mrs. Patterson and other witnesses, and to taking no part in the conversations. Claimant testifies to a conversation between decedent and Mr. Munn, in which claimant says she took no part, and in which decedent said that she didn't know what she would do without claimant; "`but anyhow, I will see she is well provided for, provided she stays with me,' she said, `I will see she is well provided for for all she does for me.'" There is sufficient competent evidence to show communication by decedent to claimant of the alleged promises. That the services were worth much more than the monthly payments to claimant is but feebly contested in evidence. On cross-examination, claimant was asked: Page 522 "You thought you would receive wages during the time? A. Not wages; she never called it wages. It was part pay." Claimant was not a relative of, or under any legal or moral obligation to, decedent. She was a young woman; she had a trade; she was unmarried; she gave about twelve of her best years to decedent's service for inadequate pay, — years in which she might otherwise reasonably hope to contract a marriage and acquire a home, or to acquire a business and competency. Decedent apparently had no ties binding her to others, or others to her. No reason for offering or receiving the services in question gratuitously, in whole or in part, appears. No sufficient reason for claimant's remaining with decedent and doing the work which she undisputedly did (for inadequate pay, if such), is suggested, other than decedent's agreement to provide at her death for adequate and liberal compensation in one of the methods suggested. From the competent testimony and the circumstances, a jury would be authorized to find that it was decedent's wish, communicated to claimant, that claimant should stay with her during her lifetime and continue the services in which claimant was engaged; that claimant should stand in the relation of a companion to decedent, — a member of her home, and not a mere servant; that the sums that were being paid to claimant were understood not to be in full compensation, but were pin money, or spending money, for the time being; that, provided claimant would stay with decedent during her lifetime, and continue in the performance of the services in which claimant was engaged, decedent would make provision sufficient for claimant's care for claimant's lifetime, and such that claimant would not have to work for others after decedent's death; that decedent made these declarations, not merely as expressions of gratitude, or of good will, or of a generous purpose, but out of a sense of obligation, and with the knowledge that they might reasonably be received and accepted by claimant as obligations, and with the purpose that they should be so accepted; that decedent had made at least tentative arrangements, by means of the will and through the pieces of real property, to perform her promises; and not only that, but that she had in fact "made arrangements Page 523 [as she believed and as claimant understood] so Anna will never have to work again." Otherwise expressed, the declarations and admissions of decedent and the circumstances shown in evidence authorized the jury to find that decedent asked claimant to come into her home, to be her companion, and to perform the services which she had performed, or was performing, and thereafter performed; that decedent accepted such services; that it was not expected by either party that the services were to be gratuitous, either in whole or in part; that it was not understood that the monthly payments were to be in full payment; that decedent, on condition that claimant should remain with her as long as she lived, would make for her ample provision; that it was understood that such provision should at least equal the value of the services, and that claimant should be paid thereby in the total a sum amounting at least to such value; that claimant, relying upon the agreement, fully rendered the services requested, but has not received the value of services rendered; that, for some reason other than the fault of claimant, decedent changed her arrangements and broke her agreement. The evidence would authorize the jury to find that decedent understood that claimant had accepted her offer; that claimant did in fact, and in reliance upon decedent's promises, make full performance upon her part, to decedent's knowledge. The jury might, therefore, find the existence of the contract alleged. Cases above cited. Robinson v. Raynor, 28 N.Y. 494. Decedent's 3. WORK AND breach of such agreement entitled the claimant LABOR: to recover upon the quantum meruit. Her damages compensation are the reasonable value of her services, less through what she has received. Hankins v. Young, 174 bequest: Iowa 383; Succession of Palmer, 137 La. 190 (68 breach: So. 405); Loper v. Estate of Sheldon, 120 Wis. effect. 26 (97 N.W. 524); Martin v. Estate of Martin,108 Wis. 284 (84 N.W. 439). If not expressly agreed, it was implied that the provision to be made by will should be at least adequate to compensate claimant for the reasonable value of her services. Idem; Schmetzer v. Broegler, 92 N.J. Law 88 (105 A. 450). Technical accuracy and fullness of allegation or that degree of particularity of pleading and conformity of pleading to Page 524 4. EXECUTORS proof required in ordinary actions are not to be AND ADMINIS- expected, and are not required, of claims filed TRATORS: against estates. Newell v. Estate of Newell, 198 claims: Iowa 710; Craig v. Estate of Craig, 167 Iowa presenta- 340; 24 Corpus Juris 348. tion: liberality. allowed. II. The executor argues that the indorsed check is binding as a settlement. The indorsed check (paid) is no more than a receipt in full. It was subject to explanation, and even contradiction. Mounce v. Kurtz, 101 Iowa 192; 22 Corpus Juris 5. EVIDENCE: 1140. As has been seen, even an agreement for parol as monthly wages is not contradictory of the affecting alleged collateral agreement to pay adequate writings: compensation for remaining with decedent and receipts. continuing the services during her lifetime. Unless claimant continued to decedent's death, the agreement for further compensation would not come into operation. The oral agreement and the receipt were not contradictory. Dixon v.Lamson, 242 Mass. 129 (136 N.E. 346). III. The executor urges that the alleged agreement must be proven by clear, satisfactory, and convincing 6. EXECUTORS evidence. The caseis not in equity, and not AND ADMINIS- triable here de novo. It is at law, was tried to TRATORS: a jury, and the question was for the jury to claims: determine, upon the preponderance of the proof: evidence. In re Estate of Dolmage, 204 Iowa 231. sufficiency. IV. Claimant testified to overhearing a conversation between Mr. Cook and decedent, substantially as testified to by Mr. Cook, but further: "She told Mr. Cook that I had promised to stay with her * * and that, `Provided she does,' she said, `I will see she is well cared for in the end.' * * " Claimant testified that she did not take part in this conversation; and it was on that statement, and 7. WITNESSES: in response to questions in which she was asked competency: to state the substance of the conversations in transaction which she took no part, that the court received with her testimony. In one of her answers on decedent: examination by her counsel, claimant testified: personal communica- tion. "Mr. Cook came to the house, and she called me in to meet Page 525 him and visit with him; then she began to tell that she was so pleased that she had me; that I was a companion to her, and I had promised to stay with her, and said, `Anna said that she will stay with me.'" On cross-examination, claimant testifies: "Miss Newson wanted me to give up my denomination and join hers, and I did. Q. She was talking to you about that during this time, was she? A. Yes. Q. You talked about staying there with her, did you? A. Yes." After this, the executor moved to strike out claimant's testimony as to the conversation with Cook, on the ground that it then appeared that the statements were made in a conversation in which the three of them were taking part, and that the witness was incompetent, under Section 11257, Code of 1924. This was overruled. The motion should have been sustained. Hart v. Hart,181 Iowa 527; Secor v. Siver, 188 Iowa 1126, 1131; Crist v.Tallman, 190 Iowa 1248. What claimant intended to say doubtless was that she did not take part in such of the conversation between decedent and Mr. Cook as immediately related to her personal affairs with decedent. But it appears that claimant was a party to the conversation. The communication had special reference to claimant, particularly the desire of decedent and the minister, then expressed to claimant, that claimant should change her church affiliations, and that desire was occasioned by the relationship, existing or prospective, between claimant and deceased, then talked about. Substantially, claimant's testimony was to a personal transaction and communication between her and deceased, and her testimony should have been excluded. Tebbs v.Jarvis, 139 Iowa 428; In re Estate of Runnells, 203 Iowa 144. We are of the opinion that claimant's testimony to this conversation is more than merely cumulative, particularly that in which claimant says that decedent told Mr. Cook that she had promised to stay with her. This testimony cannot be said to be without prejudice. We think the other conversations to which claimant testified are shown to have been conversations between decedent and others, to which claimant was not a party, and that her testimony to them properly remained in the record, under the authorities above cited. Page 526 V. The executor complains of the admission of claimant's testimony to reading the $5,000 item of the will referred to, upon the ground that the exhibit was held in decedent's hands at the time that claimant read it. The testimony 8. WITNESSES: that claimant read that paragraph is not competency: testimony to a personal transaction or transaction communication, within the prohibition of the with statute. Objection is also made to copies of deceased: letters written by decedent, expressing her nonpersonal regard for claimant. The copies are in the communica- handwriting of the decedent, are her own tion. statements, and were admissible, as showing her mental attitude toward claimant. VI. The court excluded the executor's offer of the stub of the check for $88.25, on which stub was written, 9. APPEAL AND "Services in full to December 1, 1924." It is ERROR: not shown that claimant had anything to do with harmless the writing of this stub or knowledge of it. It error: does not add to the force of the check, and its rejection of rejection was without prejudice. inconse- quential testimony. VII. The executor also urges that the court erred in permitting claimant to testify that she relied upon the conversations between testatrix and the third parties which she overheard, and relied upon the $5,000 provision in the will. 10. WITNESSES: She should not have been permitted to testify to transaction reliance upon the statements which she was with improperly permitted to testify were made in the deceased: conversations with Mr. Cook. She should not, on reliance on this record, be permitted to testify by statements indirection to statements to which she would not to third be permitted to directly testify. As has been party. seen, claimant was competent to testify to conversations which she overheard, and in which she took no part. If decedent had been living, claimant's testimony that she relied upon decedent's promises would have been competent. Farmers' Nat.Bank v. Hatcher, 176 Iowa 259, 264. Such testimony is in the nature of an opinion, but it is also of her own mental state. Idem; 22 Corpus Juris 610. Decedent's death made claimant incompetent to testify only to "personal transaction or communication" between claimant and decedent. Code of 1927, Section 11257. Claimant's state of mind and her knowledge were not a personal transaction or communication, and she was not incompetent to testify thereto. In re Estate of Maurer, Page 527 199 Iowa 899; In re Estate of Townsend, 122 Iowa 246, 252; Tucker v.Anderson, 172 Iowa 277, 293. VIII. One of the instructions is objected to because it does not adequately advise the jury with reference to 11. TRIAL: the payments or the settlement to February 1, instruc- 1925. It is not objected that the instruction tions: was incorrect as far as it went. If the executor correct but desired more elaborate instruction on the nonexplicit. subject, he should have requested it. We have sufficiently discussed the twenty-one errors assigned by the executor, and find no other prejudicial error. IX. Claimant moved for the allowance of interest on the amount of the verdict from testatrix's death. As the judgment must be reversed on the executor's appeal, it is unnecessary to discuss claimant's assignment of error. We may say, however, that, on the record, the ruling of the court in this respect was not erroneous. For the error in admitting the claimant's testimony to the conversation between herself, decedent, and the witness Cook, and her reliance thereon, the judgment is — Reversed. De GRAFF, ALBERT, and WAGNER, JJ., concur. STEVENS, C.J., concurs in result.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431666/	The plaintiff stopped her automobile because Page 923 of the unloading of passengers from a street car which she was following. The defendant's truck, approaching from the rear, ran into her car, and caused the injuries complained of. Her claim of negligence is that: "Said truck was being operated in a careless and negligent manner, to wit: That said employee failed to stop said truck before striking plaintiff's car, and that the said truck was not equipped with adequate brakes to keep said truck under control at all times." The defendant argues four propositions: I. A mechanic called to prove the reasonableness of charges for work on plaintiff's car was asked to examine a paper, which is not set out in the abstract, but which evidently was a statement of account, and was asked whether or not the 2. DIVORCE: charges as made on it were fair and reasonable alimony: charges for such work and material. This was excessive objected to, and the court ruled first that the alimony. witness might answer, in so far as he knew, and later that the witness was not shown to have had anything to do with it, and was only asked if he knew about the reasonableness of the charges. The witness answered, "I believe the statement as rendered, if I would have to do the same work over, is fair and reasonable." Defendant's attorney then moved to strike the answer, but stated no grounds for his motion, and his motion was overruled. The witness was then asked: "Would you state, independent of whether you had to do the work yourself, as to whether or not, in your opinion, the statement of the costs as itemized is fair and reasonable? A. Yes, sir. Exhibit A is a reasonable statement for the work done." Exhibit A was introduced in evidence without objection. It is not set out in the abstract. The record fails to show that any proper objection was overruled, or that the evidence was prejudicial. II. The court, in stating to the jury the allegations of the plaintiff's petition, set out the allegation of negligence above referred to. This instruction was excepted to, for the reasons Page 924 "that the court nowhere thereafter in its said 2. TRIAL: instructions advised the jury that such instruc- complaint did not and would not consist of tions: negligence in itself; and the jury might, from subsequent the issues and the subsequent instructions, find elaboration that the mere failure of the said alleged curing defendant employee to stop the said truck would former in itself constitute negligence." omission. In the course of the instructions the court charged, in substance, that the mere fact that an accident occurred, and that the plaintiff was injured, would not in itself be sufficient to show that the defendant was negligent; that the statute provides that every person operating a motor vehicle on the public highways of this state shall drive the same in a careful and prudent manner, and, in the exercise of ordinary care, should have the same under such control as to be able to operate, control, and stop it so as to avoid damage; and that a failure to do so would be negligence. The court further told the jury that the defendant was bound to exercise that degree of care in the operation and control of the truck that an ordinary and prudent person would exercise under ordinary circumstances. The court set out the circumstances which the evidence on both sides tended to prove, bearing on the question of the existence or absence of negligence, and told the jury that they might take them into consideration, and any and all other facts and circumstances disclosed by the evidence showing or tending to show whether or not the defendant exercised ordinary care in having the truck under control at the time of the collision. Without setting out the instructions in full, we think the jury was not misled by them, and that the exception is not well taken. III. The defendant assigns error in one of the instructions "for the reason that the court submits to the 3. NEGLIGENCE: jury for its consideration the rate of speed at acts which the truck was traveling as an element of constitu- negligence, and there is no evidence in the ting: speed record of any excessive rate of speed on the of part of the defendant's truck, and any question automobile: as to the speed of said truck involved in the instruc- issues as joined, nor in the evidence as tions. introduced." Page 925 The appellant puts a wrong construction upon this instruction. The defendant's driver testified that he was driving slowly, not to exceed ten miles an hour, and he detailed the condition of the street and the circumstances of the accident. These circumstances, including the rate of speed of the truck, were properly thought by defendant to be material to the question of negligence. The court was not in error in telling the jury that these various circumstances that appeared in the evidence, including the rate of speed, might be taken into account in determining whether the truck was under proper control. IV. It is assigned as error that the verdict should have been set aside as the result of passion and prejudice, and contrary to the evidence. The verdict was for $1,000. The complaint seems to resolve itself into one that the testimony of 4. NEW TRIAL: the plaintiff was not corroborated, but was verdict: contradicted in very material circumstances by excessive- disinterested witnesses, and that a verdict for ness: $1,000 could only be the result of passion, $1,000. prejudice, and sympathy. It is said that, if plaintiff was entitled to recover, she was not entitled to recover $1,000. Plaintiff testifies to aches; that the doctor said the only thing that could be done for two weeks was to get off her feet and apply hot applications; that she kept hot applications on for almost a week, — was in bed from half past seven or eight in the evening until ten the next day; that she had the pack on probably six or eight hours out of every twenty-four for three weeks; that electric treatment was used every day for a month; that she was still suffering from the injury; that for about six weeks she got two or three hours' sleep per night; that she is never free from pain and ache; that her income averaged $5.00 per day; that her doctors' bills were $35. The doctor said that, after the first couple of months, she was not at the office so often; that he treated her between two and three months; that she is still very sensitive, and he would judge it would be a year or more before she completely recovers. The damage to the automobile is not shown, but is alleged to have been $69.64. Page 926 It cannot be said that the verdict was the result of passion or prejudice or contrary to the evidence. The judgment is — Affirmed. FAVILLE, C.J., and EVANS and ALBERT, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431669/	The original action in the causes consolidated on this appeal was an action for the appointment of a receiver, commenced by the superintendent of banking of the state of Iowa against the United State Bank of Des Moines, Iowa. A receiver was appointed November 24, 1924, and among the claims filed asking a preference were those of the state of Iowa and of Polk County, Iowa. The appellant-interveners are corporate sureties on the depositary bonds covering the funds of these two public bodies. The facts and issues are as follows: The United State Bank was a banking corporation duly organized under the laws of the state of Iowa, and was engaged in the general banking business in the city of Des Moines for more than five years prior to October 22, 1924, when its doors were closed as an insolvent institution. On December 22, 1924, the state of Iowa and W.J. Burbank, treasurer of said state, filed with the receiver their claim showing that, on October 22, 1924, there were state funds on deposit in said bank in the sum of $248,071, and asked for the Page 989 establishment of said claim, with interest, as a preferred claim against the assets of the bank in the hands of the receiver. On December 24, 1924, E.R. Bennett, treasurer of Polk County, Iowa, and said county filed their claim with the receiver, showing that, on October 22, 1924, there were county funds on deposit in the said bank in the sum of $95,724.93, and asked that the same be established, with interest, as a preferred claim against the assets of the bank in the hands of the receiver. On the first Monday in January, 1923, W.J. Burbank assumed the office of treasurer of the state of Iowa, and shortly thereafter, with the advice and approval of the executive council of the state of Iowa, designated the said United State Bank as a depositary for state funds, in conformity to Section 112, Code of 1897. In pursuance of the designation of the said United State Bank as a depositary of state funds, and in accordance with said statute, certain corporate bonds were furnished by the said United State Bank to the state treasurer. On the first Monday in January, 1923, E.R. Bennett qualified as treasurer of Polk County, Iowa. The United State Bank was designated as one of the depository banks in which the county treasurer might deposit the funds coming into his hands as treasurer, in accordance with Section 1457, Code Supplement, 1913, as amended. At the time the United State Bank was closed, the deposits of the state treasurer in said bank were secured by six statutory corporate bonds, to wit: Globe Indemnity Company, $20,000; New Amsterdam Casualty Company, $35,000; Fidelity Deposit Company of Maryland, $25,000; Southern Surety Company, $20,000; Detroit Fidelity Surety Company, $15,000; Federal Surety Company of Davenport, $10,000. These bonds are classifiable into two classes: (1) Those executed prior to May 3, 1923, on which date Chapter 189 of the Acts of the Fortieth General Assembly became effective, and (2) those executed after May 3, 1923. The bonds in question executed prior to that date are those, respectively, of the Southern Surety Company, the Detroit Fidelity Surety Company, and the Fidelity Deposit Company, as sureties, with the United State Bank, as principal. The bonds executed subsequently to that date are those respectively of the Federal Surety Company of Davenport, the New Amsterdam Casualty Company, and the Page 990 Globe Indemnity Company. The Federal Surety Company dismissed its appeal September 11, 1926, and the New Amsterdam and the Globe Indemnity Company, appellant-interveners, have not prosecuted their appeals or filed arguments. The deposits of the county treasurer of Polk County in the United State Bank at the time it closed were secured by six bonds, to wit: New Amsterdam Casualty Company, $5,000; Fidelity Deposit Company of Maryland, $25,000; Detroit Fidelity Surety Company, $25,000; Royal Indemnity Company, $5,000; United States Fidelity Guaranty Company, $27,500; Massachusetts Bonding Insurance Company, $12,500. These bonds, like those securing the state deposits, are also classifiable into two classes: (1) Those executed prior to May 3, 1923, to wit, Fidelity Deposit Company and the Detroit Fidelity Surety Company, as sureties, and the United State Bank, as principal; and (2) those executed subsequently to May 3, 1923, to wit, New Amsterdam Casualty Company, Royal Indemnity Company, the United States Fidelity Guaranty Company, and the Massachusetts Bonding Insurance Company. No argument has been filed on this appeal by the appellant-interveners on the county bonds, except the United States Fidelity Guaranty Company, and we must assume that the other corporate sureties on said bonds, respectively, have waived their appeal. We now turn for a moment to the issues as defined by the pleadings, and to the judgment and decree of the trial court from which these appeals are taken. As heretofore stated, subsequent to the appointment of the plaintiff-receiver, claims were filed on behalf of the treasurer of state and the county treasurer of Polk County to have established, as preferred, the amount of deposits, respectively, of these claimants against the assets of the bank in the hands of the receiver. The corporate surety companies thereupon filed petitions of intervention based on their respective interests, as sureties, respectively, on the said several bonds, praying that the claims of the said state of Iowa and W.J. Burbank, treasurer, and Polk County, Iowa, and E.R. Bennett, county treasurer, be allowed as preferred against the receiver, and the assets of the bank in his hands be ordered paid prior to the payment of the general creditors and depositors other than debts due, taxes collected, or deposits made for the Page 991 benefit of the state or municipal subdivisions thereof. To said claims and petitions of intervention the plaintiff-receiver, by way of answer and cross-petition, including amendments thereto, made general denial, and specially pleaded that by Chapter 189 of the Acts of the Fortieth General Assembly of Iowa the legislature of Iowa had provided a banking code for the state of Iowa, complete in all details, including the method of liquidation and dissolution of state and savings banks organized under the laws of Iowa; that under the provisions of said chapter all preferences are abolished, save and alone a preference in favor of the depositors of such bank; that the legislature of Iowa thus rendered inapplicable to the instant receivership the terms and provisions of Section 3825-a of the Supplement to the Code, 1913; and that, as a result of this legislation, the interveners are not entitled to a preference in the assets in the hands of said superintendent of banking as a liquidating officer of the United State Bank. Other matters are pleaded by the plaintiff which we deem unnecessary to set out in this statement. The interveners, by appropriate pleadings and amendments thereto to said answers and cross-petitions, made a general denial, except as to certain formal matters, and specifically alleged that, if Chapter 189 of the Acts of the Fortieth General Assembly of Iowa has the effect of depriving W.J. Burbank, state treasurer, or the state of Iowa, and E.R. Bennett, county treasurer, of Polk County, Iowa, of a preference in the payment of their respective claims over general creditors and depositors other than deposits of public funds, or if the legislature of the state of Iowa has, since the execution of said bonds, passed any other legislation having such an effect, then said act or acts of the general assembly are void, as against the rights of said Burbank, state treasurer, the state of Iowa, and Bennett, county treasurer, the county of Polk, or the successors of said officers in office, or of the appellant-interveners' respective rights and obligations as sureties on said bonds, in that said act or acts is or are in contravention of Section 21, Article 1, of the Constitution of the state of Iowa, in that it is an attempt to impair the obligations of contracts, and of Section 9, Article 1, of the Constitution of the state of Iowa, in that it is an attempt to deprive the said W.J. Burbank, state treasurer, the state of Iowa, E.R. Bennett, county treasurer of Polk County, Iowa, and the interveners Page 992 and the appellant-interveners, of property without due process of law, and is also in contravention of Article 14 of the Amendments to the Constitution of the United States, in that it is an attempt to deprive them of property without due process of law, and in contravention of Section 10, Article 1, of the Constitution of the United States, in that it is an attempt to impair the obligations of contracts. Cross-petitions were also filed by Burbank, state treasurer, and Bennett, county treasurer, against the appellant-interveners on their respective bonds; and by answer, duly filed by appellant-interveners, they denied all allegations of said cross-petitions, so far as the same were inconsistent with the allegations of interveners' petitions of intervention, and further alleged that their respective liabilities on said bonds were for the amounts due from the United State Bank to cross-petitioners after said petitioners have exhausted their remedies against the bank and their receiver, and that, if interveners are required to pay any amount under said bonds, they should be subrogated to the rights of the cross-petitioners against the bank and the receiver, and that the court order the receiver to pay interveners an amount equal to any such sum as they may be required to pay cross-petitioners out of the funds and assets of the bank prior to the payment of general creditors and depositors, other than deposits of amounts representing debts due or taxes assessed and levied for the benefit of the state and its municipal subdivisions. The trial court decreed that the claim of the state of Iowa and W.J. Burbank, treasurer, and the claim of Polk County and Bennett, county treasurer, in the sum as prayed against the receiver should be allowed and ordered; that the same should be paid ratably from the assets of the bank with the claims of other depositors in said bank, and denied the preferential claim of the state of Iowa, Burbank, state treasurer, County of Polk, Bennett, county treasurer, and the appellant-interveners. The trial court also entered judgment against the interveners in favor of the state of Iowa, Burbank, state treasurer, county of Polk, and Bennett, county treasurer, in the amount of the respective bonds executed by said interveners, and subrogated the surety companies to the rights of such treasurers, as depositors. The propositions relied upon by the appellant-interveners for a reversal of the judgment and decree entered may be summarized Page 993 and stated in interrogative form as follows: First, are sureties on the depositary bonds given to secure the payment of public funds deposited in state banks in conformity to law entitled to be subrogated to any preferential or prerogative right of the state or county, either as to bonds executed prior to May 3, 1923, — when, by statute, the preference ceased to exist, — or as to bonds executed subsequently to May 3, 1923? Second, was the preferential or prerogative right a vested right, within the limitation of the Constitution of the United States, so that it could not be impaired by the state legislature? Third, was Chapter 189, Acts of the Fortieth General Assembly, constitutionally enacted? In view of the fact that these questions have been answered by the decision of this court in Leach v. Commercial Sav. Bank,205 Iowa 1154, it is unnecessary to extend this opinion by a further discussion of the legal propositions presented. 1. COUNTIES: In the Commercial Sav. Bank case, supra, a powers: county's right to a preferred claim against an non-superio- insolvent bank was not involved. This, however, rity over is not a material consideration in the state. applicability of the legal principles therein announced. A county is a subdivision of the state, and owes its creation to the state. It is an arm of the state, and subject to the control and direction of the state, and in the instant matter the county's rights must be and are wholly worked out on the theory that it is a part of the state. See Kuhl v. Farmers Bankof Bouton, 203 Iowa 71. One further observation may be made in relation to the claim of the appellant-intervener, United States Fidelity Guaranty Company, with respect to the action against it and the United State Bank by Bennett, county treasurer of Polk 2. BONDS: County. It is contended that the court erred in statutory not holding that the bond of the appellant bond: acts United States Fidelity Guaranty Company is an constituting indemnity or loss bond, upon which no recovery breach. can be had by Bennett until he had sustained an actual loss by reason of the deposit of funds with the United State Bank. It is sufficient to state that the bond is, in form, a statutory bond, and the condition thereof is that, if a payment is promptly made to E.R. Bennett, treasurer, of all moneys deposited with the said principal by said Bennett, the obligation is void. Upon failure to pay on demand Page 994 promptly, it must be said that the contract was breached by the principal. The funds deposited by Bennett belonged to Polk County, and were public moneys, and it cannot be said that, before Bennett suffered loss or damage by payment of this money to Polk County, the action to recover on the bond was premature, or that the action against the surety company did not exist. So far as the facts on this particular appeal are concerned, it may be said that, for the purpose of inducing the creation of relationship of depositary bank and depositor between county treasurer and the United State Bank, the latter tendered to the board of supervisors of Polk County, as one of the bonds, the bond in question, dated December 1, 1923, and approved by the board January 4, 1924. The specific complaint of appellant is that there was no formal resolution by the board, designating the said bank as a depository; but the board by resolution approved, impliedly at least, said bank as a depository, and the appellant surety company was fully advised that the bond it was tendering was for the protection of Bennett and Polk County in depositing county funds in the United State Bank. Under these circumstances, the surety is not in a position to question the validity of the bond or its statutory character. The receiver has filed separate motions to dismiss the appeals of appellant-interveners. The ruling on the merits is a sufficient reason to overrule the motions, and they are overruled, at plaintiff's costs. The decree entered by the trial court is — Affirmed. All the justices concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431559/	Plaintiff is a finance corporation, with its principal place of business at Omaha, Nebraska, engaged in the business of financing automobile paper and other securities, having Page 679 a branch office in Sioux City, Iowa. The defendant is an automobile dealer engaged in selling automobiles in and around Sioux City, Iowa. In October, 1934, plaintiff and defendant entered into an agreement under which the plaintiff corporation agreed to purchase notes and mortgages received by the defendant from the sale of cars. At that time the parties also entered into what is known as a "dealer's reserve agreement", under which the dealer agreed to repurchase repossessed cars as provided in said "dealer's reserve agreement", which is hereinafter referred to. On November 8, 1934, one Roy Moon, of Sioux City, Iowa, purchased of the defendant, Noltze Motor Company, hereinafter called the dealer, on the installment plan, one 1934 Model Auburn automobile. After making a partial payment thereon, Moon executed his note and mortgage in the sum of $1,029.64, to the Noltze Motor Company, for the balance of the purchase price. The dealer, on the same date, sold and assigned said note and mortgage to plaintiff appellee, without recourse. The mortgage provided that in the event of a failure to pay any installment when due, possession and title of the car might be retaken by the mortgagee or its assigns. The maker of the note and mortgage defaulted in his payments, and the automobile was repossessed and the title taken by appellee on February 26, 1935, and the car at that time was delivered to the dealer at Sioux City. On February 27, 1935, the car was stolen from the dealer's garage without fault or negligence on its part. The dealer immediately notified appellee of the theft, and was advised by it that the car was covered by insurance, that they had reported it to the adjustment company, and that they would take care of it. A few weeks thereafter the automobile, burned up, was found by the police or the insurance company near Sioux City. After learning that the car was burned up, the dealer contacted the appellee corporation for the purpose of purchasing the remains of the burned car as salvage. The dealer asked the appellee's manager if he could buy the salvage because they handled Auburn cars and parts, and thought it could be used in their service department. The manager told Mr. Noltze, of appellant company, that he would have to deal with the insurance adjustment company. While in the manager's office, the manager Page 680 called the adjustment company by telephone about selling the salvage to the dealer, but was advised that they didn't know what they wanted for the salvage, or that they wanted to sell it. The manager then told Noltze to forget about the salvage, that the adjustment company didn't want to sell it. At that time the unpaid balance on the note and mortgage amounted to $949. On November 7, 1935, plaintiff appellee commenced an action against the defendant appellant for the balance due on said note and mortgage. Although this is an action commenced for the balance due upon the purchase price of the car, and although the note and mortgage given to secure such balance was endorsed "without recourse", this action is based upon appellant's alleged liability to pay the balance of the purchase price under the terms of the "dealer's reserve agreement" hereinafter referred to. The provisions of the "dealer's reserve agreement", material to this case, are the following: "Dealer will repurchase each repossessed or recovered car after car has been tendered or delivered to dealer at dealer's place of business, at any time, as is, subject to protection against conversion, confiscation and loss resulting from collision as outlined below, and dealer will pay S.I.C. (appellee) at its office upon demand in cash the amount of the remaining unpaid balance due * * * on the note or other obligation. Until demandfollowed by actual payment by dealer and delivery of officialbill of sale by S.I.C. title to the repossessed car remains inS.I.C. (appellee) and dealer's possession remains merely that ofa bailee with duty to safely store for S.I.C., "and redeliver to S.I.C. (appellee) on demand. "As to the repurchase by dealer of each repossessed or recovered car, "(a) If such car is returned to dealer within 90 days after a default in payment which has continued for such period, it is understood that the dealer will pay S.I.C. upon demand, in cash,and, in any event, within 30 days of its return to dealer, theamount of the remaining unpaid balance due S.I.C. on the obligation. * * * "Conversion, Confiscation, Collision. "S.I.C. protects the dealer in the event of conversion or confiscation, not requiring repurchase during the continuance Page 681 thereof, in an amount equal to 60% of the sales price value as shown in the `N.A.D.A. Guide Book' at date of note. The excess amount in case of conversion or confiscation less proportionate share of payments is due from dealer or chargeable to dealers reserve accounts." (Italics ours.) The mortgage on the automobile contains among others the following provisions: "Purchaser agrees with dealer and assigns to keep the property mortgaged insured against loss by fire and theft for a sum equal to the unpaid amount of this mortgage, with loss payable clause to dealer or assigns. The dealer or assigns may procure such insurance and charge the premiums to purchaser. The proceeds ofany loss under such insurance shall be first applied towards theunpaid part of any indebtedness secured by this mortgage." The record fairly shows that such insurance was secured on the car, and was made payable to the dealer or his assigns. The evidence also fairly shows that the cost of such insurance was included in the note and mortgage executed by the purchaser of the car and later assigned to appellee. The plaintiff's manager testified he told appellant's agent, after the car was stolen, that the finance company "have a policyof insurance on the Moon car for theft and fire." He also testified that the balance due his company included the insurance charges on the car, to the actual value thereof. He also said: "We talked about the fact it had been stolen, the fact it had been found, and reported to the insurance company, and talked about the salvage, the disposition of it, and that the balance onthe account would be cleaned up by the insurance company." The evidence also shows without dispute that no demand was ever made upon appellant for the unpaid balance of the purchase price, before the commencement of this action, and that no delivery of the car after it was stolen was ever made to appellant. The evidence also shows that no bill of sale was ever given or tendered to appellant conveying title to the car or its remains thereafter. At the close of the evidence, both parties filed a motion for a directed verdict. Plaintiff's motion was sustained, and Page 682 defendant's motion overruled, and judgment entered against defendant in the sum of $999. Hence the appeal. Appellant contends that this action is based upon its liability as a bailee because of the provision in the "dealer's reserve agreement" that until demand for the balance due on the car followed by delivery of official bill of sale, the title was in appellee, and the "dealer's possession remains merely that of a bailee with duty to safely store for" appellee and redeliver on demand. This action, however, is not based upon the theory that the dealer was liable for the loss of the car as a bailee. Appellee contends that the "dealer's reserve agreement" was an unqualified agreement on the part of appellant to repurchase and pay the unpaid balance due on the note for the purchase price of the repossessed car, and that appellant is liable thereon as a guarantor. Appellant contends, however, (1) That the "dealer's reserve agreement" does not place an unqualified liability upon appellant to pay the balance of the unpaid purchase price, because appellee failed to comply with that part of the "dealer's reserve agreement" which provides that"until demand followed by * * * delivery of official bill of saleby" appellee, title to the repossessed car remains in appellee,and dealer's possession remains merely that of a bailee with duty to safely store for appellee and redeliver to appellee on demand. (2) Appellant also contends that the court erred in failing to direct a verdict in its favor because appellee is estopped from claiming the balance due upon the purchase price of the car, because it was fully protected by insurance against loss by fire and theft. I. The dealer's reserve agreement under the heading, "Terms and Rates", provides: "Dealer will repurchase each repossessed * * * car after car has been tendered or delivered to dealer at dealer's place of business, at any time, as is, subject to protection against conversion * * , and dealer will pay S.I.C. (appellee) at its office upon demand in cash the amount of the remaining unpaid balance due S.I.C. (appellee) on the note or other obligation. Until demand followed by actual payment by dealer and delivery of official bill of sale by S.I.C. (appellee) title to the repossessed Page 683 car remains in S.I.C. and dealer's possession remains merely that of a bailee with duty to safely store for S.I.C. and redeliver to S.I.C. on demand." The effect of this provision is that after the repossessed car has been delivered to the dealer, it will pay appellee upon demand the amount of the remaining unpaid balance due on the purchase note. Until such demand is made, and until payment therefor is made by, and an official bill of sale is delivered to, the dealer, the title remains in the appellee, and the dealer's possession remains merely that of a bailee. [1] Paragraph (a) of the reserve agreement provides that if the car is returned to the dealer within ninety days after a default in payment which has continued for such period, the dealer will pay the appellee upon demand the amount of the purchase note remaining unpaid, and in any event this amount is to be paidwithin thirty days after the return of the car to the dealer. The undisputed evidence shows that this car, after it was repossessed by appellee, was delivered to the appellant on the same day of its repossession. Under this agreement, the dealer was required to pay the balance due on the purchase price within thirty days after delivery of the car to the dealer. The repossessed car having been delivered to the dealer on February 26, 1935, the balance due was payable on March 28, 1935. The effect of the dealer's reserve agreement was to make the dealer a guarantor of the payment of any unpaid balance due on the purchase note. Midwest Com. Cred. Co. v. Meyers, 251 Mich. 16,231 N.W. 49; Walker v. Houston, 215 Cal. 742,12 P.2d 952, 87 A.L.R. 937. [2] Under this agreement the dealer was required to repurchase the car in question on March 28, 1935, subject to the condition that title in the car remain in appellee until the repurchase price was paid. This placed him in a similar situation to that of a purchaser of personal property under a conditional sales contract, providing that between the time of delivery and payment of the purchase price, the buyer holds the car simply as a bailee, with the title remaining in seller, such a provision being for the protection of the seller. Appellant contends, however, that as the car was stolen within thirty days after its repossession and because appellant Page 684 held the car as bailee when stolen, it is liable only as a bailee, and that the loss or destruction of the car by theft or fire should fall upon the appellee, the seller, as in an ordinary sales contract. Such contention is made under the rule that, where a conditional sale is made under a contract reserving title in the seller, until payment of the purchase price, the goods are at the seller's risk, and in the event of their loss or destruction without the buyer's fault, the seller must bear the loss. 55 Corpus Juris, 1214, sec. 1202, and cases there cited. Such is the rule in some jurisdictions. A contrary rule, however, prevails in many jurisdictions under which the buyer, in a conditional sales contract, being ordinarily vested with all the instruments of ownership except title, the risk of loss or injury falls on him, and that he is liable for the purchase price although the property has been injured or destroyed without his fault. 55 Corpus Juris, 1215, sec. 1203, citing many cases supporting this rule. While no cases have been cited by either party showing the adoption of one rule or the other in this state, we think the question is now settled by the Iowa Sales Act under section 9951 of the Code of 1935, which provides: "Unless otherwise agreed, the goods remain at the seller's risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer the goods are at the buyer's risk whether delivery has been made or not, except that: "1. Where delivery of the goods has been made to the buyer, or to a bailee for the buyer, in pursuance of the contract and theproperty in the goods has been retained by the seller merely tosecure performance by the buyer of his obligations under thecontract, the goods are at the buyer's risk from the time of such delivery." (Italics ours.) Delivery of the repossessed car in this case was made to appellant on the very day it was repossessed, and under the provisions of the dealer's reserve agreement, the title to the property was "retained by the seller merely to secure performance by the buyer of his obligations under the contract." It is, therefore, our conclusion that under our statute the risk of loss after the property was delivered to appellant was upon appellant, as purchaser. Page 685 Appellant contends, however, that the reserve agreement protects the appellant in the event of a conversion. This is true, but the protection provided for in the agreement is "in an amount equal to 60% of the sales price value as shown in the`N.A.D.A. Guide Book' at date of note." As appellant failed to introduce any evidence of the sale price value in the N.A.D.A. Guide Book on the date of the note, and as there is no evidence of such amount in this record, no such protection has been established, and therefore this provision of the contract cannot avail appellant on this appeal. For the reasons hereinabove expressed, we are constrained to hold that under the "dealer's reserve agreement", the loss by a conversion or fire falls upon the appellant, unless an estoppel has been established by reason of the insurance on the car as contended in appellant's argument. [3] II. In its argument appellant contends that because appellee had insurance on the car, it was its duty to first proceed against the insurance company, and that "plaintiff was estopped by its actions in taking out theft insurance, paid for by the defendant to maintain this action." This contention is made only in appellant's argument. The trouble with it is that no estoppel was pleaded in defendant's answer. Although there is evidence showing that there was theft insurance upon the car, there is no evidence, and it is not alleged in the pleadings, that appellee ever brought suit, collected, or realized anything upon this insurance. Under the mortgage, the purchaser agreed with the dealer or assigns to keep the car insured against loss by fire and theft making the loss payable to dealer or assigns. The mortgage also provides that the proceeds of any loss under the insurance shall be first applied toward the unpaid part of any indebtedness secured by the mortgage. There is no allegation in the petition and there was no evidence tending to show that appellee ever received any amount towards the payment of the loss under the policy. The mere allegation that appellee carried a policy of insurance protecting it against theft, and that plaintiff had a good cause of action against said company for the loss sustained by the theft, and that said policy only protects the plaintiff, cannot be construed into a pleading of estoppel. It is our conclusion that no estoppel was pleaded in this action. Page 686 Matters which are available to a party, if at all, as tending to establish an estoppel cannot be established in his behalf unless pleaded as such. Dierksen v. Pahl, 194 Iowa 713, 190 N.W. 423; Ransom v. Stanberry, 22 Iowa 334; Eikenberry v. Edwards,67 Iowa 14, 24 N.W. 570; Glenn v. Jeffrey, 75 Iowa 20, 39 N.W. 160; Eggleston v. Mason, 84 Iowa 630, 51 N.W. 1; Schofield v. Cooper,126 Iowa 334, 102 N.W. 110, and see long list of cases supporting this rule in Vol. 2 Callaghan's Digest, p. 2008, Sec. 71. In Dierksen v. Pahl, 194 Iowa 713, loc. cit. 719, 190 N.W. 423, 426, this court said: "Appellee cannot avail himself of the claim of estoppel without pleading the same. The mere allegation in his petition * * that the appellant had taken possession of the premises on or about March 1st, in pursuance of the contract, cannot be construed into a pleading of estoppel, growing out of the continued possession of the premises and the transactions between the parties subsequently to the 1st day of March. * * * But estoppel predicated on these matters cannot avail the appellee, without a plea of estoppel." As shown by the preceding division of this opinion, there was an obligation under the dealer's reserve agreement upon appellant to repurchase and pay for the balance due upon said car. The purchaser's agreement to carry insurance for the protection of the dealer and assigns would not release appellant from its liability upon that obligation, unless insurance covering the car has been collected by appellee. Nor is there any provision in the dealer's reserve agreement releasing appellant from its liability to appellee under said agreement because of any insurance existing against the car in question. There is no evidence that appellee ever received or collected any amount on the insurance. There is no evidence showing any reason why the insurance company failed to pay the loss. The failure of the insurance company to pay any loss would require the commencement of an action against it thereon, and there is nothing in the reserve agreement or in the chattel mortgage requiring appellee to incur the expense of such litigation. Appellant contends that appellee is the only party who can recover upon the insurance policy, but by the terms of the mortgage referred to in the foregoing part of this opinion, the loss *Page 687 covered by the insurance was payable to the dealer or assigns, with a further provision that the proceeds of the insurance be applied toward the unpaid part of the indebtedness secured by the mortgage. This would imply that appellee was not the sole party by whom an action upon the policy might be commenced. If appellant paid appellee under its obligation on the contract, it would, no doubt, be subrogated to appellee's rights in the insurance policy. The policy, however, was not introduced in evidence and the terms thereof are not shown by the record. It is our conclusion that the facts alleged in defendant's answer shown at the trial were insufficient to establish an estoppel. For the reasons hereinabove expressed, we are constrained to hold that the judgment of the lower court was right, and the same is hereby affirmed. — Affirmed. PARSONS, C.J., and ALBERT, STIGER, and DONEGAN, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431561/	On September 13, 1948, the Iowa Electric Light Power Company which held a franchise for the distribution and sale of gas throughout the municipality of Marshalltown filed with the city council an application for an increase of rates for the sale of gas to the citizens. The proposed amendment to the gas ordinance was submitted for its first reading on September 13, 1948, and referred to a committee consisting of three members of the council. On October 11, at the next meeting of the Page 108 council, resistance and objections to the proposed amendment to the gas ordinance were filed by the plaintiffs and read aloud in open council meeting. Between the dates of September 13, 1948 and October 11, 1948, an investigation was conducted by the committee who recommended the passage of the amendment to the gas ordinance, and such amendment was adopted by the council. The new ordinance adopted was as follows: "Section 1. That the ordinance entitled `An Ordinance Establishing and Fixing Rates for Gas for Lighting, Heating, Cooking and Other Domestic and Industrial Purposes and Prescribing Penalties for Violation,' which ordinance is found in the volume entitled `Revised Ordinances, City of Marshalltown, Iowa, 1937' commencing at page 63 thereof, be and the same is hereby amended by striking all of Schedule `A' from Section 1 thereof and by substituting in lieu thereof a new Schedule `A' as follows: "`SCHEDULE A "`REGULAR GAS SERVICE RATE "`Available for any regular gas service through one meter for one establishment. "`One and 13/100 Dollars ($1.13) for the first 700 or less cu. ft. used per billing month "`One and 41/100 Dollars ($1.41) per thousand cu. ft. for the next 1,300 cu. ft. used per billing month "`One and 13/100 Dollars ($1.13) per thousand cu. ft. for the next 23,000 cu. ft. used per billing month "`One Dollar ($1.00) per thousand cu. ft. for all gas used per billing month in excess of the first 25,000 cu. feet. "`The rates are net. To avoid discrimination and to cover the extra cost of collecting delinquent bills, bills not paid within ten (10) days after rendition may be increased ten per cent (10%) on the first Ten Dollars ($10.00) and two per cent (2%) on amounts in excess of the first Ten Dollars ($10.00).' "Section 2. All ordinances or parts of ordinances in conflict herewith are hereby repealed." On October 14, 1948, the ordinance was published. On October 16 plaintiffs filed their petition in this action, and on October 20 filed amendment thereto. The petition as amended, in substance, alleges that no competent or proper investigation was made and the city council Page 109 in failing to fulfill its legislative duty, by conducting a more thorough and complete investigation, acted illegally and the ordinance so enacted was illegal and void in the form adopted, which was as follows: "1. `That any person, firm or corporation selling or furnishing gas for lighting, heating, cooking for domestic or industrial purposes to consumers in the City of Marshalltown, Iowa, shall charge therefor a rate not in excess of the rate set out in Schedule A below.' "2. `Such firm or corporation may enter into contracts with consumers at other and different rates than those set forth herein, provided all consumers desiring service under similar conditions shall have the privilege of making similar contracts.'" The two paragraphs quoted above are in the original ordinance; the second ordinance amending schedule A only. The petition further asks that the city and its officers be enjoined from enforcing the ordinance; that the action of the city council in refusing a public hearing be declared null and void and that a mandatory injunction issue, requiring the city council to perform their legislative duty in ascertaining the facts and determining a proper gas rate. Defendant answered denying the material allegations of plaintiffs' petition and by separate division and for further answer stated that the petition failed to state a claim upon which any relief as prayed by plaintiffs could be granted; that the matters and things herein set forth did not entitle plaintiffs to any relief; that the essence of the petition was to ask for judicial interference in a legislative process; that the petition failed to allege any facts showing any exercise of legislative authority by the city council other than as are specifically delegated by the laws of the State of Iowa to said council and that the petition on its face showed that the city council did nothing beyond its lawful powers in the exercise of an express power granted by the laws of the State of Iowa, and particularly by section 397.28 of the 1946 Code of Iowa. The court on application of defendant held a hearing upon the law points only. In this appeal the ruling of the court is attacked on various grounds, all of which may be grouped in Page 110 two divisions: First, the holding of the court as to jurisdiction, and second, whether or not the amendment was void because it attempted to amend a void ordinance. From this statement of the points in issue the court held that the petition fails to state a claim in which any relief prayed for by the plaintiffs could be granted. The court in its separate adjudication of law points held that the essence of plaintiffs' petition is that it asks for judicial interference in the legislative processes; that the petition fails to allege any facts showing exercise of legislative authority by the city council other than is expressly delegated by the laws of Iowa to the city council by section 397.28 of the 1946 Code of Iowa, or any act by the city council beyond its expressly granted powers. The court recites the action of the city council in granting the gas franchise and the terms of plaintiffs' complaint, and the further fact that no objection is made in the petition to the reasonableness of the rates so fixed, nor was it claimed in the petition that if the council had conducted the hearings and made a full investigation of the facts the rate would have been different from the rate established. I. The hearing, as stated, was upon the law points as presented by defendant's answer. It should be noted that plaintiffs' petition does not attack the reasonableness of the rates established by the ordinance. It merely attacks the proceedings in adopting the ordinance establishing rates. Neither do the plaintiffs complain of the result of the action of the council. The council acted under the authority granted in section 397.28, Code, 1946, which is as follows: "They shall have power to require every individual or private corporation operating such works or plant, subject to reasonable rules and regulations, to furnish any person applying therefor, along the line of its pipes, mains, wires, or other conduits, with gas, heat, water, light, or power, and to supply said city or town with water for fire protection, and with gas, heat, water, light, or power for other necessary public purposes and to regulate and fix the rent or rate for water, gas, heat, light, or power; to regulate and fix the rents or rates of water, gas, heat, and electric light or power; to regulate and fix the charges for water meters, gas meters, electric light or power meters, or other Page 111 device or means necessary for determining the consumption of water, gas, heat, electric light or power, and these powers shall not be abridged by ordinance, resolution, or contract." [1] The restriction upon this power so granted by the legislature is that the rates established by the council shall be reasonable and not confiscatory. Within this restriction the power of the council as so delegated is legislative and not within the court's control. Knotts v. Nollen, 206 Iowa 261, 218 N.W. 563, and cases cited; Cedar Rapids Gas Light Co. v. City of Cedar Rapids, 144 Iowa 426, 120 N.W. 966, 138 Am. St. Rep. 299, 48 L.R.A., N.S., 1025 (223 U.S. 655, 32 S. Ct. 389, 56 L. Ed. 594). [2] However, the method by which the council derives its results is not provided for by the statute. Plaintiffs complain in their petition of such methods and that the council did not give proper consideration in its rate-making capacity to the study of the rates and should have provided for a public hearing, but considering the fact that no complaint was made by plaintiffs that the rates were too high or unfair we see no reason for any objection as to the manner in which the council arrived at the rates. A committee was appointed and reported, but how the members of the council arrived at their information in regard to the rates, or what information they had as individuals is, of course, not shown, and for the purpose of the inquiry would be immaterial since no objection is made to the results of their rate-fixing duty. As a general rule, the acts of a municipal corporation which are within its power are not subject to judicial review unless there is a manifest and palpable abuse of power, and it is well-established that the motives of the council acting in its legislative capacity cannot be inquired into. 62 C.J.S., Municipal Corporations, section 199, page 372; id., section 200, page 376. In the present case, in exercising a power expressly authorized by statute the council has a discretion, and so far as it does not act oppressively or unreasonably under that power courts are powerless to interfere with that discretion. The case of Swan v. City of Indianola, 142 Iowa 731, 739, 121 N.W. 547, cited by defendant, supports this rule, as do many other cases, and it seems to be an established rule of law. "In accordance with settled principles applicable to legislative enactments, questions of policy contained in municipal Page 112 ordinances must be determined by the municipal legislative authorities, such as the municipal council, and not by the courts, and the ordinances are not subject to review and invalidation because the courts disagree with the policy pursued. Similarly, questions as to the expediency of ordinances are for the municipal legislature and not for the courts to determine. "In accordance with general principles applicable to legislation, the rule is well settled that the courts have nothing to do with and are not concerned with the wisdom of municipal ordinances, such as police power measures. If a municipality has the power to enact an ordinance, the wisdom of such action is not subject to review in the courts. Moreover, whatever may be thought or said of the wisdom of an ordinance is immaterial in determining whether it is reasonable or unreasonable. The same principles apply to questions of propriety of ordinances. Although the court may disagree as to the propriety of the legislation, unless it plainly and beyond all question exceeds the power there should be no judicial interference." 37 Am. Jur., Municipal Corporations, sections 184 and 185. Among the many authorities supporting the general rules set out above we cite the following as indicating the view of the courts generally: "Courts do not have the power or right to pass upon the wisdom or sound judgment, or lack thereof, on the part of the city council in enacting an ordinance or granting a permit thereunder." Hirsch v. City of Muscatine, 233 Iowa 590, 594,10 N.W.2d 71, 73. Citing cases. "It is said by our highest judicial authority that `the judiciary ought not to interfere with the collection of rates established under legislative sanction, unless they are so plainly and palpably unreasonable as to make their enforcement equivalent to the taking of property for public use without such compensation as, under all the circumstances, is just to both the owner and the public; that is, judicial interference should never occur unless the case presents clearly and beyond all doubt such a flagrant attack upon the rights of property under the guise of regulations as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for Page 113 private property taken for public use.'" Cedar Rapids Water Co. v. City of Cedar Rapids, 118 Iowa 234, 259, 91 N.W. 1081, 1090. "It was within the province of the commission to prescribe a schedule of rates. This power necessarily implied on the part of the commission a right to exercise a certain range of discretion, and so long as this discretion was kept within the authority conferred by the Legislature, and the rates fixed are not so low as to violate the company's property rights under the Constitution, it was and is the duty of this court to refrain from interference with the rates adopted. It has no power to review, revise, or correct the order fixing rates. It has no authority to substitute its judgment for that of the commission, and it cannot interfere with the collection of the rates complained of, `unless they are so plainly and palpably unreasonable as to make their enforcement equivalent to taking property for public use without such compensation as under all circumstances is both just to the company and to the public.'" Reno Power, Light Water Co. v. Public Service Comm., 300 F. 645, 653. Citing cases. "The function of the courts is merely to ascertain whether the power has been carried beyond the constitutional limits so fixed; and, if such be found to be the case, to declare the acts of the council void. They do not sit as appellate tribunals to review the correctness of the council's determination, nor need they know anything about the evidence on which that body has acted. All that they have to consider is, whether, in a given case, the result of the council's action will be to take the property of the complaining party without just compensation. That is a mixed question of fact and law, to be decided by the court upon the evidence produced before it." San Diego Water Co. v. City of San Diego, 118 Cal. 556, 564, 50 P. 633, 635, 38 L.R.A. 460, 62 Am. St. Rep. 261. As indicated by the foregoing, we are satisfied that the court in its hearing on law points was correct in its holdings; that the pleadings of plaintiffs failed to show any grounds for action by the court; that the action of the council was a legislative process and not subject to control by the court. [3] There was no complaint of the rates being confiscatory or unreasonable. The mere fact of the manner of adoption, or the passage of the ordinance without the formalities demanded by Page 114 the plaintiffs, when there is no legislative requirement or regulation as to any particular form, will not support the plaintiffs in their petition. There can be no valid complaint on the ground that the council did not follow any prescribed or established form of procedure when the results of their efforts are not complained of. How the council arrived at such results in the absence of any complaint of unreasonableness is a matter of their own choice. [4] II. Plaintiffs complain that the court erred in holding the plaintiffs were not entitled to relief based on the averment that the amendment was void because it attempted to amend a void ordinance, for that section 1 of the original ordinance does not fix an absolute rate to be charged, but does provide for a rate not in excess of the rate set out. We cannot see the force of plaintiffs' argument. The original ordinance, in section 1, provided that the corporation selling or furnishing gas should charge therefor a rate not in excess of the rate set out in the schedule below, and the amending ordinance, by schedule A, adopted and fixed these rates. Section 2 of the original ordinance states such firm or corporation may enter into contracts with consumers at other and different rates than those set forth herein, provided all consumers desiring service under similar conditions shall have the privilege of making similar contracts. These sections secure to all consumers equal treatment, and there is no showing that this rule was violated. The ordinance adopted seems to comply with the rules, and according to the authority delegated by the legislature, and no question of illegal contracts under it is raised in the pleadings of the case. The court is supported in its order in this respect by the rulings in the cases of In re Estate of Ransom, 219 Iowa 284, 258 N.W. 78, and Incorporated Town of Mapleton v. Iowa Public Service Co., 209 Iowa 400, 223 N.W. 476, 68 A.L.R. 993. III. The district court in its ruling on the law points held that they disposed of the case. We hold to the same effect, that the ruling on jurisdiction under the circumstances of this case disposes of other issues and renders further action by the court unnecessary. Plaintiffs' petition is dismissed and the ruling of the trial court is therefore affirmed. — Affirmed. All JUSTICES concur. Page 115	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431562/	The plaintiff in this action is the administrator of the estate of M.E. Melvin, deceased. The cause of action stated in the petition is based upon the alleged payment by decedent of a mortgage incumbrance upon certain real property in Marshall County which was owned in common by decedent and appellant, and is to recover contribution for a pro-rata share of the cost of removing such incumbrance. The answer, is in effect, both a general and a special denial. During the progress of the trial, it was developed in the testimony that the incumbrance was paid by decedent in 1917. Thereupon, appellant immediately set up a plea of the statute of limitations. The amendment was met by a motion to strike, upon the grounds that appellant was a nonresident of the state of Iowa during the intervening period; that the statute does not run in favor of one tenant in common against his cotenant; that appellant admitted the cause of action pleaded; that the plea of the statute of limitations was not timely, and therefore the right to plead the same was waived. The motion to strike was submitted with the case, and, upon final consideration by the court, was sustained. Appellant sought to introduce evidence of certain claims which she had paid to others for the cotenant, as offsets against the cause of action of appellee. The court, however, held that, while the action was, in form, an action for an accounting, it was, in reality, merely to recover contribution, and, by its terms, limited to the mortgage incumbrance paid by decedent, and that, therefore, the evidence was not, under the issues, admissible. We need consider only the plea of the statute of limitations. Page 868 It is elementary that a party relying upon the statute of limitations must specifically plead the same. Central Tr. Co. v.Chicago, R.I. P.R. Co., 156 Iowa 104; Belken v. City of Iowa Falls, 122 Iowa 430; Knight v. Moline, E.M. 1. LIMITATION W.R. Co., 160 Iowa 160; Borghart v. City of OF ACTIONS: Cedar Rapids, 126 Iowa 313. It is equally pleading: fundamental that a failure to so plead operates timely plea. as a waiver thereof. Robinson v. Allen, 37 Iowa 27; Borghart v. City of Cedar Rapids, supra; Belken v. City ofIowa Falls, supra. Not only is it incumbent upon the party seeking to avail himself of the statute of limitations as a defense to plead the same, but he must also show the facts constituting the bar. Harlin v. Stevenson, 30 Iowa 371; Tredwayv. McDonald, 51 Iowa 663; Jenks v. Lansing Lbr. Co., 97 Iowa 342. Had it appeared upon the face of the petition that appellee's cause of action was barred by the statute of limitations, advantage might have been taken thereof by demurrer. The date on which the incumbrance was paid by decedent did not appear in the petition, nor was it otherwise shown in the record until that fact was brought out in the testimony of a witness for plaintiff. The witness, who was the mortgagee, testified that the note was paid about 1917. It was then stipulated by the parties that the exact date thereof was "about July 1st, 1917." The plea of the statute was, therefore, interposed as soon as its availability became known to appellant. Authorities need not be cited to the point that the plea was altogether timely. The stipulation that the incumbrance was paid about July 1, 1917, which was more than seven years prior to the commencement of this action, did away with the necessity for further proof on this issue. Likewise, the burden was upon 2. LIMITATION appellee to allege and prove any facts relied OF ACTIONS: upon by him to avoid the bar of the statute. pleading: Willits v. Chicago, B. K.C.R. Co., 80 burden to Iowa 531; Winney v. Sandwich Mfg. Co., overcome 86 Iowa 608; Farrow v. Farrow, 162 Iowa bar. 87. The nonresidence of appellant, if it existed for a sufficient length of time, could avail appellee in avoidance of the statute only. No reply was filed to the amendment to the answer. Appellee now contends that the motion to strike was, in effect, a pleading, and equivalent to a reply. The motion to strike Page 869 was more in the nature of a speaking demurrer 3. LIMITATION than a reply. It was alleged in the motion that, OF ACTIONS: upon the trial of another action in the district pleading: court of Marshall County, wherein decedent was motion to plaintiff and appellant defendant, appellant strike plea. claimed that she was a nonresident of the state of Iowa, and a resident of California, during the period in question, and that the original notice in this action was served upon her in that state. No proof of any kind was offered to sustain these allegations, except such as might be shown by the return of service of the original notice, which is not before us. This court cannot take judicial notice of the pleadings and evidence in some other case previously tried in the same county. The record in the prior case is not before us. There is nothing in the record from which this court can say that appellant was ever a nonresident of the state of Iowa. The mere fact that the original notice was served upon her in California falls far short of proving that she was a resident thereof. There was, in fact, neither plea nor proof of anything in avoidance of the bar of the statute. It is suggested by counsel in argument that the plea of the statute was insufficient. This contention is without merit, as the facts constituting the bar are fully stated. It is obvious that the court erroneously sustained appellee's motion to strike the plea of the statute of limitations unless, as further contended by him, it is not applicable to controversies between tenants in common wherein 4. LIMITATION an accounting is asked. It is not always clear OF ACTIONS: just when and under what circumstances the accrual of statute of limitations is applicable in actions right of by one tenant in common against another for an action: accounting in other actions. Prior to the contribution enactment of Chapter 27, Laws of the by con- Thirty-seventh General Assembly, now Section tenant. 10055, Code of 1924, authorizing the prosecution of an action by one tenant in common against another in possession, to recover rent, no such action would lie. Varnum v.Leek, 65 Iowa 751; Van Ormer v. Harley, 102 Iowa 150; Stevens v.Pels, 191 Iowa 176; Belknap v. Belknap, 77 Iowa 71; Reynolds v.Wilmeth, 45 Iowa 693; Janes v. Brown, 48 Iowa 568. Under this statute, actions for the recovery of rent are barred in five years. The doctrine of the cited cases is not, however, applicable Page 870 to the present controversy. No agency, trust relationship, or right of possession of real property is present in this case. Appellee's decedent paid the incumbrance out of his own funds; otherwise, no right of contribution, which rests upon an implied promise to pay, would exist. Appellant concedes that, unless the same is barred by the statute of limitations, she is liable in this action for contribution, subject, however, to whatever right to offset other items paid by her may exist in her favor. It is a familiar, general rule that, where a surety pays the debt of his principal, his right to reimbursement from his principal is barred in five years thereafter. It is the general rule that the statute of limitations commences to run from the time the cause of action accrued. Appellant became liable for contribution immediately, or, at most, within a reasonable time after the incumbrance was paid off and discharged. We perceive no reason why appellee's cause of action did not then accrue. This precise question has not been previously decided by this court, but we have held that an action for contribution may be maintained at law, as well as in equity. Sears v. Sellew, 28 Iowa 501. The status of decedent after he paid the incumbrance was analogous to that of a surety. Davis v. Davis, 185 Iowa 179. It is the rule in most jurisdictions that the statute of limitations begins to run against recovery by one tenant in common from another for rents or uses at the time the cause of action accrues. Johnson's Adm.v. Johnson, 155 Ky. 9 (159 S.W. 606); Geisendorff v. Cobbs,47 Ind. App. 573 (94 N.E. 236); St. John v. Coates, 140 N.Y. 634 (35 N.E. 891); McClaskey v. Barr, 62 Fed. 209; Sommers v. Bennett,68 W. Va. 157 (69 S.E. 690); Minion v. Warner, 238 N.Y. 413 (144 N.E. 665). A cause of action at law for contribution by one tenant in common from another would obviously be barred in five years. Except in certain familiar instances, the statute of limitations is applicable to actions in equity, as well as at law. No citation of authority is necessary on this point. The rule under which the statute of limitations is tolled in certain instances in equity is not applicable to the present controversy. It seems to us almost too clear for argument that the cause of action sued upon accrued in favor of decedent immediately upon the payment of the incumbrance by him. This being true, it was barred in five years Page 871 thereafter, both at law and in equity, unless the statute was tolled by facts that avoid it, which must be pleaded. It necessarily results from this conclusion that the motion to strike the amendment to the answer should have 5. APPEAL AND been overruled, and judgment dismissing the ERROR: petition entered. That is to say, the court determina- should have applied the statute of limitations tion of to the facts of this case. The case is triable cause: de novo in this court, and we must treat the treating amendment to the answer the same as though not improperly stricken. The judgment is reversed. — Reversed. stricken plea as in record. De GRAFF, C.J., and FAVILLE and VERMILION, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431686/	I. The indictment charged the commission of the offense on the second day of August, 1925. Myrtle Munro, the prosecutrix, was at that time 13 years of age. The evidence on behalf of the State tended to show that the offense was committed 1. RAPE: near a roadside in the weeds or the cornfield. corrobora- The prosecutrix testified that the defendant had tion: sexual intercourse with her two or three times, sufficiency. and that the acts were accomplished by force and against her will. The sufficiency of the evidence, except as to statutory corroboration, is not challenged, and we shall, therefore, omit any statement of the evidence in detail. At the conclusion of the evidence for the State, the defendant moved for a directed verdict, upon the ground, among others, that the State had failed to offer any evidence in corroboration of the testimony of the prosecutrix tending in any way to point out and designate the defendant as the guilty party. An examination by a physician of prosecutrix on the third of August disclosed a ruptured hymen, and that the rupture was of recent origin. He found no bruises upon her body, or other indication of the use of violence. The testimony is undisputed, however, that her dress was torn and badly soiled, and that she stopped at a farmhouse, on her way back to Marshalltown, Page 120 where she lived, and had some of the torn places repaired. The prosecutrix, defendant, and another couple left Marshalltown about 3 o'clock P.M., in a Ford coupé, and, after driving some distance into the country, turned into a highway little frequented by travel, and stopped. Prosecutrix and the defendant got out of the car, and sat or lay by the roadside. Her female companion testified that the defendant got on top of her in the highway, and attempted to have sexual intercourse with her. Other witnesses gave testimony tending to corroborate the claim of prosecutrix that the defendant compelled her by force to submit to his desires. Without stating the evidence in detail, we conclude that the testimony of the prosecutrix is abundantly corroborated, and clearly points out the defendant as the guilty party. To what extent the repeated acts were accomplished by force is not very definitely shown by the evidence. There is, as stated, the absence of bruises upon the body of the prosecutrix, but there is abundant testimony tending to show that he attempted, in the presence or within sight of others, to have sexual relations with the prosecutrix. Many of the matters relied upon for reversal relate to the alleged improper admission of evidence. Complaint is also made of the refusal of the court to sustain a challenge to a juror for cause, and of several paragraphs of the charge to the jury. Charles A. Berg stated, upon his examination by the county attorney, that he had heard something about the case; that he had not formed an opinion as to the guilt or innocence of the defendant; and that he felt that he could try 2. JURY: the case fairly and impartially, and without competency: reference to anything he had read or heard about nondis- it. On examination by counsel for the defendant, qualifying he stated that he had such opinion as he formed opinion. at the time of hearing an account of the case in a newspaper, but that he could try the case fairly, and render a decision in accordance with the evidence. The court also examined the juror as to his qualifications. The challenge was overruled, and we think properly so. The juror was not disqualified because of having previously heard or read an account in a newspaper as to the Page 121 case. He had neither formed nor expressed an unqualified opinion as to the guilt or innocence of the defendant. II. The prosecutrix did not know the defendant, prior to August 2d. He gave her a fictitious name. She was permitted to testify, 3. RAPE: over the objections of the defendant, that she evidence: saw and identified him at the police station the identifica- next morning. The testimony was clearly tion of admissible, and the objection was, therefore, accused. properly overruled. III. A witness by the name of Leach was permitted to testify that he saw the defendant and prosecutrix in a Ford car, and had some conversation with him, a short time after it is claimed the offense was committed. The witness testified that the defendant drove into the driveway in front of his house, and turned around; that the girl was trying to get out of the car; that she had both feet and one arm out; that the man was holding her around the neck. The defendant drove away, followed by the witness, who had some conversation with him, and also with the prosecutrix. He asked her if she was in trouble and wanted help, and she replied, "I would like to get to Marshalltown." The objection to the testimony of this witness was that it was too remote, and not a part of the res gestae. It is probable that the court permitted the witness to go too far into detail as to what occurred between himself, the defendant, and another person who was present part of the time; but the fact that the defendant and prosecutrix were together, and that she was trying to escape from the automobile, and was being restrained by him, was clearly competent. They were returning from the scene of the crime to Marshalltown, and not more than one hour had elapsed after the offense was committed. This testimony tended to show the attitude of the defendant toward the prosecutrix, her attitude toward him, and that there was some source of controversy between them. The occurrence was not so remote in point of time as to render the testimony incompetent. IV. Another witness was permitted to state, in answer to a question, that: "He pushed her under the fence, and they scrapped and fought back and forth. She tried to get away." The defendant moved to strike the latter part of the answer, Page 122 upon the ground that it was the mere conclusion of the witness. It is a conclusion, but one entirely proper for the witness to 4. EVIDENCE: state. It was, however, something more than a opinion conclusion. It was descriptive in character. It evidence: would have been easy for the defendant to allowable develop upon cross-examination exactly what the conclusion. witness saw. V. Complaint is also made of the admission of certain testimony by the medical witnesses. These witnesses were permitted to describe the condition of the prosecutrix at the time she was examined by them. One of the physicians, who 5. EVIDENCE: testified that the hymen was ruptured, was asked opinion to state what the condition indicated to him. evidence: The answer was that it could only result from recital of some stretch of some kind. Whether the form of fact. the question was calculated to elicit the answer given is not very material. The answer is competent. It was a matter concerning which a medical witness, familiar with the nature of the female organs, could well testify. The membrane is described as delicate and easily ruptured. The error, if any, might easily have been cured by a further examination of the witness. The conclusion stated is, therefore, not such as to require a reversal. The remaining exceptions to the rulings of the court on the admission of testimony are so clearly without merit as to require no particular discussion. Complaint is made of the conduct of the court during the examination by defendant's counsel of a witness. The complaint is wholly without merit. Other points urged, and based on Section 12966, Code of 1924, including its alleged unconstitutionality, are answered by Statev. Toland, 198 Iowa 767. Besides, the defendant was convicted only of assault with intent to commit rape. VI. The court submitted, as included offenses, "assault with intent to commit rape," "assault and battery," and "simple assault." In the fifth paragraph of the court's charge, the 6. CRIMINAL punishment for a conviction of the crime of rape LAW: was stated to the jury. The penalty for the instruc- included offenses was not stated to the jury. tions: The defendant was convicted of assault with prejudicial intent to commit rape. The penalty for rape may recital of be imprisonment in the penitentiary for life, or punishment. any term of years not Page 123 less than five; but the minimum punishment for assault with intent to commit rape is an indeterminate term of 20 years. The giving of this instruction was error, and, under our holding inState v. Tennant, 204 Iowa 130, requires a reversal. As pointed out in that opinion, instructions stating the statutory penalty for the crime charged have been criticized, but, up to this time, we have declined to reverse a conviction on that ground. The prejudice to the defendant, under the circumstances disclosed, is apparent, and a reversal must follow. Complaint is made of others of the court's instructions. In view of a reversal upon the ground just stated, we refrain from further discussion of the exceptions to other instructions. Suffice it to say that they are all, in our opinion, without substantial merit. We have gone over the record with care, and reach the conclusion that, except for the error in Instruction No. 5, the record presents no ground for reversal. — Reversed. EVANS, C.J., and FAVILLE, VERMILION, and ALBERT, JJ., concur. De GRAFF, MORLING, and KINDIG, JJ., dissent.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3212225/	11TH COURT OF APPEALS EASTLAND, TEXAS JUDGMENT In the interest of M.A.T., L.B.T., * From the 318th District Court I.A.T., and R.L.T., children, of Midland County, Trial Court No. FM 57,494. No. 11-16-00002-CV * June 9, 2016 * Per Curiam Memorandum Opinion (Panel consists of: Wright, C.J., Willson, J., and Bailey, J.) This court has inspected the record in this cause and concludes that the appeal should be dismissed. Therefore, in accordance with this court’s opinion, the appeal is dismissed.	01-03-2023	06-11-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431566/	I. A motion in this court to dismiss the appeal has been filed by appellees on the ground that the county officials, defendants herein, are no longer incumbents in their respective offices. If the actions were merely personal actions against 1. APPEAL AND the named officials, there would be merit in the ERROR: contention. The corrections made by the county dismissal: auditor which constitute the basis of this expiration appeal were made by him in his official of official capacity. The taxing district is the real party term. in interest, and Pottawattamie county is a party defendant. The defendant county auditor is not in privity with his successor in office, nor is he his personal representative. This is also true of the county treasurer. The county is a body politic and corporate, and the issue does not involve the personal obligation of an individual to whom a writ might issue. It is said in Hines v. Stahl, 79 Kan. 88: "Where a public officer is involved in litigation in his official capacity, the expiration of his term does not require a substitution of his successor. The public is conceived as being the real litigant." This is a sane rule, and sustains the better practice. The action in such cases is regarded as against the officer, whoever he may be, and it may proceed through all its stages in all courts in the same manner in which it was commenced; or, if desired, the successor in office, on motion, may be substituted in place of the retiring one. Pittsburgh, Ft. W. C.R. Co. v.Martin, 53 Ohio St. 386. The point raised by appellees on motion is overruled. II. The record in the instant case presents no issue novel in character. The appellee bank made its report, as 2. TAXATION: required by Sections 1321 and 1322, Code levy and Supplement, 1913, disclosing its assets and assessment: liabilities. It requested the deduction of bank stock: certain government securities in determining the correction assessment for taxation. The assessor, however, of error refused to comply with the request, and assessed without the shares without reference to government notice. securities, but deducted the actual value of the real estate owned by the bank. Page 997 The statement furnished to the assessor by the bank inter alia disclosed that the capital stock of said bank was $200,000, the surplus $200,000, and the undivided earnings, $30,893.29. This statement also disclosed that the bank held United States government bonds, liberty bonds, war savings stamps, and other government securities, in the sum of $707,591.49. For the reason that the assessor did not deduct the amount invested in government securities, the bank filed written objections before the board of review, and assigned reasons why the government securities should be deducted from the capital, surplus, and undivided earnings of the bank, in making the assessment. The board sustained the objections, and made the deduction. This left nothing upon which an assessment against the shares of the stock of said bank could be made. No appeal was taken by anyone from the action of the board of review. The assessor's books were turned over to the county auditor without any assessment against the shareholders, and in making up the tax list, the auditor did not enter any assessment against the bank or its shareholders, and turned over the tax list on or about December 31, 1920, to the county treasurer, without any assessment against the bank or its shareholders. After the decision in Des Moines Nat. Bank v.Fairweather, 191 Iowa 1240, the county auditor, on or about February 18, 1921, corrected the tax list in the hands of the county treasurer, and entered an assessment against the shares of stock of plaintiff bank, based on the capital, surplus, and undivided earnings of the bank, as shown by the statement originally furnished to the assessor by the bank, without allowing any deduction on account of the government securities held by the bank. No notice was given to the plaintiff before making this correction on the tax list. This action on the part of the county auditor was provocative of this suit. The following contentions are made by appellee: (1) That the auditor had no authority to make the alleged assessments at the time and in the manner stated, without notice, because it is the taking of private property without due process of law, and in violation of constitutional provisions; (2) that the questions presented to the board of review and decided by it constituted an adjudication against the taxing officials, Page 998 including the county auditor, and that no appeal was taken by the county auditor; (3) that the said assessment by the county auditor constituted a new assessment, and an assessment on omitted property without notice; (4) that Chapter 63 of the Acts of the Thirty-fourth General Assembly is unconstitutional and void. This action concerns itself with the validity of an assessment, or the jurisdiction to make one, and not the amount of the tax involved. The first primary question is whether the county auditor had the authority, under Section 1385-b, Code Supplement, 1913, to correct the assessment in question without notice to the bank. Did the assessment involve omitted property, or was it simply an error in mathematical computation, which the county auditor had legal authority to correct? It must be remembered that we are dealing with a mandate found in legislative enactment. The assessments in question are mandatory. Nothing is left to the discretion or judgment of the assessor, board of review, or taxing official. Nothing is left to any subordinate body to determine in what amount, against whom it shall be levied, or the manner or method of making the assessment and the apportionment. The statute itself fixes and determines the base of the assessment, and consequently any correction is mathematical and purely ministerial in its character. The bank itself furnishes the verified statement disclosing the data specified in the statutory requirement. The statute leaves nothing for the assessor or the board of review to do, except to correctly compute the percentage of each shareholder. It is a problem in arithmetic, and the elements or factors of the problem are furnished by the bank. The statute prescribes the method in the solution of the problem. Under such circumstances, a hearing could be of no avail, and due process of law under such circumstances does not require that the taxpayer "shall have an opportunity to be heard, of which he must have notice." Londoner v. City and County 3. TAXATION: of Denver, 210 U.S. 373, 385. Furthermore, the levy and act of the board of review under such assessment: circumstances does not constitute an unauthorized adjudication. It involves no act of judgment or review: discretion. It is ministerial. effect. Page 999 The language of the statute must be accorded its ordinary meaning, and neither the assessor nor the board of review may go beyond the statement sworn to by the officers of the bank. From the statement furnished by the bank a computation is made, and if error is committed, it is to be corrected; and this does not constitute a new assessment, or the assessment of omitted property. First Nat. Bank of Remsen v. Hayes, 186 Iowa 892. The county auditor may correct an error in the assessment or tax list. The legislative intent, as expressed in Section 1385-b, in authorizing the county auditor to make corrections in the assessment or tax list, does not involve any discretion or judgment on his part. A correction by the board of review is in the same category. Such acts are not judicial in character. In Avoca St. Bank v. Burke, 193 Iowa 1055, we sustained the action of the county auditor in striking an allowance of deduction, on the theory that the prior action of the assessor in making the assessment was an error, within the meaning of Section 1385-b, and that the action of the board of review in failing to correct the erroneous item did not validate it. It may also be said that the action of a board of review, acting in a ministerial capacity, in overruling the findings of the assessor in making the computation for an assessment, also ministerial in character, does not validate the assessment. It is an error committed by the board. Furthermore, the county auditor is authorized to correct errors in assessments after the tax list has passed into the hands of the county treasurer. This is not only the clear implication of the statute, but is sanctioned by the express language therein. The statute reads: "If such correction or assessment is made after the books have passed into the hands of the treasurer he shall be charged or credited therefor as the case may be." Section 1385-b, Code Supplement, 1913. There is no claim that any property of the bank's has been omitted from the statement furnished the assessor by the bank. The information required by law was furnished by the bank, and no one questions its correctness. The correction made simply conforms to the statement which the bank itself had Page 1000 furnished. Under the former statute, the county auditor was authorized to correct errors of commission only. Under the statute as amended by Chapter 47, Acts of the Twenty-eighth General Assembly, the auditor is authorized to correct errors of omission; and this does not require that notice shall be first given, before the correction of an error in mere computation. The only thing necessary to complete the records in the treasurer's office was to enter the correct answer to the problem, as determined and fixed by the statute. It was merely placing the taxable value of the shares held by each shareholder upon the tax list, and thereafter computing the amount of tax to be paid by each. First Nat. Bank v. Anderson, 196 Iowa 587; First Nat. Bankof Council Bluffs v. City of Council Bluffs, 182 Iowa 107. Under the holding in the Anderson case, supra, the correction made by the instant county auditor was made during the current year, as judicially defined. The error made by the board of review was apparent on the face of the record, and the county auditor acted under the warrant of statute and the judicial interpretation of this court. At first blush, a statement made in Langhout v. First Nat.Bank, 191 Iowa 957, may seem at variance with our present holding, for it is said: "The mistakes of assessors and boards of review are final, in the absence of an appeal to the district court." This is ordinarily true, and this method is ordinarily exclusive. The remedy by appeal as to claims of fraud and discrimination, as well as to errors of judgment, is exclusive.Polk County v. City of Des Moines, 70 Iowa 351; Van Wagenen v.Supervisors, 74 Iowa 716; Smith v. City of Marshalltown, 86 Iowa 516; Crawford v. Polk County, 112 Iowa 118; Wahkonsa Inv. Co. v.City of Fort Dodge, 125 Iowa 148; Keokuk Hamilton Bridge CoalCo. v. Salm, 258 U.S. 122 (42 Sup. Ct. Rep. 207, 66 L. Ed. 496). In the instant case, however, an additional remedy is provided, to wit: correction by the county auditor. This is a distinction predicated on the statute. It involves a ministerial act; and in the case at bar, the mandate of the statute negatives discretion. Page 1001 4. TAXATION: bank stock: constitutionality of statute. Lastly, it is contended by appellee that Chapter 63 of the Acts of the Thirty-fourth General Assembly of Iowa, in its operation and as enforced by the taxing officials, violates Section 5219 of the Revised Statutes of the United States. The contention involves: First, the power of the state to assess to the shareholders of a national bank the respective value of the shares of stock therein, in conformity to the provisions of Section 1322, Code Supplement, 1913; and second, the intentional and systematic discrimination in the administration of this statute by the taxing authorities. We have repeatedly and uniformly held that this statute is not unconstitutional nor violative of the Federal statute. Head v. Board of Review,170 Iowa 300; First Nat. Bank v. City of Council Bluffs, 182 Iowa 107; Des Moines Nat. Bank v. Fairweather, 191 Iowa 1240; same case, 263 U.S. 103 (44 Sup. Ct. Rep. 23, 68 L. Ed. 191). In the Fairweather case, the Supreme Court of United States said: "Our concern here is not with a voluntary refusal or intentional omission on the part of the state to tax other moneyed capital of citizens as it taxes national bank shares, but with a submission by the state to superior laws of the United States exempting a part of the other moneyed capital from state taxes. * * National bank shares are taxable, — made so by the congressional assent. That much or little of the bank's assets consists of tax-exempt securities of the United States does not affect the taxability of the shares * * . The state taxes such shares without regard to the exempt government securities held by the bank. The capital of private bankers is taxable, save the part invested in exempt government securities. The state taxes all of that capital, save the exempt securities. They are exempt because the United States makes them so, and the state merely respects the exemption. In what is thus done, does the state discriminate against national bank shares and in favor of other moneyed capital in the sense of the restriction? The question is not new; nor can it be regarded as an open one in this court." Code Section 1322, as amended by Chapter 63, Acts of the Page 1002 Thirty-fourth General Assembly of Iowa, was rewritten to conform to the holding of the United States Supreme Court in Home Sav.Bank v. City of Des Moines, 205 U.S. 503 (51 L. Ed. 901). We have heretofore commented on the judicial interpretation in Langhoutv. First Nat. Bank, 191 Iowa 957. Since the decision in Van Allenv. Assessors, 3 Wall. (U.S.) 573, our Federal Supreme Court has consistently upheld the right of the state to tax shares of stock of national banks in the hands of the individual shareholders. The ownership by banks of government bonds is but an incident to the banking business. Shares of stock are distinct entities, and constitute property; and the taxation of such shares is not taxation of government bonds held by the bank. The statutes of the state of Iowa, in conformity to Section 5219 of the Revised Statutes of the United States, specifically place moneyed capital on the same basis for taxation purposes as the shares of national, state, and saving banks. In other words, the law of Iowa requires that all moneyed capital in the hands of individual citizens which is in competition with the capital of national banks must be taxed on the same basis. Section 1310, Code Supplement, 1913. This statute expressly guards against discrimination, and nothing therein contained authorizes a five-mill levy on other moneyed capital which is in competition with the capital of national, state, and savings banks. The petition of plaintiffs fails to state a case entitling plaintiffs to relief. Before the suit was begun, it had been decided that the taxing statute is valid, that the shares of stock are taxable, and that the acts upon which the suit is primarily based were valid. With respect to the claim of a systematic and intentional discrimination by the taxing officials, the point or proposition is predicated on the mere allegation of plaintiffs' petition. The unconstitutionality of the statute, as urged by appellants, must find answer in the language and intent of the statute. Its alleged operation or enforcement under the taxing powers, as affecting other moneyed capital, is not a ground for injunctive relief, under the instant record. *Page 1003 The demurrer to the petition of plaintiffs should have been sustained. — Reversed. EVANS, STEVENS, ARTHUR, FAVILLE, and VERMILION, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431688/	Plaintiff was three and one-half years of age. He had walked with his mother east along the sidewalk on the Page 209 north side of Sixth Avenue in Grinnell to the west side of Chatterton Street. There they turned south to cross Sixth Avenue, an east-and-west paved street, thirty feet wide from curb to curb. At that place the parking is eighteen feet wide and slopes down from the sidewalk to the pavement. The mother was wheeling a baby carriage occupied by a younger child. She testified that as they walked down the slope she saw defendant's automobile approaching from the west at a distance of about one hundred seventy-five feet and that she stopped and held the baby carriage; that plaintiff, who was at the front end of the carriage and about four feet north of the pavement, suddenly ran to the pavement and across it toward the opposite cross walk to a place about eight feet north of the south curb line of Sixth Avenue, where he was struck by the right end of the front bumper of the automobile and dragged about one hundred twenty feet. Plaintiff and his mother were visible to a person driving an automobile from a point several hundred feet to the west. Defendant admits he saw them when his car was about one-half block to the west, and that he continued to observe them and saw the child start and go into and across the pavement. Except for the child the pavement ahead of the automobile was clear. No vehicle was approaching from the east. Plaintiff's mother estimated the speed of the automobile at thirty-five to forty miles per hour, reduced to thirty or thirty-five miles per hour when it struck the child. Defendant placed it at twenty to twenty-five miles per hour, reduced somewhat after the child entered the pavement and before the impact. The record does not show how long it took this three-and-one-half-year-old child, encased in a heavy snow suit and rubber boots, to travel approximately thirty feet into and almost across the pavement, but the circumstances would warrant a finding that the car was some distance to the west when defendant saw the child start. A witness for defendant testified defendant decelerated the car so rapidly the witness was moved forward in his seat in the car. Thereafter the car traveled the intervening distance to the child and after striking him continued through and beyond the Chatterton Street intersection. Defendant finally Page 210 succeeded in stopping it after it had dragged the child a distance fixed by plaintiff's witnesses at about forty yards. Then the injured child, "huddled in a little ball," was taken from under the front of the car. I. This was a residence district in which the speed limit was twenty-five miles per hour. Section 321.285, Code of 1946. Code section 321.288 requires the operator of an automobile approaching a street intersection to have the same under control. Code section 321.329 requires a driver to exercise due care upon observing a child upon a roadway. Webster v. Luckow, 219 Iowa 1048, 1055, 1056, 258 N.W. 685, 688, states: "* * * instead of assuming that the decedent would not leave the place of safety on the side of the road, the defendant was bound to know that a child of the apparent age of decedent might do just what decedent did in this case." [1] Where a child under fourteen is in plain view upon a street in time for the driver "to reduce the speed of such vehicle and have such control thereof as to avoid coming into contact with such child" such driver must realize that the child may suddenly and unexpectedly move into the pathway of such vehicle. The foregoing rule has been reaffirmed in a number of decisions, among which are Paschka v. Carsten, 231 Iowa 1185, 3 N.W.2d 542, and Darr v. Porte, 220 Iowa 751, 263 N.W. 240. It is recognized in various other jurisdictions. See Prosser on Torts, 246, section 37. Decisions holding the operator is not liable, where a child unexpectedly darts from a concealed place into the path of a vehicle so suddenly that injury cannot be avoided by the exercise of ordinary care, are not applicable under the facts in this case. Webster v. Luckow, supra; Winegardner v. Manny, 237 Iowa 412, 417, 21 N.W.2d 209, 212; Kallansrud v. Libbey, 234 Iowa 700, 703, 13 N.W.2d 684; Luse v. Nickoley, 231 Iowa 259,1 N.W.2d 205, 3 N.W.2d 503. The trial court found defendant was negligent in that he did not have his automobile under control to the extent required of him in view of the conditions and circumstances and that his negligence was the proximate cause of the injuries. We are satisfied the record, which must be viewed in the light most Page 211 favorable to plaintiff, contains substantial evidence which supports such findings. Kallansrud v. Libbey, supra, 234 Iowa 700, 705, 13 N.W.2d 684; Holden v. Hanner, 231 Iowa 468, 475,1 N.W.2d 671. [2] II. Plaintiff's petition contained other specifications of negligence, among which were failure to drive the automobile at a careful and prudent speed, and driving it at more than twenty-five miles per hour. The trial court based the judgment upon the findings of the failure to have the automobile under proper control and made no reference to other specifications of negligence. Defendant contends that was equivalent to a finding that no other specification of negligence had been proven. Under similar circumstances speed and control have been regarded as interrelated and we have said it is difficult to isolate speed from other elements. Davidson v. Vast, 233 Iowa 534,10 N.W.2d 12. Had the court found against plaintiff on the control specification of negligence, and rendered judgment for defendant, his contention might have been meritorious. But the finding on that specification was against defendant. Evidently the court deemed findings upon other specifications unnecessary to the decision. In any event, under the circumstances, the failure to mention them did not constitute findings thereon adverse to plaintiff. Plaintiff contends the other specifications of negligence were established. Our conclusion, hereinafter noted, renders unnecessary the consideration of errors asserted by plaintiff. [3] III. Defendant does not assert that the mother's negligence, if any, would bar recovery by the child. See Raskin v. Sioux City, 198 Iowa 865, 200 N.W. 333; Collinson v. Cutter,186 Iowa 276, 286, 170 N.W. 420; annotation in 15 A.L.R. 414. However, he contends that because of the presence of the mother the rule of Webster v. Luckow, supra, requiring him to anticipate that the child might move into the street, was inapplicable. At defendant's request the court made the following finding: "The Court does not find from the evidence that the Plaintiff Page 212 was, immediately prior to the accident, under the complete control of his mother, but had departed from that control to the extent of several feet, and, therefore, the Court does not apply the rule contended for by the Defendant that a child of tender years under the control of his parent may not recover for injuries sustained by him." There was evidence that plaintiff was at the front of the carriage behind which his mother was standing and which she was holding to prevent its running into the street; that they were in full view of defendant; that when plaintiff started toward the pavement his mother was not in a position to reach and restrain him, although she attempted to do so; that she excitedly called to him and finally abandoned the baby carriage, which rolled down the incline. This was sufficient to support the finding that the child was not under the mother's control at the time in question. The trial court did not err in applying the doctrine of Webster v. Luckow, supra. — Affirmed. All JUSTICES concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431567/	The controversy in its ultimate motive is one between the children of a generous mother, over their prospective interests in her estate. As is usual in such cases, the parent is torn by the fangs of the filial controversy. The controversy turns upon a certain transaction had on February 7, 1924, an understanding of which requires a brief statement of the preceding family chronology. Up to 1910, the Drake family lived in Page County, Iowa. The family consisted of husband and wife and three children, all of whom are now parties to this litigation except the husband, who died in 1919. In 1910, Mr. and Mrs. Drake and their daughter Mrs. Needles and her husband moved to California. The son Guy remained in Iowa. The daughter Mrs. Bostrom also continued to reside in Iowa for a time, and thereafter in Nebraska. Mr. and Mrs. Drake and Mr. and Mrs. Needles acquired in California adjoining homes, and occupied the same for ten years. In December, 1919, Mr. Drake died. Mrs. Drake was the owner of their 80-acre farm, located in Page County. In 1920, she and Mrs. Needles visited Page County, for the purpose of selling the farm. It was at a time of soaring land prices, and the farm was sold to the son Guy for $350 per acre, and for a total of $28,000. Of this purchase price he paid his mother $8,000, leaving a balance of $20,000. At the same time, the mother made a distribution of $15,000 of her estate by giving to her daughters $5,000 each, and giving to Guy a credit of $5,000 upon the purchase price of the farm. This left the mother holding $15,000 of Guy's notes, drawing 5 1/2 per cent interest. In the ensuing years of hard times, Guy was not able to meet his interest payments. The family correspondence gives evidence of some cleavage between the children, as between the daughters, on the one hand, and Guy on the other. This appears to have been stimulated by the fact that Guy was not keeping up his interest, and by the further fact that he pleaded for more or less consideration for the fact, in the light of subsequent events, that he had paid an inequitable price for the farm. The record indicates an evident desire in the mind of Mrs. Needles to put up some barrier against a possible encroachment upon the estate by, or on behalf of, Guy through the sympathy of his Page 929 mother. Substantially all the remnant of the mother's estate consisted of Guy's notes and her home, worth about $7,500. Mrs. Needles was the principal and closest adviser of her mother in her business transactions. The mother, however, was a careful and intelligent person, of business judgment, and was manifestly a woman of high character. She left her notes at all times in the custody of the Shenandoah National Bank, with which bank she and her husband had transacted business for many years. She was worried over a possible double taxation of her notes, both in California and in Iowa, and likewise double inheritance taxes. Ever since the death of her husband, she had had under contemplation some method of so disposing of her property as to make administration upon her estate unnecessary. As between her children, her purpose at all times was to maintain equality of distribution. She had corresponded with her attorney in Iowa as to a method of carrying out her purpose. This was in 1920. He advised her at considerable length, in substance that she could deliver her notes in her lifetime to a third person, to be delivered after her death to her children. He also advised her: "You would have to renounce all claim to them however when deposited, except that you could reserve the interest." This correspondence is the strongest circumstance in the record against her. She never indicated, however, her willingness to follow the plan thus suggested. She later conceived a plan of her own, which did not include affirmative renunciation of her dominion over her property during her life. Nothing, however, was actually done under either plan. On December 26, 1923, she was taken very ill, and was confined to her bed, and so continued until the month of March. She was at that time in her eighty-second year. The testimony of the plaintiffs shows that she was not expected to recover, and did not herself expect to recover from her illness. It was during this illness, and on February 7, 1924, that the transaction occurred which is involved in this suit. Previous to this date, the notes had been sent for, and had been received from the Shenandoah National Bank. Certain credit indorsements were made thereon on February 7th. The notes were thereupon returned to the Shenandoah National Bank, with the following letter of instructions: Page 930 "Los Angeles, Calif., "February 7, 1924. "Shenandoah National Bank, "Shenandoah, Iowa. "Gentlemen: "I hand you herewith the three notes signed by Guy Drake and secured by mortgage on his farm, which you have held heretofore to collect interest. On one note I have endorsed that it is to become the property of Guy Drake at my death; on another that it is to become the property of Mattie F. Needles at my death; and on the other that it is to become the property of Mertie E. Bostrom. Each is in the sum of $5,000.00, on which endorsements have been made reducing the total principal to $13,000.00, and the interest has been endorsed as you will notice thereon. You are to hold these notes until my death, collecting the interest and remitting the same to me as usual. At my death the one for Guy Drake is to be handed to him by you; the one for Mattie F. Needles is to be handed to her by you; and the one to Mertie E. Bostrom is to be handed to her by you. The mortgage securing the notes is to be handed to Mattie F. Needles and Mertie E. Bostrom, or either of them. An affidavit showing my decease, signed by either Mattie F. Needles or Mertie E. Bostrom, will be sufficient authority for you to deliver the notes and the mortgage. "Very truly yours, "Eliza A. Drake, "1299 N. Cataline Ave. "Pasadena, Calif." For the purpose of this transaction, Mrs. Needles had called the California attorney with whom she and Mrs. Drake had usually counseled, and the letter of instruction was prepared by him and was signed by Mrs. Drake. It was mailed by Mrs. Needles. It will be noted that this letter of instruction was such as would have warranted the inference of a delivery in præsenti, and would have warranted the court in so construing it, in the absence of a challenge by her in her lifetime that such was not her intention. The cardinal requirements of a gift are: (1) That there must be an intention of the donor to make it in Page 931 præsenti; (2) that there must be an intentional delivery inpræsenti. This case turns upon the question whether Mrs. Drake understood and believed that she was parting with her dominion over her property irrevocably, and therefore intended to so part with it; or whether she understood and believed, and so intended, that her right of dominion, and therefore her right of revoking her instruction, was to continue during her lifetime, and to become effective only upon her death. As bearing upon the general proposition of law involved herein, which is indeed quite elementary, a few excerpts from 28 Corpus Juris may properly be set forth: "A clear and unmistakable intention on the part of the donor to make a gift of his property is an essential requisite of a giftinter vivos. And this intention must be inconsistent with any other theory. In this respect there is no distinction between verbal gifts and those evidenced by a writing, or between gifts of personalty and gifts of realty. Delivery of property without such intent, as, for instance, through inadvertence or mistake, will not support a gift. Moreover, the intention required is a present intention; a mere intention to give in the future, however well shown, gives rise to no obligation which the law will recognize or enforce. It is not necessary, however, that the expression of intention be synchronous with delivery. There is no particular form in which the intention of the donor must be expressed. It may be manifested by acts or words or both, or it may be inferred from the relation of the parties and from all the facts and circumstances." Pages 627-8. " * * Where a donor uses clear and unambiguous language showing a clear intent to make a gift and a belief on his part that he has done all that is necessary to complete it, the act of delivery, if slight and ambiguous, will be aided thereby, particularly in case of a gift from a husband to a wife." Page 634. "Where the donor has been induced through a mistake of fact, or misrepresentations, to make a gift, equity will intervene to set the same aside. * * * One desiring to rescind a gift made under mistake as to his legal right to the property is bound to act promptly upon learning of such mistake." Page 652. "Constructive fraud often exists where the parties to the gift have a special confidential or fiduciary relation, which Page 932 affords the power and means to one to take advantage of, or exercise undue influence over, the other. Wherever, from such relation, considerable authority or influence necessarily exists on the one side, and a corresponding reliance and confidence is placed on the other, a party will not be suffered to abuse this authority or influence by extracting any advantage to himself, and a gift obtained under such circumstances will be avoided, in equity, unless it appears that it was made without fraud or undue influence. Ordinarily, a gift by a person old and feeble and easily influenced, to one in attendance upon him, will be viewed with suspicion. But such gifts are not necessarily void, and in some cases would be perfectly natural and proper, and they will be upheld where it appears that they were made freely and voluntarily, without the exercise of any undue influence. The mere existence of a confidential relationship does not, as a matter of law, operate to bar the right of a beneficiary to receive a gift. If the donor was, at the time, of sound mind, and clearly understood the transaction, and exercised a free will in the act, being under no restraint or undue influence, such gift will be supported. But the law views transactions of this kind between such parties with some jealousy, and to set them aside it is not necessary to aver or prove actual fraud, or that there was such a degree of infirmity or imbecility of mind in the donor as amounts to legal incapacity to make a will or execute a valid deed or contract. If, at the time of the gift, the donor's mind was enfeebled by age and disease, even though not to the extent of producing mental unsoundness, and the donor acted without independent and disinterested advice, and such gift was of a large portion or all of the donor's estate, and operated substantially to deprive those having a natural claim to the donor's bounty of all benefit from the donor's estate, these circumstances, if proved and unexplained, will authorize a finding that the gift is void, through undue influence, without proof of specific acts and conduct of the donee. Although the donor may be well aware of what he is doing, yet, if his disposition to do it is produced by undue influence, the transaction will be set aside. But where the nature of the confidential relation existing between the parties is not such as to raise a strong presumption of undue influence, it seems that the gift may be supported simply upon proof that the donor understood the transaction." Pages 653-4. Page 933 "In some jurisdictions, where a confidential relation exists between the donor and the donee, the validity of a gift depends upon whether or not the donor had independent advice. And, even where this rule is not recognized as controlling, it has been held that the question whether or not the donor received independent advice is a material one to be considered with other surrounding facts and circumstances, such as the nature and purpose of the gift and the condition and relation of the parties." Page 654. "In the absence of evidence raising a suspicion of fraud or undue influence on the part of the donee, the fairness of a gift will be presumed, and the burden is on one attacking the validity of the gift on that ground to show clearly that it was not the voluntary act of the donor. However, the presumption of fraud will arise more readily in cases of gifts than in cases of contracts. And where the circumstances are such as to suggest fraud and undue influence, the burden is on the donee to overcome the presumption of fact arising therefrom. Thus, where the relations between the parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either, on the one side, from superior knowledge of the matter derived from a fiduciary relation, or from overmastering influence, or, on the other, from mental weakness, or dependent confidential relation, unfair advantage in a transaction is rendered probable, then the burden is shifted, the transaction is presumed void, and it is incumbent on the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary, and well understood. This is usually done by showing that the grantor had the benefit of competent and independent advice of some disinterested third party, and in some jurisdictions this is required to be shown. This presumption of undue influence is more or less strong, according to the nature of the relation which the parties occupy toward each other. The presumption against the validity of the gift is not limited to those instances where the relation of parent and child, guardian and ward, or husband and wife, exists, but in every instance where the relation between the donor and donee is one in which the latter has acquired a dominant position. The rule has even been applied Page 934 to a gift from a principal to his agent, but it is usually held otherwise." Pages 670-1. "Since intent is a mental fact requisite to create a gift, the donor may testify directly as to his intent at the time of the transaction. So evidence as to an alleged donor's motives, reasons, or inducements in making the gift is admissible for the purpose of sustaining the probability that the gift was in fact made." Page 674. "It is necessary to establish by the kind of evidence above stated [clear, convincing, and satisfactory] the competency of the donor, freedom of the will, intent, delivery, acceptance, and the parting by the owner with his control or right of dominion over the subject of the gift. An actual delivery may be proved from the facts and circumstances, and need not be proved by witnesses who saw it made; but the circumstances proved must clearly and satisfactorily show a delivery." Pages 678-9. The general purport of the foregoing was recognized by us inRunnels v. Anderson, 186 Iowa 1370, at 1380, wherein we said: "There must be not only intent and purpose to give, and by the gift to pass title to the donee, but there must be a delivery, in pursuance of that purpose and intent. Or, in other words, there must be proof of intent to make a present gift, with the present intent and purpose to pass title, followed by an actual delivery of the thing which is the subject-matter of the gift. The burden of proof is on the one who asserts the gift to prove all the essential elements to consummate the gift, and this evidence must be clear and satisfactory, and, as some of the cases say, `conclusive.' Truman v. Truman, 79 Iowa 506; Wilson v. Wilson,99 Iowa 688." In Mulock v. Mulock, 31 N.J. Eq. 594, it was said: "`This court never can recognize any deed which is a mere voluntary deed of gift, when it appears that there was any defect in the understanding of the nature of the gift on the part of the donor; if the deed be tainted with a want of complete understanding of its nature by its author, the court must treat it as invalid, and consider that the property did not pass.' * * The wisdom and justice of this principle are obvious to every mind. Its application to this case is conspicuously pertinent, and its effect most righteous." Page 935 The foregoing excerpts from Corpus Juris are all sustained by abundant authority therein cited, and we shall give no further attention to the discussion of the law applicable to the record before us. Mrs. Drake was a witness in the case, and testified to the circumstances attending her signing of the writing. She testified definitely that she did not understand that she was parting in præsenti with the dominion or control of her property, but that she fully believed that she retained full control and power of revocation of her instruction during her lifetime. She signed the paper under circumstances of great disadvantage. She had no recollection of the presence of any person at the time of her signing. Mrs. Needles was present, and a granddaughter, Miss Bostrom, and the attorney. Mrs. Drake remembered none of them, but did remember that she signed the paper. It is not at all incredible that she should have had the understanding to which she testifies. The legal distinction and the importance thereof between a delivery in præsenti and a delivery in the future after the death of the donor are not readily apparent to the lay mind. It will be noted in the writing before us that it speaks wholly in the future tense, and that it contains no language calculated to direct the attention of a layman to the fact that its legal effect is immediate, and not in the future. She testified that under no circumstance would she have executed the instrument if she had believed that it terminated her control over her property during her life. A reading of this record convinces us that she truthfully discloses the real attitude of her mind at the time of the signing. Some of the convincing circumstances are that she was actually dependent upon the principal sum comprising her estate, for her support. She so testifies, and it is nowhere denied. It appears that, at or about the same time, she conveyed her homestead to the two daughters. This was valued at $7,500. The notes in question comprise substantially all the rest of her estate. Her only confidential adviser was Mrs. Needles, who was the beneficiary of the gift. The paper was executed in extremis, when she was very ill. She was never more dependent upon her daughter for assistance and advice than at that very time. In the distribution of her estate, she had previously given to Mrs. Needles $6,000. To this should be added one half the value of the home conveyed to the two daughters. She had previously given to Mrs. Bostrom $5,000, to which should Page 936 be added one half the value of the home. That the last remnant of her property should be taken from her, under color of a gift, in the hour of her helplessness by reason of illness, presents a situation which appeals to a court of equity in her favor, and would so appeal if a complete delivery had been made to the donees themselves. Mrs. Drake first learned on June 28th that the claim was made that her proposed gift was irrevocable, and that she had lost dominion over her property. The occasion for it was that, after her recovery, she had written to a friend in whom she had confidence, in Page County, asking that he advise her of the actual value of the farm purchased by Guy. The information given her was that it was worth not to exceed $250 an acre. Though she had heretofore resisted Guy's plea rather firmly, giving him some moderate credits, the information received by her convinced her conscience that she ought to reduce the price. This she determined to do. She wrote to Guy, asking him to come to California, in part, at least, at her expense. It was in her effort to make this amend to her son that it was revealed to her that she had lost her dominion. She wrote to the Shenandoah Bank for a return of the notes. The daughters checkmated her by wiring to the bank a warning forbidding its surrender of the paper. Hence the lawsuit. It is true, in the consideration of the case, that the conception which Mrs. Drake had of the legal effect of her act was one which would reduce it to a nullity. This was doubtless the consideration that influenced the trial court. We do not deem it adequate as an estoppel against her. If she mistakenly supposed that she could dispose of her estate after her death in that way, and yet retain full dominion over it during her lifetime, it was a mistake on her part, and nothing more. It does not furnish a reason why she should be bound to something which she had not intended, and which she would not have consented to, if she had understood. The instrument actually signed by her has not in it any affirmative language which is inconsistent with her conception of its effect, even though it be true that it could properly be construed inconsistently with such conception. The terms of this instrument are not necessarily controlling of the result. The controlling question is, What was the real intention of Mrs. Drake when she sent her notes to the Shenandoah Bank? Did she intend at that time to make a present gift Page 937 and to surrender her present ownership and dominion over her property? Did she at that time intend and believe that she was retaining dominion of the property during her lifetime? If yea, the gift was not consummated. The written instrument is very important evidence, as bearing on such question, and it is only that. It was not a contract, nor is it claimed to be enforcible as such. It is subject to explanation, and even to contradiction, like any other non-contractual writing. It does cast a burden of explanation upon her. Without such explanation, the instrument would be deemed to express her intention at that time. In such event, the only question presented would be one of construing the terms of the instrument. In the presence of the explanation made, and the contention put forward in the evidence of the mother as to what her real understanding was, the ultimate question is to be determined in the light of all the evidence, including both the writing, on the one hand, and the oral evidence, on the other. As already foreshadowed herein, we see little reason to doubt the candor of Mrs. Drake, as a witness, on this question. There is nothing incredible about it; whereas, on the other hand, a present gift and surrender of her property would have been a very improvident act on her part. When it is further considered that the instrument was signed by her when she was under a large degree of disability, and that she acted under the advice and assistance of one of the donees, and that she thereby gave away substantially the last remnant of her property, her claim of misunderstanding is greatly corroborated and fortified. In such a case, though it were found that the gift had been consummated, even so, in the presence of the circumstances here indicated, a court of equity might well permit her to renounce even a consummated gift. We hold that she did not intend at that time to surrender her dominion of the property, and that the gift was therefore not consummated. This conclusion results in the reversal of the decree below. — Reversed. De GRAFF, C.J., and ALBERT and MORLING, JJ., concur. Page 938	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431568/	The facts in this case are simple and not in dispute. It is the application of the law to the facts which provokes the litigation. Sarah F. Keeler died testate, a resident of Des Moines, on the 24th day of August, 1936. Her will was duly admitted to probate in Polk County, and an application was later filed by Clyde H. McClure, her son, and executor of her estate, to construe her last will and testament, which is the action with which we are now confronted. The devisees named were her son, Clyde H. McClure, his three sons, Gordon, Douglas and Bruce, and two children, named Lois R. and Robert L. McClure, of Leonard McClure, a son of testatrix who predeceased her. At the time of her death she was the owner of a residence property in Des Moines, about 76 acres of land in Boone County, and a lot in Clear Lake, Iowa, together with personal property consisting of cash, a note, some certificates of interest in various apartment buildings in Chicago, and other miscellaneous items, including jewelry and furniture. Together with her two sisters Mrs. Keeler inherited from their father about 162 acres of land, of which they were the owners on June 26, 1920, the day they contracted to sell same to one Orson Peterson. The sale was duly made, and deceased and her two sisters received some cash and three notes for $16,000, Page 1351 each secured by separate mortgages. The mortgage to Mrs. Keeler was duly filed of record. In September of 1935 Peterson and his wife reconveyed the property to Sarah F. Keeler, and received their note and mortgage in return, the mortgage being released. Prior to said time Peterson had paid $4,000 on the principal of the note. The deed whereby the property in dispute was conveyed to Orson Peterson was dated February 14, 1921. The mortgage given by Peterson and his wife to Mrs. Keeler to secure the payment of the $16,000 note, was dated the 25th of February, 1921. The deed by which Peterson and his wife reconveyed the mortgaged property was dated February 25, 1935, and contains the following provisions: "The other valuable consideration above referred to is the cancellation and surrender of a note dated February 25, 1921, and the release of a mortgage securing said note dated February 25, 1921, and recorded in book 188 at page 144 of mortgages in the Recorder's office of Boone County, Iowa. "Grantee agrees to pay the last one-half of the 1934 taxes. "Possession to be given March 1, 1936." The mortgage was properly released and the note and mortgage surrendered by Mrs. Keeler to Peterson. The will of Sarah F. Keeler was executed on or about the 17th day of October, 1934. She died on August 24, 1936, without having changed her will. The paragraphs of the will involved in this controversy are as follows: "Ninth: I give and bequeath to my son, Clyde H. McClure, the Sixteen Thousand Dollar ($16,000.00) promissory note of Orson Peterson, and the Mortgage on the eighty (80) acre farm in Boone County, near Ogden, Iowa, given as security for the payment of said note, on which Four Thousand Dollars ($4,000.00) has been paid. * * "Eleventh: In the event that any other additional sums of money should be left as part of my estate after all cost of administration and other expenses have been paid, and all distributions have been made, according to the terms herein expressed, then I give and bequeath such balance of money to my son, Clyde H. McClure, and to my grandson, Robert L. McClure, to be divided equally between them. * * ." Page 1352 The lower court found that the surrender and cancellation of the mortgage indebtedness by the testatrix during her lifetime affected an ademption of the bequest contained in paragraph nine of testatrix' will, and that because thereof the real estate received in satisfaction of said note and mortgage securing same passed under paragraph eleven of testatrix' will as a residuary devise, and that said paragraph nine was inoperative. Clyde H. McClure personally, and as the executor of the last will and testament, has appealed to this court. I. It is the contention of the appellant that it was the intention of testatrix that the real estate received by her in satisfaction and cancellation of the mortgage indebtedness was to pass under paragraph nine of her last will and testament; that the cardinal rule of the construction of wills is to ascertain the intention of the testator and such intention, where possible, must be given effect. [1] There is no dispute in regard to the law concerning this. However, the rule as to intention has reference to intention at the time of the execution of the will, interpreted in the light of the facts and circumstances existing at the time the will is made. In Brown v. Brown, 213 Iowa 998, 240 N.W. 910, this court said at page 1000, 240 N.W. at page 911: "The purpose of construction is to ascertain and give effect to the intention of the testator. The will must be construed as an entirety, and effect given as far as possible to each provision. The several provisions should, so far as possible, be harmonized and made subservient to the testator's main purpose." In the case of In re Estate of Etzel, 211 Iowa 700,234 N.W. 210, we find the following at page 702, 234 N.W. at page 211: "The all-important consideration in determining the question before us is to ascertain, if possible, the intent of the testator. When that is clearly and definitely ascertained, it must govern, unless there is some legal impediment in the way." This court had the following to say in the case of Benham v. Turkle, 173 Iowa 598, at pages 602, 603, 153 N.W. 1017, at page 1018: "The first duty of the court is to consult the document itself Page 1353 and, if it is clear and unambiguous in its terms, the controversy must be determined therefrom. As is said in some cases, it is the duty of the court to take the instrument by its four corners, consider all that the instrument contains, and from the whole instrument determine the intention of the testator as to each matter covered by its terms." In In re Flannery Estate, 221 Iowa 265, at page 271,264 N.W. 68, at page 71, the court reiterated the same rule and added: "The court may not make a will for the testator, nor impose upon the will a forced or unnatural construction to accomplish what may seem to be a more just or appropriate distribution of his estate." In the case of Mann v. Seibert, 209 Iowa 76, at page 81,227 N.W. 614, at page 616, this court said: "Parol evidence was, under the instant facts not admissible. The testator's intent is to be gleaned from the will. The parol evidence, such as is found here, cannot be considered." We find the court used the following language in the case of Gilmore v. Jenkins, 129 Iowa 686, at pages 691, 692,106 N.W. 193, at page 194, 6 Ann. Cas. 1008: "Looking again to this fourth paragraph of the will, we discover no ambiguity or doubt therein. * * "Primarily, the testator's intent is to be gathered from the will itself. Parol evidence cannot be received to give a will operative elements, language, or provisions not in it before; for such testimony is only admissible for the purpose of affording light whereby what is in a will may be read, understood, and applied. * * * "We have gone as far as any court in permitting extrinsic evidence in aid of the construction of wills, but have never yet held that such evidence is admissible for the purpose of changing a will, or to aid in the making of a new one — one which the testator intended, but did not in fact make." In Boehm v. Rohlfs, 224 Iowa 226, 233, 276 N.W. 105, 109, after discussing former cases, this court said: "The plain effect of the language as used in a will is not to Page 1354 be varied by external proof of what effect was really intended. But where the language is more or less obscure, or the meaning is hidden and there exists what is known in the law as a latent ambiguity, parol evidence may be resorted to for the purpose of making intelligible in the will that which cannot without its aid be understood or resolving a doubtful interpretation." II. Under paragraph nine of the will there was a specific bequest to Clyde H. McClure of a promissory note and the mortgage given as security for the payment of said note. It is the contention of the appellee, and was the holding of the trial court, that cancellation of the note and mortgage extinguished the subject matter thereof and the bequest was thereby adeemed and became inoperative. [2] There seems to be some difficulty in recognizing the distinction between the doctrine of "ademption" and the doctrine of "satisfaction." Some of the courts do use the word "ademption" in considering cases where the question of "satisfaction" of a bequest is involved, but it is nevertheless very clear that all of the courts, including our own, recognize the distinction. In the case of Heilman v. Dakan, 211 Iowa 344, 233 N.W. 542, this court said at page 345, 233 N.W. at page 543: "`Ademption' is properly applied when the legacy is specific, and `satisfaction' is a more accurate term when the legacy is general, * ." In In re Estate of Brown, 139 Iowa 219, at page 225,117 N.W. 260, at page 262 we read: "A general legacy may be satisfied, although not strictly speaking adeemed. It is this which distinguishes ademption from satisfaction. One depends upon the intention of the testator as inferred from his acts, and the other upon the extinction of the thing or fund granted. * * The doctrine of satisfaction depends very largely, if not altogether, upon the intent of the testator." [3] Obviously the question of satisfaction is not involved in the case at bar. The question here is whether the ninth paragraph of the will is a specific bequest. It specifically provides the thing bequeathed, to wit, a $16,000 promissory note of Orson Peterson, and the mortgage on the 80-acre farm in Boone County Page 1355 given as security. At the time of the death of the testatrix the Peterson note referred to did not exist as part of the assets of the estate. Testatrix herself had canceled the note, had released the mortgage and surrendered the papers to the maker thereof. In other words, the subject of the bequest was extinguished. There is nothing in the will which shows at the time it was made the testatrix had any idea she would acquire this property. She had no interest in the real estate and could not make a devise thereof. The subject matter of the controversy was a promissory note and not real estate, both under the law and in the mind of the testatrix at the time she executed the will. This of course cannot be, and is not denied. Yet appellant seeks to avoid the application of the doctrine of ademption, upon the theory that the subject matter of the bequest still exists but in a changed form; that the facts in this case show a change in form only. With this we cannot agree. At the time the will was made the testatrix owned a note, secured by a mortgage, — personal property. At the time she died she owned real estate, the note and mortgage having been surrendered and canceled; that obligation had been completely wiped out, just the same as if Peterson had paid her in cash. Appellant cites at length from Corpus Juris. We have no quarrel with the rules cited. We quote from appellant's brief: "(a) Rule Stated. The test of ademption, it has been said, is such a change in the subject-matter of the legacy as to destroy its identity, a change in the nature of the property, of that character, works an ademption. However, where the property is retained at all times by the testator but the gift is claimed to have been adeemed by a change in its character, there must ordinarily be such a change in form as to render it incapable of identification; slight or immaterial changes will not work an ademption; an alteration which does not wholly destroy the identity of the property is insufficient to adeem the gift, and thus a suspension or temporary discontinuance of business will not adeem a gift of a going business where the stock in trade is kept intact with the purpose present at all times in the testator's mind of resuming business operations." In the case at bar, however, the specific bequest was a note and a mortgage. It was personal property. Its identity was destroyed. It was paid. It was canceled. It was surrendered. And Page 1356 at the time of the death of testatrix she was the owner not of personal property but of real estate. In the case of Elwyn v. DeGarmendia, 148 Md. 109, 128 A. 913,40 A.L.R. 553, the Maryland Court of Appeals at page 556 of 40 A.L.R. said: "`Ademption,' we think is to be sought for in the facts of destruction or loss of the thing specified in the legacy, or loss of its identity as specified, rather than in change of intention on the testator's part. Lord Thurlow, who decided the leading case of Ashburner v. MacGuire, 2 Bro. Ch. 110, 29 Eng. Reprint, 63, 2 Eng. Rul. Cas. 18, after two years of study and reflection (Chaworth v. Beech, 4 Ves. Jr. 555, 556, 31 Eng. Reprint, 285), concluded that the only rule to be adhered to was to see whether the subject of the specific bequest remained in specie at the time of the testator's death, for if it did not, then there must be an end of the bequest; and that the idea of discussing what were the particular motives and intention of the testator in each case, in destroying the subject of the bequest, would be productive of endless uncertainty and confusion. * * * The modern text-writers seem to avoid the view that ademption is to be sought for in change of mind." In In re Brann, 219 N.Y. 263, 114 N.E. 404, L.R.A. 1918B, 663, the late Justice Cardozo of the Supreme Court of the United States, then a member of the New York Court, said: "But it is also true that unless the subject of a specific legacy exists, unchanged in substance, at the date of the will, there results an ademption, * * . "It was once thought that ademption was dependent on intention, and `it was, therefore, held in old days that when a change was effected by public authority, or without the will of the testator, ademption did not follow. But for many years, that has ceased to be law.' * * It has ceased to be law in New York. * * * What courts look to now is the fact of change. That ascertained, they do not trouble themselves about the reason for the change." And at page 405 we read: "It is a fallacious argument which would have us say that, because there was no residue when the will was made, we must Page 1357 construe it in such a way as to make it impossible that there should ever be a residue. It was to provide against the contingency of a possible residue that the residuary clause was framed. The opportunity to change it was given when a codicil was signed; and with knowledge of the condition of the estate, the clause was left the same." Mrs. Keeler had knowledge of the condition of her estate after she canceled the note and mortgage. She knew that she had taken title to this real estate but she did not change the will altho she lived approximately a year and a half after she took title. Appellant relies upon the case of In re Estate of McLaughlin,97 Cal. App. 485, 275 P. 875. The facts in that case are very similar. The rules of law laid down are the same that we have set out in this opinion, yet the California court arrives at the opposite conclusion. Appellees attempt to point out certain distinctions. First, California has a statute, which is cited in the McLaughlin opinion as follows: "To the same effect section 1303 of the Civil Code provides that: "`A conveyance, settlement, or other act of a testator, by which his interest in a thing previously disposed of by his will is altered, but not wholly divested, is not a revocation; but the will passes the property which would otherwise devolve by succession.'" (Page 877) It would appear that this statute was probably enacted for the purpose of avoiding the doctrine of ademption, and it does not change the rules which the courts have laid down. The wording of the will in the McLaughlin case is different than in the case at bar. In that case the will was written by the testatrix herself and gave to her husband not the note but the mortgage. We quote from that will (page 876): "Give and devise to my beloved husband J.D. McLaughlin all of my interest in that certain mortgage against the east half of the north 100 feet of lot 4 block P and Q, 7 and 8 street, Sacramento, California, occupied by Rose Ann Callahan." The California court had this to say, at page 877: " * * the testatrix, having executed an holographic will, Page 1358 probably lacked legal advice informing her of the technical distinction between actual title to real property and the mere equitable interest which is created by a mortgage lien." There is another distinction: In the will in the case at bar there is a residuary clause, in the McLaughlin case there was not. The California court said, at page 877: "The construction of a will is preferred which leaves no intestacy as to any part of the estate." The writer of this opinion is frank to state that he cannot see where there is a marked distinction between the case at bar and the McLaughlin (California) case. We agree upon the rules of law, yet we arrive at opposite conclusions as to the application. In the case of In re Miller, 128 Iowa 612, at page 617,105 N.W. 105, at page 106, this court said: "It is equally well settled that upon sale of devised real property by the testator the proceeds of such sale of which he may die possessed will not be substituted for the property itself, unless a direction so to do is found in the will." At page 619, 105 N.W. at page 107, this court quotes with approval from a New York case, McNaughton v. McNaughton, 34 N.Y. 201, as follows: "If there had been a specific devise to the appellants of the farm, the sale of it by the donor in his lifetime would have operated as a revocation of the gift. They would have acquired no interest in the bond and mortgage, though given for a portion of the purchase money. The rule on this subject is well settled." We are constrained to hold that the bequest was a specific one, and that by canceling and surrendering the note and mortgage and taking title to the real estate there was an ademption, and in so holding the lower court was right. The writer of this opinion is frank to admit, however, that he feels as did the Massachusetts court when it said in the case of Moffatt v. Heon, 242 Mass. 201, 136 N.E. 123, 124: "We must hold the legacy in the fourth clause of the will specific, although we cannot but fear, that, if the testatrix had Page 1359 been fully advised of the consequences of making a legacy specific, she would have changed her will." And so in the case at bar, if testatrix had known the consequences we feel she would have changed her will. III. The last question raised by appellant is that the court erred in construing the will so that the real estate received by testatrix in satisfaction and cancellation of the mortgage indebtedness passes under the eleventh paragraph of the will, which is as follows: "Eleventh: In the event that any other additional sums of money should be left as part of my estate after all cost of administration and other expenses have been paid, and all distributions have been made, according to the terms herein expressed, then I give and bequeath such balance of money to my son, Clyde H. McClure, and to my grandson, Robert L. McClure, to be divided equally between them." [4] We do not find it necessary to discuss this question, for appellant admits that he is not concerned with the court's finding, even if it was erroneous, for he was not in any way adversely affected. If the lower court had placed the construction upon this the appellant desires, appellant would have received one-half of the property as an heir at law. Under the will itself, and under the construction placed upon it by the lower court, he receives one-half of this property. The only person adversely affected by the lower court's ruling is Lois McClure. She has not appealed. It necessarily follows that this case must be, and it is hereby, affirmed. — Affirmed. SAGER, C.J., and ANDERSON, KINTZINGER, DONEGAN, RICHARDS, and HAMILTON, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431695/	The plaintiff's farm comprises 195 acres. A proposed primary road was established upon and through this farm. The following plat will aid in describing the location of the road upon the farm: Page 685 [EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.] This new road extends from the point F to C, a distance of 200 rods. Between the points C and B, and between A and F, it is laid upon the boundary line, and appropriates a width of 33 feet from plaintiff's land. From B to A it is laid wholly 1. EMINENT upon plaintiff's land, and operates to divide DOMAIN: his farm into two separate parts. East of the compen- line FC runs the Muchakinock Creek, which runs sation: substantially parallel thereto. The plaintiff's conflicting house and buildings are located near the east evidence. line of the farm. Along this east line runs the present primary road No. 59. It will be noted that the plaintiff's farm is irregular in shape. All parts thereof, however, were readily accessible, prior to the establishment, to the plaintiff's house and appurtenant buildings. That part of the highway which operates to divide the plaintiff's farm is laid upon a high grade, varying from 3 to 9 feet in height. At that point thereof which is provided as a place of crossing for the plaintiff, the grade is 7 1/2 feet high. This grade for its full length is protected by high railings on each side. That part of plaintiff's farm lying to the west of the highway consists mainly of tillable land, with the residue of pasture. That part thereof lying to the east of the highway consists mainly of pasture, with the residue of tillable land. The amount of land appropriated from the plaintiff's farm is 3.15 acres. Necessarily, the main question litigated was the extent of depreciation in the value of plaintiff's farm by reason of the establishment of such highway. Manifestly, also, the larger damage to Page 686 the plaintiff caused by this highway was its effect upon the value of the farm as a whole by reason of its division into two parts, rather than by the extent of the acreage carved therefrom. The appellant presents for our consideration one contention only, and that is that the damages allowed were excessive. The amount awarded was manifestly large; on the other hand, the damage to the plaintiff's farm was manifestly very substantial. The extent of depreciation in the market value of the farm in its new condition was necessarily a question of estimate and approximation. The award of the jury fixed such depreciation substantially at $25 per acre. Three of the plaintiff's witnesses estimated such depreciation at $25 to $30 per acre. A fourth witness estimated the depreciation at $50 per acre; and a fifth one at $20 per acre. On the other hand, the defendant's witnesses estimated the depreciation at from $5.00 to $10 per acre. Two of the defendant's witnesses were members of the sheriff's jury, and one was a member of the board of supervisors of the defendant county. With this wide range of opinion, the jury had to find a middle ground. The verdict awarded had support both in the direct evidence and in the physical facts to which the evidence was directed. If the estimates of plaintiff's witnesses were unduly high, it is quite manifest that those of the defendant were unduly low. If these latter estimates could have been substantially higher, they might have afforded the jury a better standing ground than was otherwise afforded them. The existence of the highway across the farm fixed a daily and permanent inconvenience in the operation thereof. That such a manifest inconvenience would operate upon the mind of a proposed purchaser to the substantial depreciation of the market value, is very evident. There was evidence that the farm was worth $200 per acre before the road was laid thereon. The contention now presented by appellant was presented in its motion for a new trial, and was overruled by the trial court. The trial court has a larger discretion at this point than we have. The verdict comes before us stamped with the approval of the trial court. We can discover in the record no proper ground for our interference therewith. Appellants insist in argument that the trial judge condemned the verdict as excessive at the time he overruled the *Page 687 2. APPEAL AND motion for a new trial. This insistence is not ERROR: predicated upon the record before us. The preservation plaintiff insists, on the other hand, that the of error: trial court approved the verdict, and overruled nonrecord the motion for a new trial. Such is the record matter. presented here. Needless to say, we are not permitted to follow counsel outside of the record. If the trial judge in fact disapproved of the verdict as being excessive, it was the privilege of the defendant, and the duty of the court, to have such fact appear of record. With such disapproval, the court could not consistently refuse relief to the defendants. Upon the record as it is, we cannot say that the verdict was excessive.Kosters v. Sioux County, 195 Iowa 214; Bracken v. City of Albia,194 Iowa 596. The judgment below is, accordingly, affirmed. — Affirmed. FAVILLE, C.J., and ALBERT and MORLING, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431729/	Carrie Fitch by marriage became Carrie Quigley. She is the mother of Wilmer H. Fitch, who will be referred to hereinafter as Fitch. In 1926, Fitch was the owner of lots 7 and 8, block 3, original town of Bennett, Cedar county, Iowa. At that time he was indebted to his mother for sums of money advanced to him at various times. These sums were all figured up by Mrs. Page 459 Quigley's attorney on May 6, 1926, and a deed was prepared by which Fitch conveyed the property to his mother for the recited consideration of $4,500, that being the amount of the advances made to him. This deed was filed for record in the county recorder's office on May 7, 1926. Fitch is a veterinarian. He occupied a part of the premises above referred to as an office. Appellant Stephenson is also a veterinarian. On the 15th day of January, 1929, he entered into a contract with Fitch by which Fitch agreed to sell, and Stephenson agreed to buy, the above-described real property, Fitch's veterinarian business and stock of drugs, and Fitch agreed to refrain from the practice of his profession in Bennett and within a radius of twenty miles of Bennett for a period of fifteen years. The consideration of the contract was $5,000. $1,500 was paid at the time the contract was made. The balance was payable in $500 payments to be made on August 1, 1929, January 1, 1930, and on the 1st day of July and January thereafter until the total amount had been paid. As before noted, $1,500 was paid at the time the contract was made. Thereafter the following payments were made: August 20, 1929, $150; September 7, 1929, $100; September 18, 1929, $150; February 1, 1930, $100. All of such payments were made to Fitch. Fitch did not live up to his agreement to refrain from the practice of his profession within the radius of 20 miles of Bennett, but opened up an office at Walcott, which was within the prohibited territory. Stephenson brought an action to restrain Fitch from violating the contract. The time when this action was commenced is not disclosed by the record, but the matter came on for trial, and decree was entered in it on May 29, 1931, restraining Fitch from practicing his profession within the proscribed territory. At the time the injunction suit was tried, Stephenson was in default in his payments on the contract. Fitch pleaded the facts in this respect as a defense in the injunction suit but, as before noted, Stephenson was granted injunctive relief. While the injunction suit was pending the present action was commenced at law by Mrs. Quigley to recover possession of the real property, upon the theory that she was its owner and consequently entitled to its possession. Stephenson filed an answer and cross-petition alleging that he was the owner and entitled to the possession of the real property. In the cross-petition he alleged that plaintiff was only the owner of the naked legal title to the property; Page 460 that said property in truth belonged to Fitch; that he (Stephenson) had entered into a contract with Fitch for the purchase of the real property at the agreed price of $1,500, and a stock of drugs owned by Fitch for $300 and the good will of Fitch's veterinary practice for the remainder of the contract price, which by process of calculation would be $3,200. Stephenson alleged that he had paid $2,000 on the contract, which was payment in full for the buildings and drugs; that Fitch had breached his contract and thereby forfeited the sum which was to be paid to him for the good will of the practice. He asked that title be quieted in him and that plaintiff be required to convey the real property to him. During, or at the close of, the trial the defendant amended his answer, to conform the pleadings to the proofs, by alleging that in the execution of the contract Fitch acted as the agent of plaintiff; that under the contract Stephenson acquired an equitable interest in the property and the right to its possession; that plaintiff with full knowledge of the contract, ratified the same by accepting from Fitch $2,000, paid by Stephenson to Fitch on the contract, and is estopped to deny the right of Stephenson to the possession of the property under the terms of the contract. It was also alleged by the defendant that he had been garnisheed by a judgment creditor of Fitch and that if any money were due Fitch it could not be paid on account of such garnishment. The allegation that the contract entered into was for the purchase of the building at $1,500, the drugs at $300, and the good will of the business at $3,200, is totally unsupported by evidence. The written contract reads: "(2). In consideration of the sale and agreement to convey the real estate hereinbefore referred to and the said furniture, fixtures, stock, good will, etc., the party of the second part hereby agrees to pay to the party of the first part or his heirs, or assigns, the sum of five thousand ($5000.00) dollars." The testimony of the witnesses in relation to the negotiations preceding the execution of the written contract does not establish that any of the items covered by the contract were included in the contract at a definite figure. Upon the basis that the building, the stock of drugs, and the good will of the business were sold at separate figures, the defendant constructs an ingenious theory under which no further Page 461 obligations rest upon him under the contract notwithstanding the fact that $3,000 of the $5,000 has not been paid. He contends that the building was sold for $1,500 and the stock of drugs for $300, or a total of $1,800. He argues that because he has paid $2,000, these items have been fully paid. He says that in the injunction suit Fitch pleaded the default in making the $500 payments when they became due as a breach of the contract which justified Fitch in entering into the veterinary practice at Walcott, and that because the court granted injunctive relief the decree is an adjudication that he was not in default, and that since he was not then in default he cannot now be in default, notwithstanding the fact that $3,000 of the purchase price remains unpaid. This whole structure falls to the ground on account of the failure of proof noted in the preceding paragraph, if for no other reason. The allegations of the cross-petition and answer in relation to Fitch being an agent of Mrs. Quigley in the execution of the contract are likewise without support in the record. The testimony establishes without dispute that Fitch was not Mrs. Quigley's agent, as well as the fact that he did not assume or pretend to act as her agent. The allegations in appellant's pleadings to the effect that Fitch was the owner of the property are not sustained by the record. The deed from Fitch to his mother is a regular warranty deed. The deed was promptly placed on record. It was given in consideration of advances made by the mother in amounts greatly in excess of the value of the property. There is not a word of testimony to impeach its character as an outright conveyance of the property. [1] The record is conclusive that Mrs. Quigley had no knowledge of the negotiations leading up to the execution of the contract between Fitch and Stephenson or of the fact that the contract had been executed, until some time after its execution. Ultimately Fitch told his mother of the contract. Mrs. Quigley testifies as follows: "I didn't know anything about Dr. Stephenson buying the building. I didn't know anything about it in January, 1929. My son did not tell me anything about it at all. It was not a complete surprise to me when Dr. Stephenson moved into the building. My son, Dr. Fitch, told me about it after it was done. My son did not have any arrangement with me prior to entering into the contract with Dr. Stephenson, that is, with reference to his entering into the Page 462 contract with Dr. Stephenson. After my son had sold the building to Dr. Stephenson, I consented that the deal be consummated in accordance with the contract providing I got the money. I don't know anything about the contract Exhibit `A.' This is the first time I ever saw it or had it in my hands. I did not see the copy that belonged to my son. All I know about it was what my son told me after the deal was made. I told him that the deal would be all right providing I got my pay, that is, the pay for my building. That was a deal between my son and myself. My son did not tell me that he had represented the building to be his building in the contract." [2] Stephenson contends that this conversation amounted to a ratification of the contract between him and Fitch. The difficulty lies in the fact that the contract was not subject to ratification by Mrs. Quigley. It was not made for her nor in her behalf. Fitch was not her agent nor did he pretend to be her agent. He was, in truth and in fact, making the contract for himself even though he did not then have title to the building. In this situation the contract was not subject to ratification by Mrs. Quigley. Wycoff, Seaman Benedict v. Davis, 127 Iowa 399, 103 N.W. 349. Neither was Mrs. Quigley an undisclosed principal. Fitch was contracting for himself. When told by Fitch of the contract Mrs. Quigley said: "I consented that the deal be consummated in accordance with the contract providing I got the money. * * * I told him that the deal would be all right providing I got my pay, that is, the pay for my building. That was a deal between my son and myself." It is perfectly apparent that Fitch was seeking assurance that he could secure the conveyance of title to Stephenson upon the performance of its terms by Stephenson, and we think it is equally apparent that what Mrs. Quigley said was only an assurance that upon receipt of her price she would convey the property. The contract was not ratified by Mrs. Quigley for the reason that it was not legally susceptible of ratification by her. It is obvious that the matters now under consideration were never communicated to Stephenson until Mrs. Quigley testified upon the witness stand, for the allegations relating to these matters were contained in an amendment to the pleadings filed for the purpose of making the pleadings conform to the proofs. Page 463 It has been noted that Stephenson paid to Fitch sums totaling $2,000 under the contract. Fitch has paid to Mrs. Quigley either $1,700 or $2,000. The source from which Fitch derived these payments is undoubtedly the money paid to him by Stephenson. Stephenson contends that the receipt of this money by Mrs. Quigley is a ratification of the contract and constitutes an estoppel. For reasons heretofore indicated, the contract was not subject to ratification. Under the arrangements which Mrs. Quigley made in her oral conversation with her son she was at liberty to accept payments from him, and when her price had been paid by the son she would undoubtedly be obliged to convey the property. But the arrangements were between her and her son and not between her and Stephenson. She was not a party to the contract between Fitch and Stephenson either in name or by operation of law. She was the owner of the property. Ordinarily ownership carries with it the right to possession. The only right to possession which Stephenson pleads is based on the contract with Fitch under which he claims that the building was bought for $1,500 and has been paid for and upon which he pleads that he is obligated in no further amounts on account of the breach of the contract by Fitch. It is neither pleaded nor proven that the payments made by Fitch to his mother were known to Stephenson or that Stephenson has done anything or refrained from doing anything on account of such payments having been made. Stephenson is in no worse position than if the payments made by him to Fitch had been paid by Fitch to a stranger. He did not know of the payments being made and he has sustained no detriment thereby. In consequence of this an essential element of estoppel is lacking. He has not changed his position or suffered any detriment on account of the payments having been made to Mrs. Quigley. It is unfortunate for Stephenson that he entered into a contract with Fitch for the purchase of the property to which Fitch had no title, but Mrs. Quigley is not to blame for this. The deed by which she acquired title was promptly recorded. Stephenson's strategy is to take a position in which he will be able to offset a claim for damages for Fitch's breach of the contract against Mrs. Quigley's right to be paid for the building. Unfortunately for him he has no contractual rights or equities which will enable him to do this. Fitch is not a party to the present action. Whether he is entitled to recover the money which he has paid to his mother, or whether Stephenson Page 464 is entitled to recover from Fitch all or any part of the money which he has paid to Fitch, is not involved in this suit and is not now decided. The trial court determined the issues in favor of plaintiff and entered judgment that she was entitled to the immediate possession of the lots described and directing that a writ of possession issue to put her in possession of the same. The judgment of the trial court is correct, and it is affirmed in all respects. — Affirmed. EVANS, ALBERT, KINDIG, and DONEGAN, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431733/	The administration of this estate has provoked considerable litigation, some of which has been before this court. See Equitable Life Assur. Soc. v. Christensen, 225 Iowa 1258, 282 N.W. 721; In re Estate of Christensen, 227 Iowa 1028, 290 N.W. 34. The will of testatrix nominated her husband, H.N. Christensen, executor and he qualified as such. By the terms of the will he was devised one half of the estate in fee and a life estate in the other half with remainder in fee to the objectors and appellants herein. On May 10, 1940, H.N. Christensen was declared to be of unsound mind. Pending such adjudication, on May 8, 1940, Naomi Miller et al., remaindermen under the will, filed an application, which was amended the following day and, as amended, asked that C.E. Nelson or H. Wayne Black, both of Audubon, Iowa, be appointed administrator with will annexed in the event a vacancy should occur by reason of H.N. Christensen, the executor, being adjudged of unsound mind. Following the adjudication of May 10, 1940, one Sam Ross was appointed guardian of H.N. Christensen and, on May 22, 1940, Ross, as such guardian, filed a resistance to the application of Naomi Miller et al., and an application that he, Ross, or Charles S. White, his attorney, be appointed administrator with the will Page 1164 annexed. On May 28, 1940, Naomi Miller and the other remaindermen filed a resistance to Ross' application. On June 15, 1940, Ross filed an answer to such resistance. On June 17, 1940, the matter proceeded to trial, evidence was introduced and, at the end of the trial, the court appointed Sam Ross administrator with the will annexed. Naomi Miller and the other remaindermen appeal. [1] Appellants' first assignment of error asserts that the court erred in not granting to appellants a priority pursuant to sections 11883 and 11884 of the Code, 1939. Said sections provide as follows: "11883 Administration granted. In other cases, where an executor is not appointed by will, administration shall be granted to any suitable person or persons on the request and application of: (1) The surviving spouse; (2) The next of kin; (3) Creditors; (4) Any other person showing good grounds therefor. "11884 Time allowed. To each of the above classes, in succession, a period of twenty days, commencing with the burial of the deceased, is allowed within which to apply for administration." Appellee contends that the case is controlled by section 11874 of the Code, 1939, which provides as follows: "11874 Filling vacancies. In case of a vacancy, letters of administration with the will annexed may be granted to some other person, or, if there be another executor competent to act, he may be allowed to proceed by himself in administering the estate." We have carefully examined the authorities relied upon by appellants in support of their contentions herein. The decisions of this court which they cite do not appear to be in point. The decisions from other jurisdictions of course are not controlling and they do not appear to be persuasive because they interpret statutes which are not identical with ours. Those decisions of this court which appear to be applicable would seem to indicate that there is no merit in appellants' contention. It will be noted that section 11883 of the Code applies "where an executor is not appointed by will". Such is not the Page 1165 case here. H.M. Christensen was appointed by the will, qualified as such and served as executor of the estate for approximately six years. Also, when we consider the provisions of section 11884 with those of section 11883, it seems apparent that the legislature had in mind only an original appointment because the time allowed in which to assert the right of priority commences to run "with the burial of the deceased". If we are to give effect to that provision, then appellants had no right of priority, because approximately six years had expired since the burial of the deceased. In the case of Crossan v. McCrary, 37 Iowa 684, 688, an application was made for the appointment of an administrator de bonis non after a lapse of five years from the death of the testator. The estate had not been fully settled. The administrator appointed was objected to by the widow. She claimed priority and her contentions appear to be similar to those now asserted by appellants. In holding that the appointment was proper, we state: "The appointment of McCrary, being neither next of kin to decedent, nor a creditor of the estate, was properly made under Revision [1860], sections 2343-2347. The time fixed by these provisions in which the widow, next of kin and creditors of the estate respectively, are required to apply for appointment, having expired, the court was authorized to appoint any proper person, though a stranger." Appellants contend that the above language supports their contentions. We are disposed to the view that it is opposed to them. Again, in the case of Ellyson v. Lord, 124 Iowa 125, 133, 99 N.W. 582, 585, in construing Code sections 3290-3292 of the Code, 1897, now sections 11873-11875 [Code, 1939], we state: "With reference to executors it is provided that, if a person appointed executor refuses to accept the trust, or is removed, and a vacancy is thereby occasioned, letters of administration with the will annexed may be granted to some other person, and the substitution of other executors shall occasion no delay in administering the estate. See Code, sections 3290-3292, which are Page 1166 substantially the same as provisions in force when Lord was appointed. There are no specific provisions as to the appointment of a succeeding administrator in case of a vacancy." The above language indicates that the priorities claimed by section 11883 of the Code, 1939, are not applicable to an appointment made pursuant to the provisions of section 11874. There is a further consideration that would seem to be conclusive against the contentions of appellants. Their proposition is based upon the assertion that the priorities granted under section 11883 may be insisted upon as a matter of right and that the court would have no discretion in the matter. We have repeatedly held otherwise and have recognized discretion in the making of such appointments. The case of In re Estate of Tracy, 214 Iowa 881, 884, 243 N.W. 309, 311, appears to be particularly in point. In that case, there were two groups of heirs applying for the appointment of their respective candidates as administrator. The court refused to appoint either candidate and appointed a person who was not advanced by either group. In holding that the selection was proper, we state: "As bearing somewhat on the question of the exercise by the court of discretion under similar circumstances, see In re Van Vleck's Estate, 123 Iowa 89; In re Warner's Estate, 207 Pa. 580, 57 A. 35; Justice v. Wilkins, 251 Ill. 13, 95 N.E. 1025; Carpenter v. Wood, 131 Mich. 314, 91 N.W. 162; Bridgman v. Bridgman, 30 W. Va. 212, 3 S.E. 580; In re Schmidt's Estate,38 A. 464 (Pa.); 23 C.J. 1047." By reason of the foregoing, we hold that there is no merit in appellants' first assignment of error. [2] Appellants' second assignment of error asserts that the court erred in granting to appellee, as guardian of H.N. Christensen, a preference. The third assignment of error asserts that the court erred in holding that the interests of the guardian were not in conflict with the interests of the administrator of the estate. The fourth and final assignment of error complains of the willingness of the guardian to serve without compensation. These assignments of error will be considered together. In making the appointment, the court states: Page 1167 "I think Sam Ross should be appointed for two reasons: "First, because of the peculiar circumstances of the situation revealed in evidence, I think he is in a position to carry out the duties of the office and with more economy and efficiency, and with less danger of expensive and protracted litigation than the other worthy men suggested. "Second, it appears to be the general rule that a guardian may act for a ward, who, but for his incompetency, would be entitled to control the appointment. 21 Am. Jur. 416, at 76; 23 C.J. 1040, at 104. "With the exception of some dictum in the Read case 179 Ia. 1208, 162 N.W. 775, the authorities cited by counsel for Naomi Miller, et al, on this last proposition are not in point. "I do not believe that the mere claim that the ward is indebted to the estate would disqualify his guardian to act as administrator, at least in the absence of evidence that such indebtedness exists. "On the other hand the combination in one person of the duties as guardian for the principal heir and life tenant with those of administrator with will annexed of the estate, together with the fact that the attorney for the guardian is also receiver of the real estate, offers an excellent opportunity for closeness of cooperation and efficient management. No challenge is made of the integrity or ability of Mr. Ross. "The allegation of willingness to waive certain compensation is given no consideration. "If the heirs are aggrieved by any failure of the executor to collect assets it would appear that they might raise the issue by objection to his reports or in one of the other methods heretofore pointed out in connection with this proceeding." It will be noted that the court states, "The allegation of willingness to waive certain compensation is given no consideration." Accordingly, there is no merit in the fourth assignment of error. The only assignments of error, remaining for our consideration, are the second and the third. They challenge separately the two reasons given by the court for his appointment of Ross as administrator. We will consider the assignments together, because Page 1168 we feel that the court considered the two reasons, in their cumulative effect, as sufficient to warrant the appointment. When we so consider them, we are disposed to the view that there was no such abuse of discretion as would warrant reversal herein. Appellants' second assignment of error asserts that the court erred in granting the guardian of Christensen a preference. We do not so construe the decision. The appointment was made in the exercise of discretion, for the best interests of the estate, in securing closeness of cooperation and efficient management. We hold that this was within the discretion of the court. There remains the third assignment of error, which asserts that the court erred in not holding that the interests of Ross, as guardian, were so in conflict with his interests as administrator that he was disqualified thereby. The court held that the objection was without merit, in the absence of evidence that such indebtedness exists. We are of the opinion that such holding was within the discretion of the court. [3] Appellants contend, however, that the appointment of Ross makes it impossible to secure an adjudication of the indebtedness of Christensen to the estate. They rely upon certain language, appearing in the case of McEwen v. Fletcher, 164 Iowa 517, 525, 146 N.W. 1, 4, Ann. Cas. 1916D, 631, 634, to wit: "There is no provision of law for the appointment of a special or temporary administrator to collect a claim due from the regular administrator to the estate; neither the heirs, creditors, distributees, or legatees may maintain an action to recover such indebtedness from the regular administrator; and, of course, the administrator cannot sue himself. * * [Citing cases.]" We are convinced that appellants misinterpret the position taken by us. In announcing the rule to be applied in determining the liability of an administrator or an executor to the estate, we also state (164 Iowa 517, 525, 526, 527, 146 N.W. 4, 5, Ann. Cas. 1916D, 634, 635) as follows: "For every purpose save one, to which we shall presently advert, debts due by an administrator to the estate he is Page 1169 administering are treated as assets of the estate from the time of their maturity, * * "Many courts hold that the amount of the indebtedness of the administrator will be treated as assets in his hands belonging to the estate, from the time of its maturity, be he solvent or insolvent; thus making the sureties on his bond guarantors of his personal indebtedness, and becoming immediately liable for the amount of the indebtedness because of the administrator's insolvency. * * * [Citing cases.] "The better rule, we think, is that, for the purpose of charging the sureties on the administrator's bond, the indebtedness owing by the administrator to the estate should not be regarded as an asset as of the time of its maturity, if at that time and at all subsequent periods he was insolvent and did not have, or could not procure the money. * * * [Citing cases.] "While the sureties on an administrator's bond do not guarantee his solvency or ability to pay his own debt to the estate, yet as he holds the matter in his own hands and at the time of the maturity of his debt, or afterward, becomes solvent, he is expected to do his duty and to set apart for the estate of which he is trustee, the amount of his indebtedness. * * * [Citing cases.]" The rule announced in the above quotation has been followed and applied in the recent case of In re Estate of Windhorst, 227 Iowa 808, 288 N.W. 892. Accordingly, it appears that, insofar as an executor or administrator may be indebted to the estate at the time of his qualification, it is his duty to account for such indebtedness and he will be presumed to have set aside funds for the payment thereof unless it be shown that he was insolvent and did not have and could not procure the money. In the case of Garretson v. Kinkead, 118 Iowa 383, 384, 92 N.W. 55, we point out that the indebtedness of the administrator may be determined in proceedings for an accounting under the statutes now appearing in chapter 509 of the Code, 1939, sections 12041 et seq. We have also held that the indebtedness of an executor to the estate may be determined at the hearing on his final report. In re Estate of Parker, 189 Iowa 1131, 1142, 179 N.W. 525, 528; In re Estate of Bourne, 210 Iowa 883, 886, Page 1170 232 N.W. 169, 170. Where the executor is a devisee, his indebtedness may be offset against the devise to him and where he is insolvent an offset may be had against his share in the real estate. In re Estate of Morgan, 226 Iowa 68, 69, 283 N.W. 267, 268, and cases cited therein. While there is no statutory provision for the appointment of a special administrator to determine the indebtedness of an executor, we did not question the propriety of such an appointment in the case of Dillinger v. Steele, 207 Iowa 20, 23, 222 N.W. 564, 565. In the proceedings herein, Charles S. White, who now appears as the attorney for Ross, both in his capacity as administrator and guardian, testified as follows: "If I was appointed administrator with the will annexed or were I the attorney for the one who takes that position, I will take the same position that I have taken for the past five years. I would thresh out the rest of the questions that may be necessary to determine the interests of the parties concerned and if it would be necessary I would have a special administrator appointed to prosecute that angle of the controversies." By reason of the foregoing, we are satisfied that the fact that Ross is both guardian and administrator with the will annexed does not and should not prevent appellants from securing a hearing upon their contention that Christensen is indebted to the estate. If the appointment of a special or temporary administrator is necessary to facilitate such proceedings, we are confident that Charles S. White, as attorney for the administrator and the guardian, will keep faith with his representation to the court and cooperate in such appointment. At the hearing herein, all the files, covering the litigation that has transpired in connection with this estate, were introduced in evidence. The files have been certified to us. These files were carefully reviewed on the former appeal (227 Iowa 1028, 290 N.W. 34). We do not undertake to repeat what is there set out. By reference to that opinion, it will be noted that certain debts against the estate have been established and should be refinanced to avoid further accumulations of interest, some at eight percent per annum. Ross, as administrator with Page 1171 the will annexed, was considered by the trial court to be in a better position to act promptly and effectively in this regard. We are not disposed to interfere with such decision. The dispute over the claim of indebtedness of Christensen to the estate has been injected into all of the litigation so far had, but as pointed out in our former opinion, it has yet to be asserted in a proper proceedings. Each time the court has reserved to appellants their rights to have the matter determined in proper proceedings. The same reservation was made in the order now appealed from. We have undertaken to indicate that proper proceedings can and should be had so that this troublesome dispute may be disposed of one way or the other. By reason of the foregoing, the order appealed from is affirmed. — Affirmed. CHIEF JUSTICE and all JUSTICES concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/7247152/	Judith Gail Dein, United States Magistrate Judge March 14, 2018 I. INTRODUCTION The plaintiff, Gwendolyn Holland, has brought this action against Select Portfolio Servicing, Inc. ("SPS"), a servicer of her mortgage and attorney-in-fact for MetLife Home Loans, a division of MetLife Bank, N.A. ("MetLife"), and Carrington Mortgage 273Services, LLC ("Carrington"), the subsequent servicer and holder of her mortgage. The Complaint, as amended, purports to state a claim of fraud (Count I) and violation of Mass. Gen. Laws ch. 93A (Count II). It is the plaintiff's contention that the purported assignment of the servicing rights from SPS to Carrington, and transfer of the ownership of her mortgage loan from MetLife (by SPS as attorney-in-fact) to Carrington, were void, and that JPMorgan Chase Bank, N.A. ("JP Morgan") is the actual holder of her mortgage loan. Ms. Holland's mortgage payments are current, and she is seeking to have all payments returned to her so that they can be made to the correct entity. No other entity has challenged SPS's and Carrington's involvement with Ms. Holland's mortgage loan, and JPMorgan has expressly denied still having any interest in the mortgage loan.1 This matter is before the court on the defendants' motions to dismiss brought pursuant to Fed. R. Civ. P. 8, 9(b) and 12(b)(6). For the reasons detailed herein, the Complaint fails to satisfy the pleading requirements for fraud, and otherwise fails to state a claim upon which relief can be granted. Therefore, SPS's motion (Docket No. 4) and Carrington's motion (Docket No. 15) are ALLOWED. II. STATEMENT OF FACTS The facts are derived from Ms. Holland's Complaint ("Compl.") (Docket No. 5-1)2 as well as "information found in the mortgage itself, public records, documents incorporated into the complaint by reference, and other matters susceptible to judicial notice." Wilson v. HSBC Mortg. Servs., Inc., 744 F.3d 1, 4 (1st Cir. 2014) (citation omitted).3 The Original Mortgage On December 17, 2009, Ms. Holland executed a promissory note to Drew Mortgage Associates, Inc. (the "Note") (Carr. Ex. A). The Note was secured by a mortgage of the same date to Mortgage Electronic Registration Systems ("MERS") as nominee for Drew Mortgage Associates, Inc., its successors and assigns, on Ms. Holland's home in Marlborough, Massachusetts (the "Mortgage") (Carr. Ex. B). The Mortgage was recorded with the Middlesex County (South) Registry of Deeds at Book 54034, page 564 on December 22, 2009. (Carr. Ex. B). The 2010 Assignment to MetLife On July 27, 2010, MERS assigned the Mortgage to MetLife (the "2010 Assignment") (Compl. ¶ 4; Carr. Ex. C). The 2010 Assignment was recorded with the Middlesex County (South) Registry of Deeds at Book 55116, page 341 on August 5, 2010. (Compl. ¶ 7; Carr. Ex. C). Prior to that 274time, on May 7, 2010, Ms. Holland had received a letter from MetLife notifying her that MetLife had purchased her mortgage on May 3, 2010 from Government National Mortgage Association. (Compl. ¶ 5). The Challenged 2015 Assignment to Carrington According to her Complaint, on November 2, 2012, "MetLife announced an agreement to sell MetLife Bank, N.A.'s $70 billion mortgage servicing portfolio to J.P. Morgan Chase Bank, N.A." (Compl. ¶ 8). On May 1, 2013, Ms. Holland received a letter from JPMorgan notifying her that her mortgage had "been sold or otherwise transferred or assigned" to it, and that SPS was the new servicer. (Compl. ¶¶ 9-10). This assignment was never recorded, and forms the basis of Ms. Holland's Complaint. According to Ms. Holland, SPS, MetLife, and over 100 other companies use the same address in Salt Lake City, Utah. (Compl. ¶¶ 12-15). On or about August 11, 2015, Carrington notified Ms. Holland that the servicing rights for her mortgage were being transferred from SPS to Carrington, effective August 1, 2015. (Compl. ¶ 20; Carr. Ex. D).4 On October 29, 2015, MetLife assigned Ms. Holland's Mortgage to Carrington (the "2015 Assignment"). (Compl. ¶ 16; Carr. Ex. E). The 2015 Assignment correctly identifies the original mortgagor (Gwendolyn G. Holland), the original mortgagee (MERS as nominee for Drew Mortgage Associates, Inc., its successors and assigns), the date of the original mortgage (December 17, 2009) and the recording information for the original mortgage (Book No. 54034, at Page No. 564). (Carr. Ex. E). The 2015 Assignment was executed before a Notary Public, and indicates that it was signed by Michelle Sandoval, Document Control Officer, on behalf of MetLife by SPS as its attorney in fact pursuant to its power of attorney being recorded therewith. (Id. ). The 2015 Assignment was recorded on November 20, 2015 with the Middlesex County (South) Registry of Deeds at Book 66409, page 383. (Id. ). The limited power of attorney granted by MetLife to SPS, dated June 3, 2013, was recorded at Book 66409, page 359. (SPS Ex. E; Compl. ¶ 11). The power of attorney was also executed before a Notary Public, and was signed by Angela Cavener, Limited Vice President of MetLife Bank, NA, a/k/a MetLife Home Loans, a Division of MetLife Bank, N.A. (SPS Ex. E). The Complaint The crux of Ms. Holland's Complaint is that since "MetLife had already sold its mortgage portfolio to J.P. Morgan on or about 2 November 2012, and had exited the mortgage business[,]" "MetLife could not have assigned to Carrington what it didn't have on 29 October 2015." (Compl. ¶¶ 17, 19). In her Complaint (Docket No. 5-1) Ms. Holland purports to state a claim for fraudulent misrepresentation. Specifically, she has alleged that "[i]n the case at hand, the Defendants did in fact make false representations of material fact designed to induce the Plaintiff to make mortgage payments to an entity not entitled to receive them." (Docket 5-1 at page 5 of 6). In her Amendment to Complaint (Docket No. 5-6), Ms. Holland purports to state a claim for violation of Mass. Gen. Laws ch. 93A. She has alleged as follows: 6. The actions of Defendant SPS were unfair and deceptive because SPS as Attorney-in-fact for MetLife orchestrated an Assignment of mortgage to Carrington that was factually impossible because 275MetLife had earlier assigned the subject mortgage to a different mortgagee. 7. The actions of Defendant Carrington were unfair and deceptive because through the exercise of due diligence, Carrington either would have known or should have known that the Assignment was a factual impossibility. (Docket No. 5-6 at page 4 of 4). Additional facts will be provided below as appropriate. III. ANALYSIS A. Sufficiency of Allegations of Fraud and 93A Claims "Under Massachusetts law, fraud requires that the defendant made a knowingly false statement concerning a material matter that was intended to, and did in fact, induce the plaintiff's reliance and, through that reliance, created an injury." Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 357 (1st Cir. 2013). Pursuant to Fed. R. Civ. P. 9(b), in alleging fraud "a party must state with particularity the circumstances constituting fraud or mistake." This includes "specifics about the time, place, and content of the alleged false representations." Juarez v. Select Portfolio Serv., Inc., 708 F.3d 269, 279-80 (1st Cir. 2013) (quotations and citations omitted). Conclusory allegations and references to "plans and schemes" are not sufficient. Hayduk v. Lanna, 775 F.2d 441, 444 (1st Cir. 1985). Moreover, "courts have uniformly held inadequate a complaint's general averment of the defendant's 'knowledge' of material falsity, unless the complaint also sets forth specific facts that make it reasonable to believe that defendant knew that a statement was materially false or misleading." N. Am. Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8, 13 (1st Cir. 2009) (quotations and citations omitted). In the instant case, the Complaint fails to meet any of these requirements and must be dismissed. Ms. Holland contends only that it was impossible for the 2015 Assignment to be viable because of the prior assignment to JPMorgan, and therefore the defendants are liable for fraud. She does not allege any facts from which the court can conclude that SPS or Carrington made knowingly false statements. Nor does she identify what statements she relied on, how she relied on them, or that she suffered any injury. There is no assertion that she even saw the 2015 Assignment before this litigation, and there is no assertion that she has been injured, especially since her mortgage payments have been appropriately credited to her mortgage debt. The conclusory allegation that the "Defendants did in fact make false representations of material fact designed to induce the Plaintiff to make mortgage payments to an entity not entitled to receive them" is insufficient to state a claim for fraud. (See Docket 5-1 at page 5 of 6). See Clark v. Mortg. Elec. Reg. Sys., Inc., 7 F.Supp.3d 169, 181-82 (D.R.I. 2014) (general averments that a "mortgage is void due to fraud" and there were "deceptive practices regarding the false filing of documents" are insufficient to satisfy the pleading requirements for fraud). For the same reasons, Ms. Holland's claim that the defendants engaged in unfair and deceptive practices must be dismissed. While a claim of misrepresentation may, in certain circumstances, support a finding of a violation of Mass. Gen. Laws ch. 93A, here the plaintiff has failed to properly assert a misrepresentation claim. Compare Nota Const. Corp. v. Keyes Assoc., Inc., 45 Mass. App. Ct. 15, 21, 694 N.E.2d 401, 406 (1998). "A claim under Chapter 93A that involves fraud is subject to the heightened pleading requirement" under Fed. R. Civ. P. 9(b). 276Martin v. Mead Johnson Nutrition Co., No. 09-11609-NMG, 2010 WL 3928707, 3 (D. Mass. Sept. 30, 2010) (citation omitted). For the reasons detailed above, the plaintiff has failed to meet that standard. Moreover, she has not alleged facts which rise to level of a 93A violation. See Woods, 733 F.3d at 358 (to survive a motion to dismiss, a 93A claim must allege something with an "extortionate quality of unfairness and deceptiveness" beyond a good faith dispute or breach of contract (internal quotations and citation omitted) ). Therefore, Ms. Holland's 93A claim must be dismissed. B. The 2015 Assignment is Valid The crux of Ms. Holland's Complaint is that Carrington did not acquire proper title in 2015 in accordance with the assignment of her mortgage to Carrington from Met Life. For the reasons detailed herein, she has failed to state a claim under Fed. R. Civ. P. 12(b)(6), as a result of which her Complaint will be dismissed with prejudice. 1. Standard of Review Motions to dismiss under Rule 12(b)(6) test the sufficiency of the pleadings. When confronted with such a motion, the court accepts as true all well-pleaded facts and draws all reasonable inferences in favor of the plaintiff. See Cooperman v. Individual Inc., 171 F.3d 43, 46 (1st Cir. 1999). The court may also consider "implications from documents attached to or fairly incorporated into the complaint ... facts susceptible to judicial notice ... [and] concessions in plaintiff's response to the motion to dismiss." Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55-56 (1st Cir. 2012) (internal quotations and citations omitted). As the First Circuit has explained, in considering the merits of a motion to dismiss, the court proceeds in two steps. First, we "isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements." Id. at 55. Second, we "take the complaint's well-pled (i.e. , non-conclusory, non-speculative) facts as true, drawing all reasonable inferences in the pleader's favor, and see if they plausibly narrate a claim for relief." Id. Dismissal is only appropriate if the complaint, so viewed, fails to allege "a plausible entitlement to relief." Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955, 1967, 167 L.Ed.2d 929 (2007) ). "Plausible ... means something more than merely possible[.]" Schatz, 669 F.3d at 55. "The bottom line is that the combined allegations, taken as true, must state a plausible, not merely conceivable, case for relief." Carrero-Ojeda v. Autoridad de Energia Electrica, 755 F.3d 711, 718 (1st Cir. 2014) (internal citations and quotations omitted). "Engaging in this plausibility inquiry is 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.' " Germanowski v. Harris, 854 F.3d 68, 72 (1st Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) ). Applying these principals to the instant case mandates that the Complaint be dismissed. 2. Standing Under Massachusetts law, "a mortgagor has standing to challenge a mortgage assignment as invalid, ineffective, or void (if, say, the assignor had nothing to assign or had no authority to make an assignment to a particular assignee)." Culhane v. Aurora Loan Servs. of Nebraska, 708 F.3d 282, 291 (1st Cir. 2013). That is because a "challenge of this sort," if successful, would refute an assignee's status as a mortgagee. Id. On the other hand, "a mortgagor does not have standing to challenge shortcomings in an 277assignment that render it merely voidable at the election of one party but otherwise effective to pass legal title." Id. See also Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202, 205-06 & n.7, 7 N.E.3d 1113, 1116 & n.7 (2014). In the instant case, SPS contends that Ms. Holland's claims are only that the 2015 Assignment was voidable and, therefore, that she lacks standing to challenge the Assignment. This court disagrees, and concludes that Ms. Holland has standing to assert her claims. SPS contends that Ms. Holland can only be claiming that the 2015 Assignment is voidable since MetLife undeniably held title to the mortgage in connection with the 2010 Assignment, and the 2015 Assignment was binding on MetLife since it was signed by a designated officer before a notary public, and met the requirements of Mass. Gen. Laws ch. 183, § 54B.5 (SPS Mem. (Docket No. 5) at 7). Therefore according to SPS, Ms. Holland cannot be asserting that MetLife "never possessed legal title," so that its purported assignment to Carrington was void. However, the fact that MetLife at one point had undeniably valid title does not end the inquiry. Ms. Holland is claiming that MetLife divested itself of its ownership interest before the 2015 Assignment, and, therefore, had nothing to assign in 2015. Thus, she is challenging Carrington's status as mortgagee, and arguing that "no valid transferable interest ever exchanged hands." Woods, 733 F.3d at 354. This is a claim that an assignment is void-the type of argument a mortgagor has standing to assert. Id.; see also Wilson v. HSBC Mortg. Servs., Inc., 744 F.3d 1, 10 (1st Cir. 2014) (mortgagors have standing to challenge "the foreclosing entity's status as mortgagee of their property."). 3. The 2015 Assignment From MetLife To Carrington Was Valid While Ms. Holland has standing to assert her claim that the 2015 Assignment was not valid, her claim fails on the merits. To establish a claim of ownership of a mortgage, an entity may rely on "a chain of recorded assignments[.]" Woods, 733 F.3d at 356. "[T]he key consideration is whether the assignor of the mortgage [MetLife] held the record legal interest in the mortgage at the time of the assignment; it is immaterial that another entity [e.g. JPMorgan] might hold an unrecorded equitable or beneficial interest in the mortgage." Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 504 n.13, 11 N.E.3d 633, 639 n.13 (2014) (rejecting argument that "MERS-by the date of the assignment-already had assigned the mortgage to someone else (and therefore had nothing to transfer to the bank)."). In the instant case, the assignments of record go from MERS to MetLife to Carrington. That is sufficient to defeat the plaintiff's claim that the 2015 Assignment is void. Moreover, the 2015 Assignment satisfies the requirements of Mass. Gen. Laws ch. 183, § 54B, and is therefore binding on the assignor. See note 5, supra. "An assignment binding on the assignor is not, by definition, void." Wilson, 744 F.3d at 13. For all these reasons the plaintiff has failed to state a claim that Carrington is not the record owner of her mortgage. Finally, this court notes that Ms. Holland has not separately challenged SPS's role as servicer of the loan, or the naming of Carrington as the subsequent servicer of the loan. She was apparently notified of the changes in servicers. There is no requirement that servicing agreements be *278recorded. Thus, there is no basis for Ms. Holland's contention that she was somehow obligated to make payments to the wrong entity. IV. CONCLUSION For all the reasons detailed herein, the motions of Select Portfolio Servicing, Inc. and Carrington Mortgage Services, LLC to dismiss (Docket Nos. 4 and 15, respectively) are ALLOWED. The Complaint, as amended, is dismissed with prejudice. Although not part of the record on the motions to dismiss, and not necessary to the instant decision, this court found in its Memorandum of Decision and Order on plaintiff's Motion to Withdraw Offer to Dismiss that JPMorgan has disclaimed any interest in the note and mortgage, and has confirmed that any interest it had at any time has been transferred to Carrington. That Memorandum of Decision and Order contains additional facts relating to the procedural history of this case. Ms. Holland filed an Amendment to Complaint (Docket No. 5-6) which contains facts relating to her claim under Mass. Gen. Laws ch. 93A. This will be cited as "Am. Compl. ¶ ___." In addition to being attached to SPS's memorandum (Docket No. 5), copies of the Complaint and Amendment are also included in the state court record, which can be found at Docket No. 7. Copies of relevant documents are attached to the Memorandum of Law in Support of Select Portfolio Servicing, Inc.'s Motion to Dismiss (Docket No. 5) ("SPS Ex. ___") and Carrington's Memorandum of Law in Support of Motion to Dismiss (Docket No. 16) (Carr. Ex. ___"). Since Ms. Holland's mortgage payments are current, she apparently made the payments to SPS and then to Carrington, as directed. Mass. Gen. Laws ch. 183, § 54B provides that if an assignment is executed before a notary public by a designated officer or other authorized signatory of the entity holding the mortgage, the assignment "shall be binding upon such entity and shall be entitled to be recorded...."	01-03-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/4042777/	NUECES COUNTY COURTHOUSE CHIEF JUSTICE 901 LEOPARD, 10TH FLOOR ROGELIO VALDEZ CORPUS CHRISTI, TEXAS 78401 361-888-0416 (TEL) JUSTICES 361-888-0794 (FAX) NELDA V. RODRIGUEZ DORI CONTRERAS GARZA HIDALGO COUNTY GINA M. BENAVIDES ADMINISTRATION BLDG. GREGORY T. PERKES NORA L. LONGORIA Court of Appeals 100 E. CANO, 5TH FLOOR EDINBURG, TEXAS 78539 956-318-2405 (TEL) CLERK DORIAN E. RAMIREZ Thirteenth District of Texas 956-318-2403 (FAX) www.txcourts.gov/13thcoa February 5, 2015 Hon. Benigno Trey Martinez Hon. Raul Medina Martinez, Barrera & Martinez Attorney at Law 120 E. Van Buren 3101 N. Jackson Road Brownsville, TX 78520 McAllen, TX 78501 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * Hon. Ricardo Pumarejo Jr. Kittleman Thomas, PLLC 4900-B N. 10th Street McAllen, TX 78504 * DELIVERED VIA E-MAIL * Re: Cause No. 13-13-00552-CV Tr.Ct.No. C-361-11-B Style: Nolana Open MRI Center, Inc. v. Guillermo R. Pechero M.D.Ruben D. Pechero M.D. Maplestar Orthopedics, P. A. Dear Sir/Madam: The appeal in this cause is REINSTATED as of the date of this letter, and the appellate timetables will commence accordingly. Very truly yours, Dorian E. Ramirez, Clerk DER:ch	01-03-2023	09-28-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431900/	I find myself unable to agree with the majority opinion and therefore respectfully dissent. The opinion says: "Much of the damage to plaintiffs' original farm had already been caused by the separation of the land in the north portion by the railroad right of way through the land long prior to the time of these condemnation proceedings. It is, therefore, clear that the damage to plaintiffs' farm by the construction of the highway is not as great as it would have been had the farm been in one entire tract at the time of the condemnation for the highway." With this statement I cannot agree. In looking at the plat set out, one finds that the projection of Highway 88 thru the farm served to divide most of the fields which had theretofore been capable of being farmed without the inconvenience of point rows. It was not the railroad but the highway that divided the land into these small, separate pieces. To get a fair idea of the damage one need but look at the plat to see the manner in which the highway divided the land. The majority opinion emphasizes the fact that there were only 9.63 acres of unimproved land taken for highway purposes. I quote: "It is our conclusion, however, that a verdict of $6,000 for the unimproved 9.63 acres, under the record in this case, is grossly excessive and should be reduced." The number of acres the highway commission takes, in my judgment, is but one of the elements of damage to be considered. The writer has had some experience in farming and knows, as everyone must know, that when you divide a tract of land into small parts the problem of farming becomes a great deal more difficult and more expensive. The hazard of crossing a paved highway in conducting farming operations is well known, and this court can take judicial notice of the fact that there will be much traffic, at a high rate of speed, along this highway. The appellees introduced six witnesses, men familiar with land values and with the farm involved in this action. Appellant introduced five witnesses. Page 685 From appellants' brief I quote the following two statements: "The average difference in value taken from the testimony of all of the plaintiffs' witnesses, amounts to $10,276.66." "The average difference in value, or damage to the plaintiffs' farm as testified to by the defendant's witnesses, was $3,485.80." An examination of the evidence of these various witnesses shows that they did not exactly agree in regard to the value of the farm before the building of the highway and after its construction. This is but natural. After all, these witnesses are testifying to their own opinions. Plaintiffs introduced witnesses who testified that the land before the construction of the highway was worth $110 per acre, some $105, some $100; that after the construction of the highway the land was worth $60 and $65 an acre. Some of the defendant's witnesses testified that the land before the construction was worth $100 per acre and one placed it as low as $75. Some of the defendant's witnesses testified that after the construction of the highway the land was worth $88 per acre and some placed it as low as $60. One of defendant's witnesses testified that the damage was $3,756, another that it was $2,700. So we find there was evidence before the jury, evidence of defendant's own witnesses, upon which the jury could have found the land was worth $100 per acre before the construction of the highway and only $60 per acre afterwards, or a total damage in excess of the amount allowed. Therefore, it seems to me that the record in this case shows the verdict arrived at by the jury, instead of being the result of passion and prejudice, was the result of careful and mature deliberation, based upon competent evidence. The opinion cites three cases. Let us turn to them. The first is that of Jenkins v. State Highway Commission,208 Iowa 620, 224 N.W. 66. In that case the highway crossed the land. It did not destroy any buildings and apparently did not divide the farm into small pieces. Not quite 14 acres were used. The jury returned a verdict of $20,000, which is on a basis of a little more than $1,400 an acre; in other words, more than twice the amount allowed in the case at bar. In the Jenkins case there was no showing of any damage other than the direct crossing of the farm by the highway. It is quite different Page 686 to say that an allowance of $1,400 per acre is excessive than that $600 an acre is excessive in the case at bar, where the highway cut the land into various parts. Parrott v. Chicago Railway Company, 127 Iowa 419, 103 N.W. 352, was a case in which the railroad company was widening the right of way. It was not a new crossing of the land but simply the taking of a small fraction of an acre. This court did not reverse the case but rather reduced the amount. In the case of Youtzy v. City of Cedar Rapids, 150 Iowa 53, at page 57, 129 N.W. 351, 352, Justice Weaver wrote the opinion, saying: "The amount allowed the plaintiff would seem to be liberal, but, in view of all the evidence, it is not so large as to clearly indicate a verdict influenced by passion and prejudice," and affirmed the decision of the lower court. I think the rule which has been adopted by this court, of reversing the case where the verdict is clearly excessive, is a good one. Under our procedure in cases of this kind we leave it to the jury to fix the amount of the damage, and this court should not interfere with the jury's verdict unless it is clearly shown that it is excessive and is based upon passion and prejudice. In the case at bar no such record confronts us, as I read it, and I would affirm the verdict.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431690/	[1] Plaintiff was surety on the bond of E.E. Phelps, as administrator of the estate of Ralph V. Taft. While acting as administrator of that estate, he was also the acting and qualified administrator of the William Schliep estate. In January, 1931, Phelps, as administrator of the Taft estate, wrongfully withdrew $2,000 from the Taft estate, confiscated it to himself as administrator of the Schliep estate, and, as such, wrongfully used and applied the same to the benefit of the Schliep estate by paying it to Lombard College on a bequest made to that college under the will in the Schliep estate. Phelps resigned as administrator in both estates in July, 1931. J.P. Budde was then appointed new administrator of the Taft estate, and J.V. Gray was appointed new administrator of the Schliep estate. Phelps's final report was disapproved, and the court adjudged him owing the Taft estate the $2,000 in question, and he was ordered to pay the same to the new administrator. On his failure to pay the amount so adjudged against him, the new administrator Budde, by order of court, brought suit against the surety company to recover the same. Judgment was then also obtained against the plaintiff herein as surety on Phelps's bond. This judgment was paid in full by the plaintiff surety, and in September, 1932, plaintiff filed its petition in this action asking to be subrogated to the rights of Phelps, the former administrator of the Taft estate, against the new administrator of the Schliep estate. Originally other claims were made and other parties made defendants. All other parties and claims were otherwise disposed of, and the sole question now remaining relates to plaintiff's claim for subrogation to all rights of J.P. Budde, as administrator of the Taft estate against the William Schliep estate, and the present administrator thereof. Page 3 The foregoing facts are substantially those alleged in the petition. The defendant Gray, administrator of the William Schliep estate, filed a motion to dismiss plaintiff's petition on several grounds, all of which may be reduced to the one general ground, that the allegations of the petition failed to establish the right of subrogation for and on behalf of plaintiff. The lower court sustained the motion to dismiss, and the sole question for review is the ruling of the lower court in holding that the surety upon the Phelps bond is not entitled to subrogation of the rights of the Taft estate against the Schliep estate and the administrator thereof, for the funds wrongfully paid out to one of the legatees of the Schliep estate as alleged. When Phelps was appointed administrator of the Taft estate, he qualified by giving a bond signed by himself as principal, and the American Surety Company as surety, obligating themselves to the Taft estate for any loss occasioned by the administrator's defaults. It is conceded that, before the payment of this claim by plaintiff, the Taft estate had a right to sue either the Schliep estate for such moneys or the surety on Phelps's bond as administrator of the Taft estate. The plaintiff contends that, having paid the judgment against it on the administrator's bond, it reimbursed the Taft estate with the funds wrongfully taken therefrom, and thereby became subrogated to all rights of the Taft estate against the Schliep estate. This claim is made under the equitable doctrine of subrogation. It is appellee's claim, however, that the administrator of the Taft estate could have elected to pursue his remedy on the bond or his remedy against the Schliep estate. Having chosen the remedy on the bond, the payment of such obligation extinguished its right to sue the Schliep estate, and by reason thereof no right of subrogation exists. Plaintiff's claim is based upon the equitable doctrine of subrogation. "Subrogation is an equity called into existence for the purpose of enabling a party secondarily liable, but who has paid the debt, to reap the benefit of any securities or remedies which the creditors may hold as against the principal debtor and by the use of which the party paying may thus be made whole. This equity may be used to enforce the equity of exoneration as against the principal debtor, or of contribution as against others who are in the same rank." Bispham's Principles of Equity (9th Ed.) section 335. Page 4 Subrogation is said to be "the creature of equity, and is so administered as to secure real and essential justice without regard to form, and is independent of any contractual relations between the parties to be affected by it. It is broad enough to include every instance in which one party pays a debt for which another is primarily answerable, and which, in equity and good conscience, should have been discharged by the latter; but it is not to be applied in favor of one who has, officiously and as a mere volunteer, paid the debt of another, for which neither he nor his property was answerable, * * * and it is not allowed where it would work any injustice to the rights of others." Sheldon on Subrogation, section 1. This doctrine is also recognized by section 11667 of the Code, which provides: "When the principal and surety are liable for any claim, such surety may pay the same, and recover thereon against all liable to him. If a judgment against principal and surety has been paid by the surety, he shall be subrogated to all the rights of the creditor, and may take an assignment thereof, and enforce the same by execution or otherwise, as the creditor could have done." "Subrogation, an equitable doctrine taken from the civil law, is broad enough to include every instance in which one party pays a debt for which another is primarily answerable, and which in equity and good conscience should have been discharged by the latter, so long as the payment was made either under compulsion or for the protection of some interest of the party making the payment, and in discharge of an existing liability." Gerseta Corporation v. Equitable Trust Co., 241 N.Y. 418, 150 N.E. 501, 43 A.L.R. 1320. A surety for an administrator, executor, or trustee will be subrogated to the rights and remedies of creditors or beneficiaries against the principal, or his property. 60 C.J. 773, sec. 83, note 23; Weyant v. Utah Sav. Trust Co., 54 Utah 181, 182 P. 189, 9 A.L.R. 1119. "A surety, on paying the debt of the principal, is entitled to be subrogated to the rights of the creditor in all or any of the securities, means, or remedies which the creditor has for enforcing payment against his principal." 25 R.C.L. 1327; 60 C.J. 740; Kent v. Bailey, 181 Iowa 489, 164 N.W. 852; Heuser v. Sharman, 89 Iowa 355, 56 N.W. 525, 48 Am. St. Rep. 390; Millowners' Mut. Page 5 Life Ins. Co. v. Goff, 210 Iowa 1188, 232 N.W. 504; Randell v. Fellers, 218 Iowa _____, 252 N.W. 787; Leach v. Com. Sav. Bank,205 Iowa 1154, 213 N.W. 517; City v. Love, 31 Iowa 119; Searing v. Berry et al., 58 Iowa 20, 11 N.W. 708; Bankers Surety Co. v. Linder, 156 Iowa 486, 137 N.W. 496; Jackson Co. v. Boylston Mut. Ins. Co., 139 Mass. 508, 2 N.E. 103, 52 Am. Rep. 728; Gerseta Corp. v. Equitable Trust Co., 241 N.Y. 418, 150 N.E. 501, 43 A.L.R. 1320; Pittsburgh-Westmoreland Coal Co. v. Kerr, 220 N.Y. 137, 115 N.E. 465. As tending to show that this is the universal rule in America, see cases cited in 25 R.C.L. 1327, note 1. In Kent v. Bailey, supra, loc. cit. 493, we said: "`Subrogation is the substitution of one person in place of another, whether as a creditor or as the possessor of any other rightful claim, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities.' Jackson Co. v. Boylston Mut. Ins. Co., supra. See Heuser v. Sharman, supra. It has been styled a legal fiction whereby an obligation which has been discharged by a third person is treated as still subsisting for his benefit, so that by means thereof one creditor is substituted to the rights, remedies, and securities of another. Ætna Life Ins. Co. v. Middleport, 124 U.S. 534, 8 S. Ct. 625, 31 L. Ed. 537. * * The books agree that subrogation is not founded on contract or privity or strict suretyship, but is born of equity, and results from the natural justice of placing the burden where it ought to rest. The remedy depends upon the principles of justice, equity, and benevolence to be applied to the facts of the particular case. It is of equitable origin, adopted to compel the ultimate discharge of a debt or obligation by him who in good conscience ought to pay it. * * * The remedy is to be administered according to the established rules of equity jurisprudence. Sheppard v. Messenger, 107 Iowa 717, 77 N.W. 515; Seieroe v. Homan,50 Neb. 601, 70 N.W. 244." In the recent case of Randell v. Fellers, supra, we said: "The doctrine is universally applied in behalf of a surety who has been compelled to pay the debt of his principal." Appellee claims, however, that, as the administrator of the Taft estate, before commencing any action against the surety company, had a right to elect to bring his action to recover the loss against Page 6 either the estate of William Schliep, deceased, or against the surety on the bond, and having elected the remedy against the surety on the bond, all other rights have been extinguished. The doctrine of equitable subrogation, however, is subject to the limitation that it will not apply where the equities are not in favor of the surety, because the doctrine is always used for the promotion of justice and the prevention of inequitable results. It will never be enforced, when doing so would be inequitable, or where it would work injustice to others having equal equities. Makeel v. Hotchkiss, 190 Ill. 311, 60 N.E. 524, 83 Am. St. Rep. 131, 37 Cyc. 370. It necessarily follows that the equities of one seeking subrogation must be greater than those of him against whom subrogation is sought. Ft. Dodge B. L. Assn. v. Scott, 86 Iowa 431, 53 N.W. 283. The doctrine of subrogation never interferes with equal or superior rights of others. Vaughan v. Jeffreys, 119 N.C. 135, 26 S.E. 94. Appellee, in support of its contention that the debt in question has been extinguished by the action of the new administrator of the Taft estate, in recovering from the surety, cites Baker v. American Surety Co., 181 Iowa 634, 159 N.W. 1044, 1046, and National Surety Co. v. Bankers Trust Co., 210 Iowa 323, 228 N.W. 635. A careful reading of these cases, however, fails to show such a doctrine. In the Baker case the surety company was surety upon the bond of the treasurer of the "Buxton Local Union". The treasurer of that union had deposited the funds of his union in the Buxton Savings Bank. These funds were wrongfully withdrawn by the treasurer upon forged orders. In that situation the union had a remedy either against the surety on the bond or against the Buxton Savings Bank because of wrongfully paying out funds on forged orders. The surety sought to be subrogated to the rights of the union against the Buxton Savings Bank. That case was in fact decided upon equitable principles. The action of the bank was not, in itself, dishonest. The money was paid out by it upon the forged orders of the treasurer, in the belief they were genuine. The court there said: "The wrongful diversion of these moneys was induced by the dishonest conduct of Brown to whom the money was paid, and were the bank held for the payment of the funds dissipated it would have a cause of action against Brown therefor. The plain difference in the situation of the two is that were recovery had by the local union Page 7 against Brown he could not recoup in an action against the bank, whereas the bank, if compelled to restore to the union the moneys paid on the forged instruments might demand reimbursement from Brown and upon refusal recover judgment against him." In that case there could have been no recovery by Brown against the bank because of his own wrongful act in inducing the bank to pay out the money. In the case at bar the administrator of the Taft estate had a right to sue the Schliep estate for the money received by that estate. In the Baker case there were no equities in favor of the treasurer as against the bank. Therefore it was held there could be no subrogation. In the case at bar the equities are in favor of the administrator of the Taft estate as against the Schliep estate. There would be no loss to the Schliep estate by requiring it to pay the funds received by it from the administrator of the Taft estate. The Baker case is not authority for the doctrine that the cause of action of the obligee in the bond against the Schliep estate was extinguished by the payment of the forgeries by the surety company. Nor is the National Surety Co. v. Bankers Trust Co., supra, authority for the doctrine contended for. In that case there was an assignment of the obligee's rights therein to the surety company, and the right of subrogation was considered immaterial. [2] Appellee also contends that plaintiff had no right of subrogation because it was a paid surety. It is the general rule as expressed by the greater weight of authority that, although its business is that of writing surety bonds for compensation, nevertheless, "when it issued the bond it became a surety and the fact that it was a compensated surety is immaterial." The rights of a surety are to be determined by its legal status as a surety and not by the reason which may have induced it to enter into that status. In other words, the fact that the defendant was a surety for compensation did not deprive it of its rights under the rules governing the relation of principal and surety. 25 R.C.L. 1327; 21 R.C.L. 1162; Wasco County v. New England Equitable Ins. Co., 88 Or. 465, 172 P. 126, L.R.A. 1918D 732, Ann. Cas. 1918E 656; 19 Cyc. 893. There is no distinction in this respect between compensated and gratuitous sureties. The question as to what induced the surety to assume the obligation cannot be considered in determining his rights. 25 R.C.L. 1327; Lewis' Adm'r v. U.S. Fidelity Guaranty Co., 144 Ky. 425, 138 S.W. 305, Ann. Cas. 1913A 564. *Page 8 A surety engaged in suretyship as a business enterprise, after being required to pay its obligation, as such, on a bond, whether compensated or not, is entitled to the benefits of the doctrine of "equitable subrogation" to the same extent as a gratuitous surety. 60 C.J. 742. The reason for this rule is that: "A court of equity grants the right of subrogation because the surety has paid the debt of the principal, and the right of subrogation is not dependent upon whether the surety was or was not paid to sign the bond. It is enough that the surety was obliged to pay and did pay the debt." Wasco County v. New England Equitable Ins. Co.,88 Or. 465, 172 P. 126, 128 L.R.A. 1918D 732, Ann. Cas. 1918E 656; U.S. Fidelity Guaranty Co. v. Rathbun, 160 Minn. 176, 199 N.W. 561; In re Dutcher (D.C.) 213 F. 908; State v. Kilgore State Bank, 112 Neb. 856, 201 N.W. 901. Without continuing the discussion further, it is sufficient to say that the surety company comes within the equitable doctrine of subrogation, and by that doctrine is entitled to subrogation to the rights of the administrator of the Taft estate, against the administrator of the Schliep estate for the funds of the Taft estate wrongfully paid to and used in and for the Schliep estate. There can be no question but that under the Iowa statute above referred to, and the doctrine of equitable subrogation, the plaintiff was entitled to all the rights of the creditor, and could enforce them in the same manner in which they could have been enforced by the creditor. For these reasons we believe the motion to dismiss should have been overruled. The case is therefore hereby reversed and remanded for further proceedings in harmony herewith. — Reversed and remanded. CLAUSSEN, C.J., and STEVENS, MITCHELL, ANDERSON, KINDIG, and ALBERT, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431694/	During the year 1913, there was organized in Harrison County a drainage project known as Upper Soldier Drainage District No. 1. It contained two parts, a main ditch and a lateral known as "A." Those ditches therein were duly and timely constructed in a northerly and southerly direction, and the 1. DRAINS: cost of the main ditch was spread over all assessment: the property within the district, according to duty to an established ratio of benefits; while the follow expense of the lateral was only partly existing assessed to the lands especially benefited class- thereby, and the balance thereof was taxed ification. against all the land in the district, regardless of the classification of benefits. Whether right or wrong, that is the way it was done. Here it is important to note that the Chicago Northwestern Railway right of way crosses the main ditch where the lateral joins it; so the north end of the improvement was on the west side of the railroad, and the south part to the east thereof. Said portion north of the railroad is the lateral, and that south thereof is the main ditch. On May 8, 1925, the board of supervisors passed a resolution authorizing repairs on Lateral A at a cost of $3,512.54. For the purpose of those repairs, a new assessment was made by the board, according to the ratio of the original benefit classification relating to the lateral. Accordingly, the auditor spread the entire cost thereof against the lands named as benefited by the lateral, consistent with the established standard of classification. In other words, the new assessment was to be in harmony with the fixed ratio of benefits for the lateral, rather than against the other property within the district, which, as shown by the original classification, was benefited by the main ditch only. Page 1334 Appellees have land included within the territory benefited by the lateral. Hence, the new assessment affects their realty. Consequently, the present injunction was sought by them to prevent the collection of that tax; and because the application was sustained, the appellants now ask a reversal. There are several propositions presented for consideration, but only one is material to this discussion. This relates to the method of assessing benefits in the district: that is, whether or not all the lands in the district, or only appellee's property and that of those similarly situated, were classified as the recipients of the benefits from Lateral A. Obviously, under the record here presented, the original cost of Lateral A was assessed against certain designated property in the district, including that of appellees. However, such apportionment did not embrace all the lands within the district. To repeat the thought in another way, the cost of Lateral A on the original project was declared, under the classification of benefits established, to affect appellees' and certain other lands adjacent to and in the vicinity of that specific part of the ditch. But that initial classification did not include the remainder of the acreage within the district. All the property in the district was found benefited in some ratio by the main ditch. Nevertheless, as before said, it was not all thus declared to be benefited by the lateral. The costs of the main ditch and the lateral were estimated, incurred, and expended separately; and likewise, assessments to meet those expenses were individually based upon distinct classifications of benefits. No change in the said classification has been made since that time. Therefore, until there is a change, the assessment, if made at all, must be upon the ratio of the original classification. Section 7466 of the 1924 Code provides: "This classification when finally established shall remain as a basis for all future assessments connected with the objects of said levee or drainage district, unless the board for good cause shall authorize a revision thereof." And Section 7476 continues: "The classification as finally adopted shall remain the basis of all future assessments for the purpose of said district unless revised by the board in the manner provided for reclassification." Page 1335 See, also, Sections 7492 and 7494 of the same Code. Manifestly, the Harrison County board, when authorizing Lateral A's repair, attempted to follow the mandates of the above and foregoing legislation. Such part of the resolution which is material reads in this way: "Second: That the original classification and apportionment is equitable and that there is no reason to change the same. "Third: The said drainage district is indebted in the cost of construction and repairs — and current expenses in the sum of approximately $3,512.54, and in order to pay outstanding indebtedness which has been legally incurred it is necessary to levy an assessment upon the lands within said drainage district as established in the sum of approximately $3,512.54 or 73 per cent of the original assessment in said drainage district. "Fourth: There is hereby levied upon the lands within said drainage district an assessment of approximately $3,512.54 or 73 per cent of the original assessment of benefits (for Lateral A). "Fifth: The county auditor of Harrison County is directed to extend said tax so levied and assessed upon the lands within said drainage district * * * in accordance with the established classification and in the same proportion that the original cost of construction was levied and assessed in said drainage district, and the county auditor is hereby directed to certify said tax so levied and assessed to the county treasurer to be by him collected." Plainly, therefore, the board of supervisors did not reclassify the benefits accruing to the lands because of the main ditch or the lateral. If, then, any assessment at all was authorized, it was one made in accordance with the original classification for the improvement of Lateral A, and, as before suggested, only part of the land within the district was included therein. Authorization for assessments to repair may be found in the 1924 Code, Sections 7556 to 7562, both inclusive. Thereupon, the board of Harrison County found its right to initiate the new work on Lateral A. Yet the assessment, whether for repairs or otherwise, must be made by the board, and no one else, and when thus made, the statutory plan shall be followed. As before suggested, this requires that, until there has been a re-classification, Page 1336 the original must be used. Resultantly, the auditor and treasurer were confined to the resolution aforesaid. They had no authority except that therein indicated. Any assessment, then, made in disregard of that resolution and the classification of benefits for assessment purposes would be a nullity. Contention, on the other hand, is made by appellees to the effect that the original assessment was spread against all the land in the district, regardless of its association with Lateral A, and therefore the present tax should be made upon the same basis. Explanation for appellees' claim in this regard may be furnished by considering the improvement's original cost and the allocation thereof between the main ditch and the lateral. Illustration will aid the understanding. $48,638.40 was the total original cost of the entire project, including both the main ditch and Lateral A. Of this sum, approximately $8,800 arose through Lateral A's construction. Notwithstanding those facts, the board of supervisors, in levying the assessment, apparently disregarded the original classification of benefits, and spread about $4,000 of Lateral A's cost over the entire district: that is to say, $4,000 of the expense belonging to Lateral A was subtracted therefrom and added to the cost of the main ditch. Wherefore, the separate classification of benefits belonging to the main ditch and Lateral A was disregarded or overlooked, and an arbitrary distribution of financial outlay was made. Thus, of the total sum of $8,800 rightfully belonging to Lateral A, only $4,854.48 was actually placed upon the lands classified as receiving benefits therefrom. Through this handling of the assessment in disregard of the law requiring the tax to be apportioned according to the benefit classification, appellees profited to the extent of approximately $4,000, as aforesaid. So at this time, when the question of assessment is again brought forth to meet the costs of the repairs, the appellees argue, in effect, that, because an error was made in the first instance, it should again occur. These appellees are apparently confused between assessment and classification. Because of this, they argue that $4,000 of the original Lateral A expense was assessed against the entire district. Following that error, they argue that part of the present expenditure similarly should be spread over the entire district, regardless of the fact that it grows out of Lateral A only, and certain property less than the whole is separately and specifically classified as being Page 1337 benefited thereby. Clearly, this is not the law. A statutory distinction is made between assessment and classification. For instance, Section 7465 of the 1924 Code declares: "* * * they [the commissioners] shall begin to inspect and classify all the lands within said district, or any change, extension, enlargement, or relocation thereof in tracts of forty acres or less according to the legal or recognized subdivisions, in a graduated scale of benefits to be numbered according to the benefit to be received by each of such tracts from such improvement, and pursue said work continuously until completed and, when completed, shall make a full, accurate, and detailed report thereof and file the same with the auditor. The lands receiving the greatest benefit shall be marked on a scale of one hundred, and those benefited in a less degree with such percentage of one hundred as the benefits received bear in proportion thereto. They shall also make an equitable apportionment of the costs, expenses, fees, and damages computed on the basis of the percentages fixed." This classification shall remain the basis for all assessments. Sections 7466 and 7476, supra. Furthermore, Section 7561 of the same Code specifies that the expense for repairing certain open ditches shall be assessed upon the same basis as that of the original cost therefor; while the expense of repairing laterals is to be placed against the land especially affected thereby. Parenthetically, it is to be noted that the repairs contemplated involved the cleaning out of Lateral A, in order to restore its original sufficiency. Associated with the foregoing statutory enactments is Section 7477, which reads: "When the board has finally determined the matter of assessments of benefits and apportionment, it shall levy such assessments as fixed by it upon the lands within such district * * ." Assessment, then, is not classification, but rather, it is the act of spreading the cost to be raised according to and in proportion with the classification thereof. When thus considered, appellees' theory is wrong, and the plan adopted by the board and county auditor undeniably must be right. Necessarily, then, it is the duty of the county auditor, within the purview of the Page 1338 statutes aforesaid, and by virtue of the original classification of benefits, to assess the cost of this repair against the appellees and other property benefited by Lateral A. Beyond a peradventure of a doubt, this was the purpose of the supervisors, as evidenced by said quoted resolution. Mathematical demonstration, as well as the language of the resolution itself, is indicative of this. The amount to be raised at this time is $3,512.54; while the total of the original assessment for Lateral A actually borne by appellees and those similarly benefited was $4,854.48. 73 per cent of that would produce approximately the fund desired. Evidently that was the intent of the county officials, and such purpose was reached in strict accordance with the drainage law. The board of supervisors manifestly had jurisdiction of the subject-matter, and the auditor and the treasurer, as well, were legally authorized to act. None of these officials, then, was proceeding without jurisdiction. An injunction, therefore, was not the proper remedy. See Section 7527, 2. DRAINS: Code, 1927, and Petersen v. Sorensen, 192 assessments: Iowa 471. We do not decide whether or not the injunction so-called Lateral A as a matter of fact is a to restrain "lateral," because it was found to be such irregular- (after due notice to all concerned) by the ities. tribunal having jurisdiction so to do at the time of the district's organization and classification thereunder for assessment purposes. So, until there is a reclassification, the original must stand. Wherefore, the injunction should be, and hereby is, dissolved, and the judgment and decree of the district court reversed. —Reversed. ALBERT, C.J., and EVANS, FAVILLE, and GRIMM, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431696/	Divers errors are relied upon by the appellant for a reversal, but, for the sake of brevity, these errors may be classified under three propositions: (1) Prejudicial statements elicited by the prosecuting attorney on the direct examination of witnesses Sheriff Gaughenbaugh and Constable Seath, who made the arrest of the defendant; (2) insufficiency of the evidence to sustain the verdict; and (3) error in certain instructions given by the trial court to the jury. I. We first turn to the challenged testimony of the State's witness Sheriff Gaughenbaugh. The record is in part as follows: Page 1171 "Q. Are you acquainted with the defendant Canalle? A. Yes, sir. Q. How long have you known him? A. The last four years, I expect, — possibly longer. Q. Sheriff, what business is Canalle engaged in here [Centerville]? A. Liquor business. 1. CRIMINAL (Defendant's attorney: That is improper, and LAW: trial: a mere conclusion, an opinion of the witness, production and prejudicial. The court: Objection of incom- sustained.) The witness then answered that the petent and defendant was interested in a pool hall. Q. prejudicial Who has been interested with him in that testimony. business? (Objected to as immaterial and secondary, not the best evidence. A. Slim Campbell. The court: Objection sustained. Defendant's attorney: Can't you wait? The court: You will wait, Mr. Sheriff. Objections sustained.) Q. Now in that place of business, what is there? (Same objections. Defendant's attorney: I thought we were going to try a transporting of liquor case, instead of somebody running a pool hall. Question restated. Same objections, and all of them, — immaterial and collateral to any issue here. The court: Objections sustained.) Q. What is the equipment or stock? (Same objections. The court: Objections sustained.) Q. Who works there in that place of business with Canalle? (Same objections. The court: Objections sustained.) Q. Does Chester Rhodes work in that same place? (Same objections. The court: Sustained.)" A complaint of similar nature is based on the direct examination of William Seath, the constable of the township where the alleged crime was committed. He testified that he was acquainted with the defendant Canalle, and had known him for at least ten years. He was then asked if he knew the occupation of the defendant at the time charged, to wit, May 7, 1927. Objection was made as incompetent, immaterial, and calling for the conclusion of the witness. The court ruled the objection by stating: "He may answer, if he knows." Having stated that he did know, he was then asked: "What is it?" Similar objections were made, and overruled. Whereupon counsel for the defendant added, by way of objection: "Misconduct on the part of the county attorney, prejudicial, and done for the purpose of prejudice." The court then said: "If the witness knows of his own knowledge, he may answer." A. "Well, running the pool hall, Page 1172 and bootlegging." Defendant's counsel then moved to strike, and the court, in ruling, said: "That last part may go out. That last remark may go out. It is improper, and the jury will not consider it for any purpose." At this point, the defendant requested the court to discharge the jury and continue the case, on account of the prejudicial misconduct on the part of the county attorney and his witnesses, "especially this witness and the witness Gaughenbaugh." "The court: I will say this to the jury. Defendant's counsel: That won't do it, your honor. The court: I am saying this to the jury: As I told you before, the remark of Sheriff Gaughenbaugh that was stricken out, you will not consider for any purpose. This last remark of this witness I have stricken out, and you will not consider it for any purpose. When I say that, that means you will eliminate it from your minds. That remark was improper. I don't want it to occur again. Motion overruled. Exceptions." It is the specific contention of the appellant in this court that the evidence heretofore set out was "prearranged evidence, concocted by the county attorney and his star officer witnesses," and that this evidence "tended to and had doubtless been instilled into the minds of the jury, which was not corrected by the rulings and the admonitions of the trial court." There is nothing in the record which discloses any prearrangement between the county attorney and the "star witnesses." In fact, the evidence is to the contrary. Upon the cross-examination of Constable Seath, he was asked if he and the sheriff and the county attorney had not "framed" to put in improper evidence in this case. He answered emphatically in the negative, and that he was not trying to do anything by unfair or foul means; that he did not testify by reason of any interest in the case; that he did not know that the testimony in question was improper; and that he had never talked with the county attorney about this case, and did not know what questions would be asked of him on the witness stand. At the time that Sheriff Gaughenbaugh took the witness stand, he was asked, without objection, whether he was acquainted with the defendant Canalle, and how long he had Page 1173 known him, and what Canalle's business was in Centerville. It may not be said that either counsel or court could have anticipated that the sheriff, in answer to the last question, would reply, "Liquor business." Furthermore, the answer, when made, was immediately stricken. The same is true as to the improper answer of the witness Seath. The trial court was quite specific in its direction to the jury that the challenged evidence as to both witnesses in this particular should not be considered "for any purpose." The record is silent whether or not the court, in the instructions given to the jury, referred further to this matter; but even in the absence of further instruction, the jury understood the meaning and intent of the oral instruction that the testimony "was not to be considered by them in reaching a verdict." State v. Foster, 136 Iowa 527. In the case of State v. Lyons, 202 Iowa 1195, the trial court in the first instance overruled the motion to strike certain testimony, but later announced that the motion would be sustained, and directed the jury to give no consideration whatever to such testimony. In that case, as here, the appellant contended that, notwithstanding the fact that the testimony was unequivocally and specifically withdrawn from the consideration of the jury, the error in its admission was not cured. The proposition was held untenable. True, there are cases wherein we have been constrained to say that evidence improperly admitted was of such toxic character that the error was not cured by striking same and giving proper admonitions to the jury. State v.Poston, 199 Iowa 1073; State v. Paden, 199 Iowa 383; Quillen v.Lessenger, 190 Iowa 939; Hood v. Chicago N.W.R. Co., 95 Iowa 331. We do not consider the instant case to be within the class of the foregoing cases and others cited by appellant in his brief. Appellant also seriously questions one other item of evidence 2. INTOXICATING which has to do with searching a car and the LIQUORS: finding of liquor by Sheriff Gaughenbaugh in the illegal forenoon of the day that the defendant Canalle transporta- and his companion Rhodes were arrested. It tion: appears from the testimony of the sheriff that inadvertent the first time he saw the defendant on the day reception of of his arrest was when Canalle and Rhodes left immaterial Canalle's pool hall and entered Rhodes's car, testimony. which was parked in the street, directly Page 1174 north and in front of the pool hall. The sheriff and Seath got in the sheriff's car, and followed the Rhodes car. As the sheriff's car turned off Primary No. 3, two cars "pulled out" of what is called the Raven road or lane. One went west, and one went east. The defendant Canalle at that time was driving the Rhodes car, coming west. The sheriff's car followed the car going east, and known in this record as the Riles car. In the examination of the sheriff, the question was asked: "And did you stop and search that car?" Objections were made, and the trial court inquired: "How do you claim that is material? How long do you claim it was, before the alleged act?" The county attorney replied: "It was the same day, not very long before. The sheriff can tell you. I can't." The objection was overruled, and the sheriff answered that a search was made. To the question as to what was found, the sheriff replied, over overruled objections: "Nine pints of alcohol in a sack — a paper sack." It is apparent that the trial court was confused about which car the testimony related to. The Rhodes car, in which defendant was riding, was a Dodge coupé , with license No. 4070. The other car was a Chevrolet roadster, and this fact was made known by a question put to the witness by the trial judge, who then and there said: "I don't see how that is material," and further: "It may go out, what he found in that car. The jury will not consider it. Whenever the jury is told not to consider evidence, they will not consider it for any purpose. It is stricken out." Constable Seath also testified that he saw the defendant east 3. INTOXICATING of town on the Raven road, and that "there were LIQUORS: two cars out in the Raven road," and, that the illegal defendant "was leaving Riles' car and going back transporta- to the Rhodes car, No. 4070." Although tion: objections were entered to this line of tracing testimony, it was clearly competent to trace the movements movements of the defendant at this time. The of accused. constable further testified: "No one was with him [Canalle]. Riles was driving his car. Q. And did you follow the Riles car at that time? (Objected to as incompetent, immaterial, irrelevant, and collateral. Page 1175 Overruled. Exceptions.) A. Yes, sir. Found nine pints of alcohol in it." This last remark was a volunteer statement, and not responsive to the question asked the witness. It is apparent that the jury was warranted in finding, inferentially at least, some connection between the defendant and the Riles car. In the light of this record, we are not inclined to hold that reversible error may be predicated on the rulings of the court relative to the Riles car incident. II. Is the evidence sufficient to sustain the verdict? The defendant and one Rhodes, on the afternoon of May 7, 1927, left the defendant's pool hall, got into Rhodes's automobile, and drove east from Centerville. The defendant 4. INTOXICATING testified as a witness. Rhodes was not called as LIQUORS: a witness, although, at the time of the trial, illegal he was in the county jail, under sentence on his transporta plea of guilty to the crime charged in this tion: indictment. The defendant testified, as a evidence: witness in his own behalf, that, at the time in sufficiency. question, he was "going home," for the purpose of getting "some billiard balls for the pool hall." He denied keeping any liquor in the car; denied that he knew any liquor was in the car when the car started, or when he left the car, upon his arrest on the public highway by the sheriff; denied that he broke any bottles of liquor in the Rhodes car; denied that he owned any liquor or was transporting any liquor that was in any of the bottles, or was in any way interested whatsoever in the bottles of liquor; and, in brief, said that he "didn't know anything about any liquor or anything that was in these bottles, if these were bottles, or if there was any bottles in the car." The evidence discloses, and the jury was warranted in finding, that the sheriff of Appanoose County and the constable in the local township followed the Rhodes car from a business street of Centerville, and that, after they had proceeded for some distance behind the Rhodes car, they observed that the occupants of the Rhodes car (Rhodes and Canalle) had discovered that they were being followed. Shortly thereafter, the sheriff and the constable saw the defendant Canalle bend forward "his head and shoulders, moving back and forth, like that [indicating], while Rhodes was sitting perfectly straight, driving." Immediately thereafter, a Page 1176 "liquid" was seen flowing in a stream from the car, making "a wet strip along the paving. You could see it clear along his car, running down." The record further discloses that the Rhodes car attempted to escape the sheriff's car, did not respect the command to stop, and was finally crowded to the curbing. The constable jumped on the running board of the Rhodes car, and the car stopped. The car was then and there searched, and there were found on the floor of the car four four-ounce broken bottles. The floor of the car was wet. Canalle and Rhodes were then placed under arrest, and taken to Centerville. The sheriff called a number of witnesses, for the purpose of smelling the odor in the car and the broken bottles. The sheriff testified he knew the smell of alcohol, had handled considerable liquor since he was sheriff, and, "judging from the smell of the contents there in the car and the liquid that was spilt around over the car, that it smelt like alcohol, and that he would say it was alcohol." Other witnesses, including the constable, testified to the same effect. The evidence presented a jury question. The defendant did avail himself of the statutory defense that he did not know that there was intoxicating liquor in the vehicle, and that he had no interest or ownership in the liquor. In passing, it may be stated that, attached to defendant's motion for new trial, but not specifically referred to therein, is the affidavit of Chester Rhodes, in which he recited that, on the day in question, he and Canalle started to go down to Canalle's home for some billiard balls; that Canalle did not know there was any liquor in the car; that, while Canalle was looking back (at the sheriff's car), he (Rhodes) reached in the pockets and got the bottles of alcohol and broke them; that Canalle did not break any of them, and did not know that they were in there; that Canalle had no knowledge that the bottles were there, or of their contents. The jury did not have the benefit of these recitals, as Rhodes was not a witness upon the trial. The affidavit was not filed on the theory of newly discovered evidence, and cannot now be considered by this court as corroboration of the testimony of the defendant Canalle. The jury was warranted in finding that the defendant and Rhodes were engaged in a joint enterprise, and that the bottles of liquor in the car were purposely and deliberately destroyed by Page 1177 the defendant Canalle. The destruction of the liquor was accomplished immediately prior to the arrest of the defendant and Rhodes. The floor board of the car was freshly wet, and the officers making the arrest had witnessed the movements of the defendant in the Rhodes car, and also the liquid stream that flowed from the car immediately after said movements. III. It is urged that the court was not warranted, under the evidence, in submitting to the jury an instruction which embodied the law of aiding and abetting. With this we cannot agree. True, the guilt of a person who aids or abets the 5. INTOXICATING commission of a crime must be determined upon LIQUORS: facts which show his part in it, and does not illegal depend upon the degree of the other's guilt. transporta- State v. Mickle, 199 Iowa 704; State v. Marish, tion: aiding 198 Iowa 602; State v. Johnson, 198 Iowa 588; aiding and State v. Berger, 121 Iowa 581; State v. Jones, abetting. 115 Iowa 113. It is not necessary, to constitute unlawful transportation of intoxicating liquor, that the transportation should be completed or consummated. Proof of the possession of liquor and of present transportation is sufficient. The word 6. INTOXICATING "transportation" in the liquor law does not LIQUORS: have a technical meaning, but is employed in its illegal ordinary sense: that is, to convey from one transporta- place to another, — any real carrying about. tion: Cunard S.S. Co. v. Mellon, 262 U.S. 100 (67 L. definition. Ed. 894); Asher v. State, 194 Ind. 553 (142 N.E. 407). No burden rested on the State to prove that the defendant had a pecuniary interest in the liquor. See People v. Ninehouse,227 Mich. 480 (198 N.W. 973). Under our statute, the destruction or any attempt to destroy any liquor by any person while in the presence of peace officers, or while the property is being searched by a peace officer, is prima-facie evidence that such liquor is intoxicating liquor, and intended for unlawful purposes. The court gave correct instructions involving statutory provisions governing intoxicating liquor, and applicable to the case at bar. In State v. Duskin, 202 Iowa 425, the facts are not analogous to the facts of the instant case. Lastly, it is contended that the court erred in giving to the jury an instruction relating to the statute of limitation, wherein it is said that, in order to find the defendant guilty, it must be Page 1178 7. CRIMINAL shown beyond a reasonable doubt that the LAW: defendant did, in Appanoose County, Iowa, "at or limitation about the time alleged in the indictment of this of actions: case, or any time within three years immediately general preceding the filing thereof, transport instruction. intoxicating liquors contrary to law." This instruction simply embodied the statutory provision. As a matter of fact, the only evidence bearing on the time of the commission of the offense was May 7, 1927. No other evidence bearing on the time was before the jury for consideration. No possible prejudice could result from the giving of this instruction. See State v.Speck, 202 Iowa 732. We have given this record, including the transcript of the evidence, a careful reading, and we find no legal basis for a reversal. The judgment entered is — Affirmed. STEVENS, C.J., and ALBERT, MORLING, and WAGNER, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431697/	[1] Defendant owns a four-story brick building in Des Moines, at the southwest corner of the intersection of Court Avenue, which runs east and west, and Third Street, which runs north and south. Along the west wall of the building is a public alley paved with brick. Defendant occupied the second and third floors and the west part of the ground floor, but leased the fourth floor to the Packard Manufacturing Company, of which decedent was the secretary. Attached to the west wall of the building was a steel fire escape. The lower eighteen feet of the escape was a counterbalanced stair, which, when not in use, was kept in a horizontal position at the second-floor level. The south or upper end of this stair was attached to the north end of the platform at the second-floor level. To the north or lower end of this stair was affixed a steel yoke to which was attached a wire-rope cable. The cable extended up over a pulley held by a bracket fastened to the wall above the north end of the stairway. Attached to the other end of the cable was a counterweight of some three hundred pounds, which kept the stairway suspended horizontally when not in use. When in use, the north end of the stair descended to the alley and the counterweight was elevated toward the bracket which held the pulley over which the cable ran. About 5:20 p.m. on April 8, 1943, decedent's body was found about ten feet north of the lower end of the fire escape, which was then resting on the alley. He had a basal skull fracture, which caused death that same afternoon. The cable above referred to, broken about the middle, and the counterweight were lying in the alley eight to ten feet north of the bottom of the stairway. Between the stairs and the weight was the U-shaped steel yoke above referred to, which was about eight feet long. Page 18 One end of the weight, which was two to three feet long and ten inches thick, almost touched the building. Decedent's head was two and one-half or three feet from the wall and six or eight inches north of the weight. His body lay to the southwest. Part of the cable was over one arm. He was not on top of any of the cable. There were no eyewitnesses to the accident. This action was brought by the bank as administrator. It claims that defendant negligently permitted some part of the fire-escape apparatus to fall upon decedent while he was lawfully in the alley. At the close of all the evidence there was a judgment for defendant on a directed verdict. There is sufficient evidence that defendant, by its lack of ordinary care, permitted the cable to become defective, causing it to break, and, since plaintiff is entitled to the benefit of the no-eyewitness rule, that decedent was free from contributory negligence. However, defendant seeks to justify the directed verdict by the argument that there is insufficient evidence the apparatus fell upon decedent while he was using the alley. Defendant's theory is that decedent was injured while using the fire escape as a means of egress from the fourth floor of the building; in so doing he was a mere licensee to whom defendant owed no duty to exercise ordinary care. [2] If decedent used the fire escape as a means of egress from the quarters of the Packard Manufacturing Company on the fourth floor, he was a mere licensee (or, as frequently expressed, a "bare licensee") in so doing. There is no evidence that defendant expressly or impliedly invited such use of the fire escape nor that it was customarily so used. It was intended as an exit in case of danger from fire and not as a stairway generally. See, as sustaining our conclusion, Landers v. Brooks, 258 Mass. 1,154 N.E. 265, 49 A.L.R. 562, and annotation 564; Aldworth v. F.W. Woolworth Co., 295 Mass. 344, 3 N.E.2d 1008; Robinson v. Leighton, 122 Maine 309, 119 A. 809, 30 A.L.R. 1386, and annotation 1390, 1395; Smelser v. Deutsche Evangeliscke etc., Kirche, 88 Cal.App. 469, 263 P. 838; McAlpin v. Powell, 70 N.Y. 126, 26 Am. Rep. 555; 4 Shearman and Redfield on Negligence, Rev. Ed., 1779, section 777. See, also, Keeran v. Spurgeon Merc. Co.,194 Iowa 1240, 191 N.W. 99, Page 19 27 A.L.R. 579, and cases cited; Flaherty v. Nieman, 125 Iowa 546,101 N.W. 280. [3] If decedent was injured while using the fire escape as a mere licensee, defendant did not owe him the duty of exercising ordinary care to keep the apparatus in a reasonably safe condition but would be liable only for willful or wanton injury. See cases last above; also, Gillard v. Hoffman, 103 Kan. 572,175 P. 395; Vondenberger v. Schaaf, 13 Ohio App. 285; Rodefer v. Clinton Turner Verein, 232 Iowa 691, 698, 699, 6 N.W.2d 17, 21,22; Mann v. Des Moines Ry. Co., 232 Iowa 1049, 1062,7 N.W.2d 45, 53, and cases cited; 4 Shearman and Redfield, Rev. Ed., 1793, 1794, section 781. There can be no actionable negligence unless there is a duty to the injured party to exercise care. Williams v. Cohn, 201 Iowa 1121,1122, 206 N.W. 823, and cases cited; 38 Am. Jur. 652, 653, section 12; 45 C.J. 639, section 16; 1 Shearman and Redfield, Rev. Ed., 10, section 4. Defendant in effect concedes that it owed a duty to the members of the public lawfully using the alley not to permit its fire-escape apparatus to fall by reason of defendant's want of care, and if there is sufficient evidence that the injury to decedent resulted from a breach of that duty the case should have gone to the jury. [4] While a plaintiff is not bound to prove his theory by evidence so clear as to exclude every other possible theory, where, as here, the evidence is wholly circumstantial, it must be such that plaintiff's theory is reasonably probable, not merely possible, and more probable than any other theory based on such evidence. Hayes v. Stunkard, 233 Iowa 582, 587, 588,10 N.W.2d 19, 22, and cases cited; Rodefer v. Clinton Turner Verein, supra,232 Iowa 691, 697, 6 N.W.2d 17, 20. Does the evidence, viewed in the light most favorable to plaintiff, meet this test? We agree with the trial court that it does not. [5] On the day in question decedent did not leave the fourth floor until after 5 o'clock. There were four possible means of leaving: a passenger elevator, a freight elevator, an inside stairway, and the fire escape. It is not reasonably probable that decedent did not use the fire escape. Mr. Seizer, president of the Packard Manufacturing Company, Page 20 a witness for plaintiff, said on direct examination, "the passenger elevator is not accessible after 5 o'clock and the freight elevator is the only way we can leave the building at night." On cross-examination he said, "Occasionally the passenger elevator operates after 5, but such occasions were very isolated." The same witness testified on direct examination that defendant had forbidden the use of the inside stairway after working hours to employees of the Packard Company. (Their usual quitting time was 4:30.) Mr. Seizer himself had so informed decedent and all employees had been so instructed. Three Packard employees testified for defendant. In substance, Mrs. Daughenbaugh said, on the day in question she "quit work between 5 or 5:10"; she saw Mr. Born (decedent) right afterward: "He was out there by the fire escape window. I couldn't say what he was doing at the window as I went to punch the time clock. * * I couldn't see him step out the window, what he was doing, because I myself and Miss Hudson were talking together and I didn't pay a lot of attention to him." The window was open. After she punched the time clock, she turned around to go back to the freight elevator (near the southwest corner of the building); "* * * just a little bit afterwards we heard a crash, but I didn't know exactly what it was. * * * I just stood there and then looked out the window and seen him lying on the ground." After she saw Mr. Born standing at the fire-escape window she did not see him again at any point on the fourth floor: "The American Express Company was working in the rear of the freight elevator. I saw them down there. I could hear their voices. We were waiting to go down on the freight elevator. It was in use and we couldn't get it up." (The freight elevator had a push-button control.) She could not see Mr. Born while they were waiting at the elevator. Asked how long it was after she saw decedent standing at the fire-escape window that she saw him lying on the ground, she answered, "I imagine about a minute or a minute and a half or something like that." Mr. Born had his hat and coat on when she saw him. Page 21 Victoria Wener testified, in substance, she worked on the day in question till 5 or a little after: "It must have been about 5. I saw Mr. Born around there about the time I quit * * He was at the window. * * * He had two hands on the sill and put one leg over. Q. Was it the window at which the fire escape platform is on the outside? A. I believe it was. He had one leg on the sill and his hands were on the window sill. He was facing north toward Court Avenue. I don't know which leg it was he had on the sill. He was in that position the last time I saw him. * * * We heard a crash a few minutes after. * * * Someone said Mr. Born was lying in the alley." On cross-examination Mrs. Wener testified: "Q. You don't know whether he came back into the room after you saw him standing in the position you have described? A. I couldn't say. Q. You didn't see him after that time? A. No." Miss Hudson testified, in substance, she worked that day until: "* * * sometime after 5, a few minutes after 5. The last time I saw Mr. Born he was standing at the window as I came through the door from the workroom on my way to the time clock. I saw him in front of this window which is directly in front of the door. Q. And it is the window with the fire escape platform? A. I didn't know at that time, but it is the one since I have noticed marked `Fire Escape.' Q. Was the window open? A. I don't know. I just glanced up and I saw him there at this window with his back toward me. I turned off to the time clock and rung out and I walked slowly back toward the freight elevator, and on my way I stopped at the scale and weighed myself, and that took some time. I saw them all standing around there. I didn't notice Mr. Born any more after I saw him when I glanced up as I came through this door. * * * I walked slowly back toward the elevator and stood there a few seconds I suppose, it seems some time but we stood there and Mr. Fine walked over to the elevator and pressed the button Page 22 again and it still didn't come, and he walked over to the window then and looked out and he says, `There is Harry on the ground. He is hurt. Somebody call the ambulance.'" None of the above testimony of Mr. Seizer and the three employees is contradicted. There is nothing to cast doubt upon its truthfulness. These three employees had finished work and were attempting to leave the building by means of the freight elevator. This confirms Seizer's testimony that the passenger elevator and the inside stairway were not available. The freight elevator was in use by others. That is the reason the women "couldn't get it up" and were compelled to wait on the fourth floor. Unless the testimony of Seizer and the three women is discarded arbitrarily, it is not reasonably possible, much less probable, that Mr. Born did not go down the fire escape. The only reasonable conclusion is that he did use the fire escape. There is also this testimony of plaintiff's witness Sisson, an inspector in the fire-prevention bureau of the city fire department, referring to the time of an inspection made by him of this fire escape on February 16, 1943: "I talked to Mr. Born about using the fire escape. I told him I knew of no law that would prohibit him from using it, however, it wasn't good practice." Plaintiff argues that decedent may have succeeded in reaching the alley by means of the fire escape and have been injured by the fall of the apparatus while walking in the alley. Of course, this is possible, but it is conjectural and not reasonably probable, nor more probable than the opposing theory that the injury occurred while Mr. Born was attempting to use the fire escape. It would seem to be more probable that the cable broke while subjected to a strain, in addition to the weight of the movable stair, than that it broke while the movable stair was not in use. Plaintiff relies on testimony that one of the two persons first to reach the body soon after the accident said it was then "about 5:20," while the latest estimate of the time Born was last seen on the fourth floor is 5:10. It is said this interval afforded plenty of time for decedent to have gotten to the alley Page 23 before he was injured. The witnesses, however, did not purport to be entirely accurate in their estimates of time. The testimony, in this respect, is no more than consistent with plaintiff's theory of how the accident occurred. It is also argued that the basal skull fracture and the location of the body, with the head about ten feet north of the bottom of the fire escape, make plaintiff's theory reasonably probable. We have carefully considered this argument but are unable to agree with it, in view of all the physical facts immediately after the accident, together with all the other testimony. Plaintiff's witness, the coroner, a physician, testified he could not say positively whether the fractured skull was caused by a fall or a blow. Decedent also sustained a fracture of one wrist and a kneecap, several abrasions about the face, "a few minor abrasions about his extremities, about the knees," a cut lip, and his false teeth were knocked out. It is unnecessary to consider whether, as the trial court concluded, the existence of these other injuries is more consistent with defendant's theory. — Affirmed. All JUSTICES concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431699/	The decedent, Charles W. Boles, who was engaged as an independent contractor in furnishing certain electrical supplies and service for the Maytag Hotel of Newton, Iowa, met his death by falling into the pit of an elevator shaft in the Maytag Hotel, on the evening of January 9, 1932. On that date he was furnishing certain electrical equipment and service in one of the rooms on the fourth floor for the hotel. He had performed similar work on former occasions, but had not been so engaged for about two months prior to January, 1932. He had been working on his present contract about two days. The decedent and two workmen for another contractor used a freight elevator in the east side of the building that evening in going to and from the fourth floor. Arrangements had been made for their use of the elevator that evening. Various employees of the hotel, draymen, guests, and others had, at various other times, also used the same elevator. The elevator connected with six floors of the building, with an inside door on Page 308 each floor opening into the west side of the elevator, and one outside iron door on the first floor opening on the alley on the east side. All of the inside doors, at the time in question, were equipped with a circuit cutting safety device which prevented the elevator from moving when any of these doors were open. The outside door was also originally equipped with a similar safety device, which also prevented the elevator from moving when any of the doors were open. The devices for all the inside doors were in use and operation on January 9, 1932, but the one for the outside iron door was not in use or operation that day, and had not been for over two years prior thereto. It then became out of repair, was partially removed, and had never since been repaired or replaced. The outside door opening into the alley was a large iron roller door and was opened by pushing it up. The negligence charged against the defendant as causing Boles death was: That the safety device for the outside door was negligently and carelessly allowed to become and remain out of repair and inoperative. Mr. Lynch and another paper hanger were working in the same room with decedent that evening. At about 9:30 Boles left the hotel and went to his shop over a block away to get some electrical equipment for the room on the fourth floor. Mr. Lynch, another workman, and the manager of the hotel were in the room when Mr. Boles left. Mrs. Boles says that her husband returned to the shop at about 9:30 that evening for some electrical material. After getting what he came for, he left the shop for the hotel at ten minutes to 10. He was next seen about 10:30 p.m. lying unconscious in the pit of the elevator shaft. Mr. Lynch says he left the room on the fourth floor at about 9:45 or 10 o'clock to get the elevator to go to the lower floor to get a glass from Mr. Dietz, the night engineer. Mr. Boles left his shop at ten minutes to 10. When Lynch went to the elevator it was on the lower floor, and he pushed the button to bring it up. While pushing the button he heard something like a door being closed on the lower floor, and at the same time he noticed that the elevator hesitated. He kept pushing the button, however, and the elevator came on up. He then went down on the elevator, and when he reached the first floor he found the outside iron door open about three and a half feet from the bottom. There was a strong wind blowing, and he pushed the door down further. He then walked Page 309 down and got a glass from Mr. Dietz and took the elevator back to the fourth floor. About fifteen or twenty minutes later Mr. Dietz heard a moaning sound from the bottom of the elevator pit, where he then found Mr. Boles. A doctor was immediately summoned, who found Boles still moaning and groaning. Boles was then in extreme shock and unconscious. His body was cold and clammy; his lips were blue and his pupils dilated. He died about 6:15 the next morning. He had a number of body injuries, broken ribs on both sides of his chest and a fracture of the collar bone with the bone dislocated, bruises on his face, body, and right hip. There was a swelling over the right collar bone and shoulder. His pulse was irregular at about 36 and indicated a concussion of the brain. There was a hole in one of his rubbers, a button off his coat, and marks on his hat and coat, all of which were not there when he left the shop. Mr. Boles was in good health, and had been engaged in electrical work seventeen years, and was an expert electrician. During the time the safety device for the outside iron door was inoperative and out of repair, Mr. Boles used the elevator at various times when doing other electrical service in the hotel. The witness Dietz testified that some time in the late summer or fall of 1931 he said to Mr. Boles: "I suppose you know as much or more than I do about this, but I am going to tell you anyway that this circuit breaker is not working and we usually open the west door in loading from the alley. When I said the circuit breaker was not working I pointed to the device and showed him what it was. At that time we were standing on the ground floor. * * * I told him how it operated, that by opening the west door (the inside door) that held the car while we were loading from the alley." Nicholson, a decorating contractor, rode in the freight elevator with Mr. Boles five or six times, and saw him operate it several other times. At such times the outside and the inside doors were both open. He said Mr. Boles always closed the outside door before the inside door, because the elevator would not start until the inside door was closed. Other witnesses saw Mr. Boles using the elevator at various times after the safety device on the outside door was out of repair. It is conceded that, when Boles left the hotel for his shop that evening, he closed the outside elevator door. Page 310 I. There were no eyewitnesses to the manner in which decedent fell into the elevator shaft, but the defendant contends that, if the manner of his falling into the shaft is, by circumstantial evidence, equally explainable upon a theory of no liability, as upon a theory of liability, then there can be no recovery. The law is well settled that, where the cause of an injury is based upon circumstantial evidence, which is equally as consistent with a theory of no negligence as with a theory of negligence, plaintiff cannot recover. Hall v. C., R.I. P.R. Co., 199 Iowa 607, 199 N.W. 491; O'Connor v. C., R.I. P.R. Co., 129 Iowa 636, 106 N.W. 161; Tisher v. Union Pac. R. Co., 173 Iowa 567, 155 N.W. 975; Tibbitts v. Mason City Ft. Dodge R. Co., 138 Iowa 178, 115 N.W. 1021; Asbach v. C., B. Q.R.R. Co., 74 Iowa 248, 37 N.W. 182. This doctrine, however, is not to be extended so as to result in a failure of justice, and it is only where the evidence shows probabilities equally supporting a theory of no negligence as a theory of negligence that there is no liability. But if the circumstances supporting a theory of negligence are of greater weight than the evidence supporting the theory of no negligence, then it becomes a question of fact for the jury to determine whether or not the cause of the injury was the injury was the negligence alleged. A person is not required to prove his theory of negligence by testimony so clear as to exclude every other possible theory. Duncan v. Ft. Dodge Gas Electric Co.,193 Iowa 1127, 188 N.W. 865; Hall v. C., R.I. P.R. Co., supra; Swaim v. C., R.I. P.R. Co., 187 Iowa 466, 174 N.W. 384; Gordon v. C., R.I. P.R. Co., 146 Iowa 588, 123 N.W. 762; Paulson v. Bettendorf Axle Co., 146 Iowa 399, 125 N.W. 174; Huggard v. Refining Co., 132 Iowa 724, 109 N.W. 475; Lunde v. Cudahy Packing Co., 139 Iowa 688, 117 N.W. 1063; Breen v. Iowa Central R.R. Co.,163 Iowa 264, 143 N.W. 846; Avise v. Interurban R. Co., 174 Iowa 592, 156 N.W. 807; George v. Iowa Southwestern R.R. Co.,183 Iowa 994, 168 N.W. 322; Woodard v. C., R.I. P.R. Co., 193 Iowa 516, loc. cit. 525, 185 N.W. 978; Sever v. Minneapolis St. Louis R. Co., 156 Iowa 664, 137 N.W. 137 N.W. 937, 44 L.R.A. (N.S.) 1200; Schoepper v. Hancock Chemical Co., 113 Mich. 582, 71 N.W. 1081. In Duncan v. Fort Dodge Gas Electric Co., supra, loc. cit. 1133, this court, speaking through Justice Weaver, said: "Appellant makes the point that, to sustain plaintiff's charge Page 311 of negligence by circumstantial evidence, the circumstances shown must be such as are wholly inconsistent with any other reasonable theory of the death of the deceased. It may be admitted that cases are to be found, and possibly some of our own, in which the rule is stated as quoted by counsel. It is nevertheless a misleading statement as applied to disputed facts in a civil action. In its broadest sense it has no proper application, except in criminal cases where the evidence relied upon to establish the alleged crime is purely circumstantial. As applied to a civil action for damages for negligence, it goes no farther than to declare that, if the circumstances relied upon to sustain the allegation of negligence are equally consistent with the theory of due care by the defendant, then plaintiff must fail. To state it in the form contended for by appellant would be to hold that to sustain a finding of negligence on circumstantial evidence the plaintiff's proof must be such as to exclude all reasonable doubt, — a proposition without support in principle or well-considered precedent. The true rule has nowhere found better or clearer expression than is given by the Michigan court in Schoepper v. Hancock Chemical Co., 113 Mich. 582, 71 N.W. 1081 * * * Lunde v. Cudahy Packing Co., 139 Iowa 688, loc. cit. 700." In Woodall v. Boston Elevated R. Co., 192 Mass. 308, 78 N.E. 446, 448, the court said: "The plaintiff was not bound to exclude the possibility that the accident might have happened in some other way, but only to satisfy the jury by a fair preponderance of the evidence that it occurred in the manner in which he contended that it did." Two theories are advanced for the cause of decedent's falling into the elevator shaft. One is that advanced by the plaintiff under which it is claimed that, after Mr. Boles returned from his shop, he raised the outside elevator door and stepped into the cage of the elevator, and that, while in the act of pushing down the door, the elevator was suddenly raised by the workman Lynch on the fourth floor, causing decedent to lose his balance, and fall on the edge of the elevator floor from where he was pushed into the opening between the floor and the iron door, when the floor of the elevator reached the top of the door, thus precipitating him into the elevator shaft. The safety device originally provided for the outside door was defective, had been partly removed, was inoperative at the time in Page 312 question, and had been for over two years. While the safety device was out of repair and inoperative, the elevator could be moved regardless of whether the outside iron elevator door was open or not, provided all of the inside elevator doors were closed. If this safety device had been maintained in good working order, the elevator could not have been moved by any one on the fourth floor while the lower outside door was open. It is therefore contended by plaintiff that the cause of the decedent's death was the result of defendant's negligence in failing to provide a proper safety device for the outside door. Defendant's theory is that, when decedent returned to the hotel from his shop, the elevator cage was not there, and that, after opening the elevator door, he either stepped or slipped into the elevator shaft in attempting to enter the elevator cage. The elevator cage was provided with an electric light which was lit before Boles went down on the elevator and was still lit after he was found in the bottom of the shaft. That if the elevator cage was not on the ground floor when Boles opened the door, the absence of the light and the cage must have been seen and known to Boles when he opened the door and attempted to enter the elevator. Defendant claims that this theory of decedent's fall is equally probable with that advanced by plaintiff, and under it no recovery can be had. II. Defendant contends that its motion for a directed verdict should have been sustained because the evidence failed to show that decedent was free from contributory negligence as a matter of law. Assuming for the purposes of this branch of the case that plaintiff's theory as to the cause of decedent's fall into the elevator shaft was sustained by sufficient evidence we are confronted with the question of whether or not there was sufficient evidence to take the question of plaintiff's contributory negligence to the jury. Plaintiff contends that, where there are no eyewitnesses to an accident, there is an inference or presumption of due care on the part of the person injured. This rule is correct in the absence of all evidence, but, where it appears from the physical facts in a case that the person injured could not have been in the exercise of ordinary care, then the rule does not apply. 45 C.J. 947; Sohl v. C., R.I. P.R. Co., 183 Iowa 616, 167 N.W. 529; Stark, Adm'x, v. Tabor Northern R.R. Co., 161 Iowa 393, 142 N.W. 977; Tegtmeyer v. Byram, 204 Iowa 1169, 216 N.W. 613; Page v. New York Realty Co., 59 Mont. 305, 196 P. 871; Cutler v. Kolb Bakery Co., Page 313 273 Pa. 59, 116 A. 518; Massey v. Seller, 45 Or. 267, 77 P. 397; Seaver v. Weston, 163 Mass. 202, 39 N.E. 1013. In Stark v. Tabor Northern R.R. Co., supra, we said: "Moreover, this presumption will not obtain, if the direct evidence or the physical facts show that the injured party was not in the exercise of the degree of care required of him when struck." In Tegtmeyer v. Byram, supra, loc. cit. 1175, we said: "The presumption obtaining in favor of a deceased, when there are no eyewitnesses, is not applicable, because, on the physical facts and undisputed evidence, the collision would have been avoided, if decedent had made such reasonably prudent use of her faculties of observation as her knowledge of the surroundings and the evidence of danger from the presence of the track warned her to make." It is the settled rule of law that in this character of actions the burden is upon the plaintiff to show his freedom from contributory negligence. If, therefore, the evidence offered by plaintiff does not tend to show that he was free from any negligence on his part, contributing to the accident, there can be no recovery. We recognize the rule that the questions of negligence and contributory negligence are ordinarily for the jury. But it is also the rule that if, under the evidence offered, it appears without conflict that the plaintiff was guilty of contributory negligence, there can be no recovery as a matter of law. "Under the legal system of most English speaking jurisdictions, the contributory negligence of an injured person is a bar to any recovery for injuries. Every person, whether a trespasser, licensee or one present by invitation, when using an elevator as a means of travel or when in proximity to an elevator or elevator shaft, is bound to exercise reasonable care for his own safety." 9 R.C.L. 1257, section 23; Patterson v. Hemenway, 148 Mass. 94, 19 N.E. 15, 12 Am. St. Rep. 523. "It is also the rule that notice or warning is not necessary where the danger is obvious, or the person injured has actual knowledge thereof, or where, on account of the obviousness of the situation and the use of the property for a considerable time by the person injured, the owner has a right to believe that the injured person is fully acquainted with the situation and the risk." 45 C.J. 876, section Page 314 306; Trainor v. H.A. Maine Co., 184 Iowa 549, 168 N.W. 872. "The duty to exercise ordinary care to avoid injury includes the duty to exercise ordinary care to observe and appreciate danger or threatened danger. A person is required to make reasonable use of his faculties of sight, hearing and intelligence to discover dangers and conditions of dangers to which he is or might become exposed." 45 C.J. 947. In Page v. New York Realty Co., 59 Mont. 305, 196 P. 871, loc. cit. 878, the court said: "From all of the affirmative proof introduced on the part of the plaintiff in this case, it seems clear that the decedent was not only guilty of contributory negligence, but that he was foolhardy to such an extent as to constitute gross negligence on his part. The burden rested upon the plaintiff to prove by a preponderance of the evidence that the negligence of the defendant was the proximate cause of the decedent's injury. Assuming the defendant guilty of negligence, from all of the evidence introduced it does not appear that the decedent, at the time of the accident, exercised due care for his own safety, and therefore a case for the jury was not made. Applying decisions of our court to the evidence introduced in this case, there is but one conclusion, and that is that carelessness and negligence of the decedent was a proximate cause of his injury and resultant death. His contributory negligence, under the evidence, is proper for decision as a matter of law, rather than one of fact." In the case of Cutler v. Kolb Bakery Co., 273 Pa. 59, 116 A. 518, the court said: "Plaintiff on his own testimony admitted that he was standing seven feet away from the opening into the elevator; that he had his back to the elevator; that he had been engaged for a few minutes previous in helping to load his truck with flour. He then says that he stepped backward those seven feet to the elevator and fell down the unguarded shaft, the elevator having been moved meanwhile by somebody unknown. The plaintiff further testified that he knew that the gates were not there, or that if they were there that they did not work, because he said he had been up there some ten or twelve times before over a period of about two months before this Page 315 accident happened, and therefore he knew the condition of the elevator, and knew therefore that if the elevator was moved there would be no gates there to protect a person." In the case at bar, if the decedent knew of the absence of the safety device in question, and if he appreciated the danger likely to arise therefrom, and if such knowledge and appreciation are established by the evidence without conflict, then, as a matter of law, plaintiff cannot recover. As disclosed by the facts herein above set out, it appears that the decedent had used the elevator in question at numerous times during the two years prior to the accident in question, and had been engaged in furnishing electrical equipment and service for the hotel at various times during that period. He had been engaged in electrical work for over seventeen years, and was an experienced electrician. In furnishing electrical equipment and service for the defendant, he acted as an independent contractor. Part of the safety device which had been out of repair and inoperative for over two years was located at the outside iron door on the ground floor. There was also an inside door on each floor opening into the elevator. Each of these doors, including the inside door leading from the elevator on the ground floor of the building, was equipped with a safety device. The safety devices on these doors were in operation. The evidence shows that, when any one of these inside doors was open, it was impossible to move the elevator. The outside iron door was on the east side, and the inside door was on the west side, of the elevator. The decedent used this elevator on numerous occasions; in operating it he usually opened the west inside door on the ground floor to prevent the elevator from being moved while loading it and while the outside door was open. The evidence shows that theretofore whenever he operated the elevator he closed the east door before closing the west door. Boles had used this elevator two months before January, 1932. In the late summer or fall of 1931, the engineer of the hotel said to Mr. Boles: "I suppose you know as much or more than I do about this, but I am going to tell you anyway, that the circuit breaker (the safety device) is not working, and we usually open the west door in case of loading from the alley. When I said the circuit breaker was not working, I pointed to the device and showed him what it was. At that time we were standing on the ground floor. * * * I told him how it operated, that by opening the west door (being the inside door) that held the car while we were loading from the alley." Page 316 The circuit cutting device when in operation cut off the power from the elevator when any of the doors were open. All of the inside doors were equipped with this safety device, and the decedent was familiar with its operation and effect. He also knew that the safety device for the outside door was out of repair and inoperative, and that while out of repair he knew that the elevator could be moved from one floor to another while the outside door was open. He was an expert electrician, and knew and appreciated, better than the manager of the hotel, that the elevator could be moved while the outside door was open, unless the inside door was also open. He well knew that, in order to prevent any one else moving the elevator while he was closing the outside door, it was necessary for him to open the inside door. This was the only precaution necessary to prevent the elevator moving while he was closing the outside door. When he left the room on the fourth floor that night, two workmen and the manager were still there. There were other employees and others in the building who might use the elevator any time, and Boles knew that, if they did so, the elevator could or might be moved while the outside door was open. We believe the evidence in this case shows without conflict that the decedent at the time he met his unfortunate death must have known and appreciated the danger likely to arise from the use of the elevator with a defective safety device on the outside door at that time. If he had used the ordinary precaution of opening the inside door of the elevator until he had closed the outside door, the unfortunate accident would not have occurred. He knew that unless he did so the elevator could be moved. His failure so to do contributed to his injuries and death. For this reason we believe the lower court erred in failing to sustain the motion for a directed verdict. III. Defendant also contends that the court erred in failing to direct a verdict because the decedent assumed the risk of defendant's alleged negligence. The decedent knew of the defective condition complained of, and fully appreciated the dangers likely to arise from the use of the elevator in that condition. In view of this knowledge it is a serious question whether he did not, as a matter of law, assume the risk of the negligence alleged. Under this doctrine, where one knows of a danger arising from the act or omission of another, and understanding the risk therefrom, he voluntarily exposes himself to it, he is precluded from recovering for an injury Page 317 resulting therefrom. Although this doctrine is usually applied in cases where the relation of master and servant exists, it has been applied where that relation did not exist. White v. McVicker, 216 Iowa 90, 246 N.W. 385; Fitzgerald v. Conn. River Paper Co., 155 Mass. 155, 29 N.E. 464, 31 Am. St. Rep. 537; Gorman v. Brick Mfg. Co., 99 Iowa 257, 68 N.W. 674. In view, however, of the conclusion reached on the question of contributory negligence, we deem it unnecessary to determine whether or not the doctrine of assumption of risk applies. Other questions have been raised by defendant as grounds for reversal, but, in view of our conclusion on the question of contributory negligence, a consideration of them is unnecessary. For the reasons hereinabove expressed, the judgment of the lower court is reversed. CLAUSSEN, C.J., and ANDERSON, ALBERT, KINDIG, DONEGAN, and STEVENS, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3212216/	Opinion issued June 9, 2016 In The Court of Appeals For The First District of Texas ———————————— NO. 01-13-00415-CR NO. 01-13-00416-CR NO. 01-13-00417-CR ——————————— JAVIER NOEL CAMPOS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Case Nos. 1328806, 1328807, 1308988 MEMORANDUM OPINION ON REMAND A jury convicted appellant, Javier Noel Campos, of three counts of the first- degree felony offense of aggravated sexual assault of a child and assessed punishment at sixty-eight years’ confinement for each count.1 The trial court ordered that the sentences for cause numbers 1308988 and 1328806 run concurrently and that the sentence for cause number 1328807 be served consecutively. 2 Appellant raised thirteen issues on original submission, and we affirmed his convictions. Appellant subsequently filed a petition for discretionary review, challenging our resolution of each of his thirteen issues, including our determination that, based on the common-law “tacking” doctrine, his 1992 conviction for aggravated assault was admissible. After we issued our opinion, the Court of Criminal Appeals issued an opinion in Meadows v. State, 455 S.W.3d 166 (Tex. Crim. App. 2015), concerning the standard to be applied when determining the admissibility of remote prior convictions and abolishing the “tacking” doctrine. The Court of Criminal Appeals then granted appellant’s petition for discretionary review solely on this basis, vacated our January 13, 2015 opinion, and remanded the case to this Court to consider the admissibility of appellant’s 1992 conviction in light of Meadows. See Campos v. State, 466 S.W.3d 181, 182 (Tex. Crim. App. 2015) (per curiam). We affirm. 1 See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i)–(iii) (Vernon Supp. 2015). 2 Trial court cause number 1328806 resulted in appellate cause number 01-13-00415- CR. Trial court cause number 1328807 resulted in appellate cause number 01-13- 00416-CR. Trial court cause number 1308988 resulted in appellate cause number 01-13-00417-CR. 2 Background The State indicted appellant for three counts of aggravated sexual assault of a child, C.G.J., who lived in the same apartment complex as appellant during the summer of 2005. C.G.J. testified that he was ten years old when he met appellant while playing outside of his apartment. Appellant would buy him clothing and toys and would take him and several other children from around the apartment complex on fishing trips. Appellant started spending time alone with C.G.J., which escalated into showing him pornographic magazines and videos and, ultimately, to sexual abuse. Stephanie Jones, who conducted C.G.J.’s forensic interview at the Children’s Assessment Center, testified that C.G.J. disclosed several instances of sexual abuse during this interview. C.G.J.’s aunt, M.N., testified that she saw text messages from appellant on C.G.J.’s cell phone that read, “Why haven’t you called me? I miss you. I can’t live without you. Why are you doing this to me?” M.N. confronted appellant, who did not deny sending the text messages, and, when she asked C.G.J. to see his phone again, he had deleted the messages at appellant’s direction. C.G.J.’s mother, A.G., testified to an incident that occurred after she had sent C.G.J. to live with M.N. in which a very emotional appellant approached A.G. at work, apologized to her, and told her that he loved C.G.J. and wanted to see him. C.G.J. testified that, two years after the abuse occurred, he received a letter from appellant in which appellant 3 stated that he loved and missed C.G.J. and his “hugs and kisses” and requested a photograph of C.G.J. Appellant called several witnesses on his behalf, including two young men who were approximately C.G.J.’s age, who had lived at the apartment complex at the same time, and who testified that appellant would also take them on fishing trips and buy them clothing and toys. These witnesses testified that they had an appropriate relationship with appellant, that they had seen appellant interact with C.G.J., and that appellant’s relationship with C.G.J. appeared appropriate. Before appellant testified on his own behalf, the trial court held a hearing on appellant’s motion to testify free from impeachment based on his prior convictions. The State sought to admit evidence of four prior convictions: a 2009 felony conviction for possession of a controlled substance, a 2006 misdemeanor conviction for assault on a family member, a 2004 misdemeanor conviction for harboring a runaway child, and a 1992 felony conviction for aggravated assault. Appellant argued that the 1992 conviction was inadmissible because it was more than ten years old, and, due to the age of the conviction, evidence of that conviction would be substantially more prejudicial than probative. The trial court ruled that appellant’s 2006 conviction, which was within ten years of the trial date of the charged offenses, “tacked onto” the 1992 conviction and made it not remote and, thus, admissible. The 4 trial court overruled appellant’s objections to the admission of his prior convictions, and the State was allowed to question appellant about all four convictions. The jury subsequently found appellant guilty of all three charged counts of aggravated sexual assault of a child and assessed punishment at sixty-eight years’ confinement for each count. The trial court granted the State’s motion to cumulate and ordered appellant’s convictions in cause numbers 1308988 and 1328806 to run concurrently, and his conviction in cause number 1328807 to be cumulated and be served consecutively. Appellant then appealed to this Court and raised thirteen issues, four of which concerned the admissibility of his prior convictions. This Court held that appellant’s 2006 conviction for assault on a family member was a crime of moral turpitude and was admissible and that any error in admitting appellant’s 2004 conviction for harboring a runaway child was harmless. See Campos v. State, 458 S.W.3d 120, 150–51 (Tex. App.—Houston [1st Dist.]) (“Campos I”), vacated, 466 S.W.3d 181 (Tex. Crim. App. 2015) (“Campos II”). With regard to appellant’s 1992 conviction, we held that because appellant had intervening convictions, the common-law “tacking doctrine” applied such that we treated this conviction as not remote and analyzed its admissibility under Texas Rule of Evidence 609(a), as opposed to Rule 609(b), which is used for prior convictions that are more than ten years old. See Campos I, 458 S.W.3d at 147. We concluded that the probative value of appellant’s 1992 conviction outweighed its prejudicial effect and held that the 5 trial court did not err in admitting evidence of this conviction. Id. at 148–49. We ultimately affirmed the trial court’s judgment of conviction. Id. at 154. Appellant filed a petition for discretionary review and raised the same thirteen issues he had raised on original submission before this Court. While his petition for discretionary review was pending before the Court of Criminal Appeals, that court issued its opinion in Meadows. See 455 S.W.3d 166 (Tex. Crim. App. 2015). In that case, the Court of Criminal Appeals held that the adoption of Rule 609 “supplanted the common-law tacking doctrine” and that convictions that are more than ten years old should be analyzed under Rule 609(b), which provides that remote prior convictions are inadmissible unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. See id. at 170–71. The Court of Criminal Appeals thus abolished the common-law tacking doctrine. On July 29, 2015, the Court of Criminal Appeals granted appellant’s petition for discretionary review solely on ground nine, which raised the admissibility of his 1992 conviction.3 In a per curiam opinion, the court noted that we did not have the 3 The Court of Criminal Appeals specifically stated that the other twelve grounds raised in appellant’s petition for discretionary review were “refused with prejudice.” Campos v. State, 466 S.W.3d 181, 182 n.1 (Tex. Crim. App. 2015). On remand, we therefore consider only the admissibility of appellant’s 1992 conviction, and we do not revisit any of the other issues that appellant raised on original submission and in his petition for discretionary review. 6 benefit of Meadows when we issued our opinion in this case. Campos II, 466 S.W.3d at 182. The Court of Criminal Appeals therefore granted review of ground nine, vacated our judgment, and “remand[ed] this case to the Court of Appeals in light of [its] opinion in Meadows.” Id. Admissibility of Remote Prior Convictions In his sole issue on remand, appellant contends that the trial court erred in admitting evidence of his 1992 conviction for aggravated assault, which occurred more than twenty years before his trial in the charged offenses, because the probative value of that conviction does not substantially outweigh its prejudicial effect. A. Standard of Review The trial court has “wide discretion” to decide whether to admit evidence of a defendant’s prior convictions. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). We therefore reverse this decision on appeal only upon a showing of a clear abuse of discretion. Id.; Davis v. State, 259 S.W.3d 778, 780 (Tex. App.— Houston [1st Dist.] 2007, pet. ref’d). A trial court abuses its wide discretion when its decision to admit a prior conviction lies outside the zone of reasonable disagreement. Davis, 259 S.W.3d at 780 (quoting Theus, 845 S.W.2d at 881). We uphold a trial court’s ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. 7 Crim. App. 2006); see De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). B. Admissibility of Remote Prior Convictions Rule 609(a) provides that a party may attack a witness’s credibility by admitting evidence that the witness has previously been convicted of a felony or a crime of moral turpitude if the trial court determines that the probative value of admitting the evidence outweighs its prejudicial effect. See TEX. R. EVID. 609(a); Meadows, 455 S.W.3d at 170 (noting that, under Rule 609(a), standard is whether probative value of prior conviction “simply outweighs” its prejudicial effect). Rule 609(b) limits the reach of Rule 609(a) by providing that evidence of a prior conviction is inadmissible if more than ten years has elapsed since the later of the date of conviction or release of the witness from the confinement imposed for that conviction “unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Meadows, 455 S.W.3d at 170 (quoting TEX. R. EVID. 609(b)). When deciding whether, in the interests of justice, the probative value of a remote prior conviction substantially outweighs its prejudicial effect, “a court may consider all relevant specific facts and circumstances, including whether intervening convictions dilute the prejudice of that remote conviction.” Id. The Court of Criminal Appeals has set out a non-exclusive list of factors to consider when weighing the probative value of a prior conviction against its 8 prejudicial effect: (1) the impeachment value of the prior crime; (2) the temporal proximity of the past crime relative to the charged offense and the witness’s subsequent criminal history; (3) the similarity of the prior conviction to the charged offense; (4) the importance of the witness’s testimony; and (5) the importance of the witness’s credibility. Theus, 845 S.W.2d at 880; see Leyba v. State, 416 S.W.3d 563, 571 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (applying Theus factors in determining whether remote prior conviction was admissible under Rule 609(b)). Assuming, without deciding, that the probative value of the 1992 conviction did not “substantially outweigh” its prejudicial effect and, therefore, the trial court erred in admitting evidence of this conviction, we conclude that this error was harmless. Error in the admission of evidence is non-constitutional error subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b). TEX. R. APP. P. 44.2(b); Jabari v. State, 273 S.W.3d 745, 754 (Tex. App.—Houston [1st Dist.] 2008, no pet.). We disregard any non-constitutional error that does not affect a defendant’s substantial rights by having a “substantial and injurious effect or influence in determining the jury’s verdict.” Jabari, 273 S.W.3d at 754 (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)); see TEX. R. APP. P. 44.2(b). We should not reverse a conviction for non-constitutional error if, after examining the record as a whole, we have “fair assurance that the error did not influence the jury, or had but a slight effect.” Jabari, 273 S.W.3d at 754 (citing Johnson v. State, 967 9 S.W.2d 410, 417 (Tex. Crim. App. 1998)); Hankins v. State, 180 S.W.3d 177, 182 (Tex. App.—Austin 2005, pet. ref’d) (“[W]e consider the entire record, including testimony, physical evidence, the nature of the evidence supporting the verdict, the character of the alleged error, the State’s theory, the defensive theory, and closing arguments.”). As we noted on original submission, C.G.J. testified that appellant sexually assaulted him on several occasions, and Stephanie Jones, who conducted C.G.J.’s forensic interview at the Children’s Assessment Center, testified that C.G.J. disclosed several acts of sexual abuse during this interview. Campos I, 458 S.W.3d at 150. C.G.J.’s aunt, M.N., testified that she saw text messages from appellant on C.G.J.’s phone stating, “Why haven’t you called me? I miss you. I can’t live without you. Why are you doing this to me?” Id. at 129. M.N. confronted appellant, who did not deny sending the text messages, and later that day, when she asked to see C.G.J.’s phone, C.G.J. had deleted the messages at appellant’s direction. See id. at 129, 145 (holding that appellant’s text messages to C.G.J. were admissible). C.G.J.’s mother, A.G., testified that after she sent C.G.J. to live with M.N., appellant approached her at work, apologized to her, and told her that “he loved [her] son and that he just wanted to see him.” Id. at 129. Appellant was very emotional and was crying during this encounter. Id. C.G.J. also testified that, approximately two years after the abuse occurred, he received a letter from appellant that “included such 10 statements as ‘Love you, [C.G.J.],’ ‘Thinking of you’ with a heart, and ‘If you care, mijo, find me a picture of you and send it with your next letter. Okay? I really miss seeing you. I miss your hugs and kisses.’” Id. at 132. Appellant testified on his own behalf and denied sexually assaulting C.G.J. Id. at 133, 150. Appellant also called as witnesses three young men who had lived at the same apartment complex as appellant and C.G.J. and who testified that appellant did not have an inappropriate relationship with them and that appellant’s relationship with C.G.J. appeared to be appropriate. Id. at 132. On cross-examination, appellant admitted that he had been convicted of aggravated assault in 1992.4 After this testimony, defense counsel immediately requested that the trial court give a limiting instruction, which the court did, stating, “Members of the jury, the information that you just heard about the defendant’s convictions may only be considered in determining his credibility as a witness and for no other purpose.” The trial court also included the following instruction in the jury charge: 4 Appellant also admitted to being convicted of felony possession of a controlled substance in 2009, misdemeanor assault on a family member in 2006, and misdemeanor harboring a runaway in 2004. On original submission, we held that the trial court properly admitted the 2009 and 2006 convictions, and, although we assumed, without deciding, that the trial court erred in admitting the 2004 conviction, we held that the trial court’s decision to admit this conviction did not constitute reversible error. See Campos v. State, 458 S.W.3d 120, 149–51, 151 n.11 (Tex. App.—Houston [1st Dist.]), vacated, 466 S.W.3d 181 (Tex. Crim. App. 2015). 11 You are instructed that certain evidence was admitted before you in regard to the defendant’s having been charged and convicted of an offense or offenses other than the one for which he is now on trial. Such evidence cannot be considered by you against the defendant as any evidence of guilt in this case. Said evidence was admitted before you for the purpose of aiding you, if it does aid you, in passing upon the weight you will give his testimony, and you will not consider the same for any other purpose. Other than briefly asking appellant if he had been convicted of aggravated assault in 1992, the State did not ask appellant about this prior conviction again, and the State did not refer to this conviction during closing arguments. The parties’ closing arguments instead focused on C.G.J.’s credibility and the credibility of the young men who had lived at the same apartment complex. See Leyba, 416 S.W.3d at 570 (noting, in affirming conviction based on harm analysis of erroneously-admitted prior conviction, that “[n]o other evidence [was] introduced regarding [the challenged] conviction, and the prosecutor did not emphasize the conviction during closing argument”). After considering the record, including the evidence presented in support of appellant’s commission of the charged offenses, the lack of emphasis on the 1992 conviction, the trial court’s immediate use of a limiting instruction after evidence of the conviction was admitted, and closing arguments, which did not reference the conviction at all, we conclude that the admission of the 1992 conviction had, at most, a slight effect on the jury and its determination of guilt. See Leyba, 416 S.W.3d at 572; Jabari, 273 S.W.3d at 754. We hold that the admission of the 1992 conviction 12 did not have a substantial and injurious effect on the jury’s verdict and did not affect appellant’s substantial rights, and, therefore, any error in admitting this conviction was harmless. See TEX. R. APP. P. 44.2(b); Leyba, 416 S.W.3d at 572; Jabari, 273 S.W.3d at 754. We overrule appellant’s sole issue on remand. Conclusion We affirm the judgment of the trial court. Evelyn V. Keyes Justice Panel consists of Justices Keyes, Higley, and Brown. Do not publish. TEX. R. APP. P. 47.2(b). 13	01-03-2023	06-11-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431691/	This case has been fully argued. It appears, however, from the brief of the State that, since the filing of the brief for appellant, she has died. Though the method of imparting this information to us is somewhat irregular in form, no reason is apparent why the case should be longer carried upon our docket, or consideration be given thereto. The appeal will be dismissed on our own motion. — Dismissed. ALBERT, C.J., and STEVENS, FAVILLE, KINDIG, and WAGNER, JJ., concur. *Page 319	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431700/	I find myself unable to agree with the opinion of the majority and respectfully dissent. The majority's opinion, as I read it, is based upon the question of contributory negligence. In view of the fact that there was a presumption that the decedent used due care, I think the question of contributory negligence was one for the jury, and I would affirm the decision of the lower court.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431702/	In 1922, and prior thereto, the plaintiff, Fred Hay, was a depositor in the defendant bank. On account of illness in his family, he had moved to Fort Morgan, Colorado, in July 1918, and continued to reside there until July 1928, at which time he returned to Denver, Iowa, his former home. Before plaintiff went to Colorado he rented a safety-deposit box from the defendant bank, and delivered both keys to William Graening, the cashier, who had access to the box until about December 1936; and plaintiff also had a duplicate key, and access to the box at any time after his return in 1928. On March 23, 1920, one H.J. Nevermann and wife executed and delivered to defendant a promissory note for $7,000, bearing 6 percent interest, due in five years after date, and secured by a mortgage covering some garage property and a house and lots belonging to Nevermann in Denver. On April 2, 1921, Nevermann traded the garage property covered by the mortgage for a farm in Howard county, and on April 6, 1921, the defendant bank executed and filed in the recorder's office of Bremer county a partial release Page 636 of the Nevermann mortgage, releasing the garage property, but did not endorse or credit any amount on the note and mortgage debt, but permitted the note and mortgage to remain for the full sum of $7,000. On March 2, 1922, William Graening wrote to plaintiff at Fort Morgan, a letter as follows: "DENVER SAVINGS BANK "Denver, Iowa. March 2d 1922. "Friend Fred: "I have all your deals closed, Chapin and his wife were in here on the 28th, and the Carpenter deal was closed today; and as Ella was writing me a short time ago, I have secured a $7,000.00 loan for you at 6%. This loan is signed by H.J. Nevermann, that is Henry Nevermann here in town, and the mortgage covers his farm and also his property here in town, and is absolutely good. Having some fine weather now. Looks as though Spring was not far off. Had a little snow lately and roads are getting soft. "Fr. Guessend Dein, "Wm. Graening." The plaintiff alleges that he did not discover the fraud or concealment of the fraud until about July 10, 1937. He alleges that while the note and mortgage became due and payable March 23, 1925, that fact was wilfully and intentionally concealed from him by reason of the defendant's continuing to pay the interest on the note and mortgage as the same became due and payable. He alleges that he relied upon the defendant and upon defendant's promise to collect the interest and protect the plaintiff, and that he was not advised that an extension of the note and mortgage ought to be made, but that William Graening procured an extension of the time of payment by obtaining an extension thereof until March 23, 1940, and that neither defendant nor Graening at that time advised plaintiff that the mortgage was not a lien on Nevermann's farm, or that a partial release of the mortgage had been executed and filed releasing the garage property, but concealed such fact from plaintiff. Plaintiff alleges that thereby he was deceived and lulled into silence and into the belief that the note and mortgage were secured by a lien on Nevermann's farm and property in Denver, Iowa. Plaintiff Page 637 alleges that he did not discover otherwise until about July 7, 1937, when an interest payment fell due and was not paid by the bank to plaintiff, and for the first time he was advised by Nevermann that he had never signed the $7,000 note and mortgage and had never paid any interest thereon, and that they were not secured by a lien on a Nevermann farm, such farm having been disposed of in 1915. Demand was made and refused and suit instituted in September 1937. Defendant generally denies the allegations of the plaintiff, and alleges constructive knowledge on the part of plaintiff as to the premises covered by the mortgage, that more than five years had elapsed after he acquired such knowledge and that he was barred by the statute of limitations. Defendant alleges that in July 1928, plaintiff returned from Colorado to Bremer county and personally inspected the note, mortgage, and assignment referred to, and that he then acquired actual knowledge of the value of the note and mortgage and of the premises covered by the same, and that he was therefore barred by limitation. Defendant further claims that the note and mortgage had been in the possession of plaintiff, in his safety-deposit box, from May 18, 1922, that he had a key and constant access to the box, and that he was familiar with the contents of the note and mortgage, or, as a reasonably prudent person, should have had knowledge of the note and mortgage and a description of the contents of the note, mortgage, and assignment. Defendant denies that plaintiff can now rescind, and states that he was guilty of laches and has waived any right that he may have had for rescinding the contract and is now estopped. Trial was had to the court, which found the equities of the case were with the defendant and decree was entered dismissing plaintiff's petition. Denver, Iowa, is a town of about 500 people. Graening was the cashier of the bank, and there was one assistant. As in many banks located as was this one, the cashier appears to have been in full charge and most of the details of the business were transacted by him. The evidence indicates that plaintiff had full confidence in Graening and that, having some money to invest, he probably relied upon Graening to some extent as to the Page 638 value of the investment. Nevermann, who, with his wife, executed the mortgage and note, was a patron of the bank and carried a considerable line of credit, so much so that the bank carried several of his notes without security. Both Graening and Hay were men past middle age. Nevermann and the other two were all old-time acquaintances and friends. It was found by the court, and the evidence shows, that the residence property covered by the mortgage was worth about $6,000, and the garage building from $3,000 to $4,500, in addition to which was the stock of cars and garage equipment. There is no question that Hay accepted the note and security, and the transfer of the fund from his account to the bank was with his consent. The partial release of the Nevermann note and mortgage was made so that Nevermann might make a trade for other land. It is alleged by Graening that a third mortgage was taken on this other Nevermann land which was substituted for the Nevermann property released by the bank, but the evidence does not seem to bear out this statement. Graening testified that Hay was informed of the partial release in 1928, but Hay denies that he acquired knowledge of the release until July 5, 1937, and claims that then, for the first time, he learned that no farm was included in the mortgage. As to the interest alleged to have been paid by the bank on the $7,000 mortgage, the facts show that Nevermann was unable to pay the interest, but that on June 9, 1923, he gave a note therefor for $420, which was turned over to plaintiff and is still unpaid. The interest continued to be paid by Graening or the bank up to March 23, 1936. By its terms the $7,000 note became barred by limitation on March 23, 1935. The extension agreement was procured by Graening at the request of Hay on February 4, 1937. Nevermann, who had no very clear recollection of any of the transactions, as a witness at first denied the execution of the note and mortgage, but later admitted that the $7,000 note and mortgage were, as found by the trial court, at the time of execution a valid note and mortgage and were such at the time of the transfer to Hay. While it is true that interest payments were advanced by the bank or by Graening, yet this does not necessarily indicate fraud, for it is shown that Nevermann himself, for a part of the time, was transacting considerable business with the bank and had a Page 639 fair line of credit. The claim made by plaintiff that the note and mortgage were not valid is not borne out by the evidence. The evidence shows that Hay did not see the note, mortgage, or assignment until his return in 1928. At that time, however, he read over the papers, including the description of the mortgage, and thereafter at various times he examined the contents of his safety-deposit box. Also it is apparent from the evidence that Hay, who was an old acquaintance of Nevermann, on various occasions visited with Nevermann as he met him in the town of Denver, where Nevermann, after 1927 or 1928, was the town marshal. In 1936 a change was made in the management of the Denver bank and Graening retired, his place being taken by one Zunkel. Through a conversation with Zunkel, Hay was informed that the $7,000 note was outlawed and he procured Graening to get an extension agreement from Nevermann, but Nevermann denied, and his denial is not controverted by the evidence, that the extension agreement was valid and claimed that he signed it without knowledge of its contents. Therefore it was the conclusion of the trial court that the $7,000 note was barred on March 23, 1935. [1, 2] There can be little doubt that the plaintiff suffered a legal wrong at the hands of Graening, who had failed to inform him of the prior release and who had informed him that the mortgage included a farm. This leaves for determination the one question whether, at the institution of this action, plaintiff's claim was barred by the statute of limitations. Code, 1935, section 11010, provides: "In actions for relief on the ground of fraud or mistake, and those for trespass to property, the cause of action shall not be deemed to have accrued until the fraud, mistake, or trespass complained of shall have been discovered by the party aggrieved." The trial court held that the discovery referred to in this section does not mean actual discovery, but the time it might have been discovered by ordinary diligence and attention. Citing Nash v. Stevens, 96 Iowa 616, 65 N.W. 825; Clark v. Van Page 640 Loon, 108 Iowa 250, 79 N.W. 88, 75 Am. St. Rep. 219; Simmons v. Western Life Indemnity Co., 171 Iowa 429, 436, 154 N.W. 166, 168 — the rule stated in the Simmons case being: "The statute begins to run not merely from the actual discovery of the alleged fraud, but from the time when it might have been discovered by the use of the ordinary diligence and attention which the average man employs in the care and conduct of his business affairs." The plaintiff alleges that this is a case of fraudulent concealment and that where relief is sought on the ground of fraud, if the fraud has been concealed, the statute of limitations will not commence to run in favor of the defendant until the discovery of the fraud and cannot prevail as a defense if action is commenced within a reasonable time after such discovery. He also alleges that the burden of proof is upon the defendant to show that the plaintiff had knowledge of the fraud more than five years before the commencement of the action, and that mere silence on the part of an agent amounts to a fraudulent concealment and his silence is to be regarded as a continuation of the alleged fraud and concealment of plaintiff's cause of action. The contention of the defendant is that where fraud or actual fraudulent concealment has prevented the plaintiff from obtaining knowledge of his cause of action, the statute commences to run only from the time when the same was, or might, by the use of ordinary diligence, have been discovered. Defendant alleges that the burden is on the plaintiff to establish the avoidance of the statute of limitations, and that mere silence does not constitute fraudulent concealment unless it is shown that a fiduciary relationship existed, and that if such relationship exists it affects only the degree of diligence required. We think the rule in the Simmons case, that the statute is deemed to run from the time the right of action might, by the use of ordinary diligence, have been discovered, has always been followed in our decisions. See Cress v. Ivens, 155 Iowa 17, 134 N.W. 869; Wilder v. Secor, 72 Iowa 161, 33 N.W. 448, 2 Am. St. Rep. 236; Bradford v. McCormick, 71 Iowa 129, 32 N.W. 93; Buhman v. Oltrogge, 229 Iowa 449, 294 N.W. 788. And this rule we think applies to cases of fraudulent concealment. While there may be some doubt as to whether there was actual Page 641 fraudulent concealment in the case at bar, since the only facts which would support such theory relate to the payment of interest by the bank or by Graening, we doubt very much that such payment of interest would, under the circumstances, be considered fraudulent. It must be remembered that Nevermann and the plaintiff were both clients, and that Nevermann's recollection of the transaction is very hazy; also, that it does not necessarily indicate fraud for the bank to look after such matters for its customers. We need not stop to consider whether a confidential or fiduciary relationship existed, since the plaintiff in 1928, on his return, not only had access to the papers in the deposit box but did actually examine them, as is shown by the uncontradicted evidence. It is also uncontradicted that the mortgage and partial release were matters of public record, recorded in Waverly, where Hay has lived ever since his return in 1928. The plaintiff had the papers in his possession, and under examination in 1928, yet he claims that he did not discover the defects of which he complains until 1937. It is a rule supported by many decisions in this state that if the contents of an instrument reveal the existence of fraud, or put any person reading the same on inquiry, the recording of such instrument is notice to all the world, and this applies both to residents and nonresidents. See Bristow v. Lange, 221 Iowa 904, 266 N.W. 808, and the cases cited therein. It seems to us that anyone with ordinary diligence must have discovered the fraud. The plaintiff was a man who was not inexperienced in business, nor was he unintelligent. From the first he seems to have been extremely careless as to the investment. If in fact he made no inquiry as to the location of the farm, its size, the kind or location of the property in Denver, its value, or any other details concerning it, he was more negligent than the ordinary man and guilty of greater negligence than would ordinarily be attributed to a man of his experience and business ability. The plaintiff was fully aware that Nevermann had failed in the payment of interest; at least, at one time he accepted a $420 note for interest, which was never paid but about which plaintiff seems to have had no misgivings, which is certainly contrary to the usual practice of men in business transactions. He examined the papers in the safety-deposit box about July 15, 1928, and Page 642 was able to discover that the assignment was not recorded. It was also apparent at the time of such examination that the principal note of $7,000 was past due three years, and the $420 interest note, due on demand, was delinquent and no interest had been paid on it. This would put the ordinary man, acquainted in any degree with business transactions, on inquiry, aside from the record notice. The only explanation we can conceive as to the plaintiff's actions at that time is that he believed that Nevermann himself would eventually pay the note, and that he relied upon Nevermann rather than upon the security of the mortgage. Other facts are shown by the record which tend to negative the idea of any lack of knowledge on the part of plaintiff. He lived at Waverly, about ten miles from Denver, and, according to his testimony, he went to Denver about once a month, continued to do business at the bank, still kept his paper's in the safety-deposit box and did examine those papers at different times, and they were all in his possession in the safety-deposit box until July 1937. He visited with Nevermann from time to time as he met him. It seems incredible that he failed to make any inquiry during all this period as to the failure to pay interest, as to the farm, or any of the details in relation to it. We think the fact of lack of diligence on the part of plaintiff is fully shown, regardless of the question of burden of proof, since there could have been no fraudulent concealment after July 1928. We think, however, that even in a case of fraudulent concealment under facts such as we have in the present case, the burden would not be upon the defendant, but rather upon the plaintiff to establish the avoidance of the statute of limitations, and that mere silence would not constitute fraudulent concealment except on a showing of fiduciary relationship. See Van Wechel v. Van Wechel, 178 Iowa 491, 159 N.W. 1039; Gamet v. Haas, 165 Iowa 565, 146 N.W. 465; Conklin v. Towne, 204 Iowa 916, 216 N.W. 264; City of Carroll v. Arts, 225 Iowa 487, 280 N.W. 869, and cases therein cited; McGrath v. Dougherty, 224 Iowa 216, 275 N.W. 466; Hodgson v. Keppel, 211 Iowa 795, 804, 232 N.W. 725, 728. The case of Conklin v. Towne, supra, involved the alleged fraudulent sale of stock, where, to avoid the plea of the statute of limitations, there was a charge of fraudulent Page 643 concealment. The court there states (at page 920 of 204 Iowa, 216 N.W. at page 266): "The rule established in this state is that, if the defendant has, by fraud or actual fraudulent concealment, prevented the plaintiff from obtaining knowledge of his cause of action, the statute of limitations commences to run only from the time the same was or might, by the use of proper diligence, have been discovered." And the court further says: "To avoid the plea of the statute of limitations, it was incumbent upon him to allege and prove that he was prevented by the fraudulent conduct or concealment of the cause of action from sooner commencing same." The case further holds, under the authorities, that mere silence would not constitute fraudulent concealment of the cause of action. Defendant contends that the proof is insufficient to show actual fraud on the part of Graening, since the record shows that Hay was not misled in respect to the security on the Nevermann note. This, however, we do not need to consider since we think it is clearly shown by the evidence that as early as July 1928 plaintiff either had full knowledge of the entire transaction or such information as would put him on inquiry. [3] Plaintiff seeks to rescind the contract, but he must do so within a reasonable time after discovery, or after he should, by the exercise of ordinary diligence, have made the discovery. If he fails so to do he would be guilty of laches. The rule is stated in McNair v. Sockriter, 199 Iowa 1176, 1181, 201 N.W. 102, 104: "Where a party seeks to rescind a contract on the ground of fraud or mistake, he must do so within a reasonable time after the discovery thereof, or after he should, in the exercise of ordinary diligence, have made the discovery." See also Clapp v. Greenlee, 100 Iowa 586, 69 N.W. 1049; Campbell v. Spears, 120 Iowa 670, 94 N.W. 1126; Strothers v. Leigh, 151 Iowa 214, 130 N.W. 1019; Brechwald v. Small, 180 Iowa 22, 161 N.W. 20, all cited in the McNair case. The evidence shows that any attempt at rescission was delayed by the plaintiff after knowing of the facts, or after he should, in the exercise of ordinary diligence, have known such Page 644 facts. He is in no position now to place the defendant in statu quo. Such security as the mortgage carried has been lost; there is, at least, considerable doubt as to the validity of the extension agreement which is alleged by Nevermann to have been obtained by fraud and misrepresentation; and the plaintiff has in no way acted promptly. The delay was such that it worked a disadvantage to the defendant. In the case of State Bank v. Brown, 142 Iowa 190, 198, 119 N.W. 81, 84, 134 Am. St. Rep. 412, the court said: "It is an universal rule that, where one is induced to purchase property by fraud and deceit, he must, within a reasonable time after discovering the fraud, rescind the contract, and place the other party in statu quo. In other words, he has an election after discovering the fraud or after the means of knowledge are at hand to treat the contract as valid or to rescind, and, if he fails to act promptly and to rescind, he will be held to have waived his right to do so." It seems to us that the plaintiff, having failed to act with reasonable promptness, would be deemed to have waived any irregularity or fraudulent acts of the defendant's cashier, and by retaining the property he elected to keep it. He would therefore be estopped at this late date to exercise any right of rescission, if ever such right he had. Barnes v. Century Sav. Bk., 165 Iowa 141, 173, 144 N.W. 367, 380; Moore v. Howe,115 Iowa 62, 87 N.W. 750; German Sav. Bk. v. Des Moines Nat. Bk.,122 Iowa 737, 98 N.W. 606; Bank v. Brown, supra. We are convinced that plaintiff's cause of action is barred by the statute of limitations, and that the decree of the district court so holding is correct. The cause is, therefore, affirmed. — Affirmed. RICHARDS, C.J., and MITCHELL, STIGER, HAMILTON, BLISS, and MILLER, JJ., concur. SAGER, J., takes no part. Page 645	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431703/	That portion of the return by the respondent to the writ in reference to the presentation of the matter to the district court is as follows: "To the Honorable District Court in and for Webster County Iowa: "In the examination on April 10, 1929, of Frank Crosby, who was before the March grand jury of Webster County, Iowa, Mr. Crosby being first duly sworn by the foreman of said grand jury, the following questions were asked of the witness Crosby: "Q. Did anybody attempt to pay you for your services? A. I refuse to answer that question on the grounds that it may inscriminate me." "Q. Inscriminate you? Where did you get that word? A. I refuse to answer." "Q. Where did you pick up that word? A. I refuse to answer." "Q. Did you have any understanding that you were to be paid for your services in connection with your election work?" And the witness made the following reply: "I refuse to answer that question." "Q. Is it not true that you were promised money or other valuable thing for your services in working for certain candidates at the city election which was held in March, 1929?" And the witness made the following reply: "I refuse to answer that question." "Q. Did you not, after the election, receive the money or valuable thing that you were promised for your services in Page 474 working at the city election in March, 1929? A. I also refuse to answer that question." The return of the respondent shows the following court entry: "In the District Court of Iowa in and for Webster County. "In the Matter of the March Grand Jury. "Order. "Be it remembered that, on the 11th day of April, A.D. 1929, the grand jury of Webster County, Iowa, duly reported in open court through Hal C. Fuller, foreman of said grand jury, as follows: "Said Hal C. Fuller, foreman, in open court on this 11th day of April, A.D. 1929, one of the days of the regular March, 1929, term of the district court of Webster County, Iowa, stated to the court that Frank Crosby, a witness duly sworn by the foreman of said grand jury, was propounded the following questions, and which questions he refused to answer (he, the said Frank Crosby, making the answers and only the answers to said questions now set forth, as follows): [Here follow the same questions and answers as appear in the presentation made by the foreman to the court.] Said witness, Frank Crosby, being present at the time of said report when said statement by the foreman of said grand jury reported same, was thereupon asked by the court (Honorable Sherwood A. Clock, presiding judge) if he persisted in his refusal to answer said questions, said court ruling and stating that said witness was bound to answer said questions and each of them. The witness, in answer to the interrogation of the court, stated that he did persist in his refusal. Thereupon the court made and hereby enters and renders the following ruling and decision and sentence, to wit: "It is hereby ordered and adjudged that the said Frank Crosby, now present in open court, be and he is hereby ordered by the court and sentenced to be confined in the Webster County jail until he makes answer to said questions propounded to him before the said grand jury. "And it is further ordered that the clerk of the district Page 475 court of Webster County, Iowa, issue a mittimus in accordance with this order. "[Signed] Sherwood A. Clock, "Judge of the District Court of Webster County, Iowa." The mittimus is in substantially the same language. The certificate of Judge Clock to the return to the writ of certiorari alleges the return to contain a full, true, correct, and complete transcript of the records and proceedings, as well as the facts, in the case of "In the Matter of the March Grand Jury," "Investigation of Municipal Election." The words "Investigation of Municipal Election" appear in said certificate for the first time. The return to the writ contains several pages of other matter, alleging, among other things, and in substance, that, at the time the questions were propounded to the grand jury, the grand jury was engaged in making an investigation in reference to a primary election held on the 9th day of March, 1929, for the nomination of mayor and councilmen to be elected in the city of Fort Dodge, in Webster County, Iowa, and in relation to a city election held on the 25th day of March, 1929, to vote upon candidates nominated at said primary election for the office of mayor and councilmen, and that the said Crosby, prior to the time the questions were propounded to him, was advised in reference to the law of Iowa on the subject of immunity to a witness testifying under such circumstances. All of these matters are not of record, and appear for the first time in the return. A motion to strike all these allegations was filed by the petitioner, and the motion has been submitted with the cause in this court. This procedure is brought under Section 13711 of the Code of 1927, reading as follows: "When a witness under examination before the grand jury refuses to testify or to answer a question put to him, it shall proceed with the witness into open court, and the foreman shall then distinctly state to the court the question and the refusal of the witness, and if upon hearing the witness the court shall decide that he is bound to testify or answer the question propounded, he shall inquire of the witness if he persists in his refusal, and, if he Page 476 does, shall proceed with him as in cases of similar refusal in open court." Section 11267, Code of 1927, is as follows: "When the matter sought to be elicited would tend to render a witness criminally liable, or to expose him to public ignominy, he is not compelled to answer, except as otherwise provided." Certain exceptions are provided in Section 11268, Code of 1927, as follows: "In the following cases no witness shall be excused from giving testimony, or from producing any evidence, upon the ground that his testimony or such evidence would tend to render him criminally liable or expose him to public ignominy. * * "5. In prosecutions for the violation of the statutes relating to elections." Section 11269, Code of 1927, is as follows: "No person compelled under the preceding section to testify or produce evidence tending to incriminate him or to expose him to public ignominy shall be prosecuted for any crime which such testimony or evidence tends to prove or to which the same relates. This section shall not exempt any person from prosecution for perjury." It appears from the record that the city of Fort Dodge is a city under the commission form of government. Chapter 326 of the Code of 1927 relates to the government of cities by commission, and Section 6515 of the said Code provides a punishment for entering into any agreement to perform any services in the interest of any candidate for any office provided in the chapter, in consideration of any money or other valuable thing for such services performed in the interest of any candidate. Section 6516 provides punishment for offering to give a bribe, either in money or other consideration, to any elector for the purpose of influencing his vote at any election provided in said chapter; and the section also provides a punishment for receiving or accepting a bribe or other consideration in connection with any election provided for in said Chapter 326. Chapter 605 of the Code of 1927 pertains to bribery and corruption Page 477 in elections. Section 13263, in said Chapter 605, provides for punishment for offering or giving a bribe to any elector for the purpose of influencing his vote at any election authorized by law, and also provides a punishment for the receipt by any elector of any bribe. Section 13264, in said Chapter 605, provides a punishment for entering into any agreement for the payment of money or other valuable thing in consideration of refraining from voting, or for the performance of any service or labor on election day, in the interest of any candidate for office or in the interest of any measure or political party. Section 13265 provides that: "Any person who shall, in consideration of any sum of money or other valuable thing, agree to refrain from voting at any public election, or to induce or attempt to induce others to do so, or agree to perform on election day any service in the interest of any candidate, party, or measure * * or who shall accept money or other valuable thing for such services performed in the interest of any candidate, political party, or measure, shall be punished as provided in the preceding section." Section 13267 provides a punishment for agreeing to perform services, or accepting money or other valuable thing for such services performed in the interest of any candidate. It does not appear from the record under which chapter the investigation was being made by the grand jury. From respondent's argument it seems that the prosecution was being conducted under the provisions of Chapter 605 of the 1927 Code. Section 13711 provides a method of procedure whereby a witness refusing to testify before the grand jury may be brought before the court. It will be noted that, under Subsection 5 of Section 11268 of the Code of 1927, a witness may be compelled to testify "inprosecutions for the violation of the statutes relating to elections." So far as the record in this case shows, no preliminary information was filed against anyone, nor was any defendant bound over to the grand jury under any form of charge for a violation of the statutes relating to elections. The question whether an original investigation by a grand jury without any defendant's having been bound over to it for examination is a "prosecution," is not here decided, and is expressly reserved. Page 478 I. By Sections 12547 and 12548 of the Code of 1927, a record must be made of the contempt proceedings before the court, including all the evidence given by others and a statement of facts within the personal knowledge of the court 1. CONTEMPT: or judge which form a basis for the order of the certiorari: court. It follows that nothing can be considered return: in this court except the record made by the insertion of trial court at the time the order of commitment non-record was made. The return to the writ of certiorari matter. made by the respondent contains much not made of record by the trial court at the time of the commitment, and the motion of the petitioner to strike the same from the record must be, and is, sustained. In support of the foregoing, see Hobson v.District Court, 188 Iowa 1062; Storie v. District Court, 204 Iowa 847. II. We next examine whether the record made by the trial court at the time of the commitment is sufficient to warrant the order made. As was said in Hobson v. District Court, supra: "Proceedings of this character are held in this state to be in their nature criminal, or quasi criminal, and a clear case of contempt must be shown by the evidence where it is required." Further in the same case, this court, speaking through Justice Stevens, said: "The evidence in a proceeding to punish a recalcitrant witness for contempt must show affirmatively that he had refused to givelegal evidence in a trial before the court, or before some other court or tribunal having a right to demand the same." The opinion also contains the language: "Before ordering the witness committed to jail for contempt, the court should have required the grand jury to make sufficient showing to enable it to say that the questions were proper, and that they sought to elicit material and important information." (Citing Rogers v. Superior Court, 145 Cal. 88 [78 P. 344]; Inre Archer, 134 Mich. 408 [96 N.W. 442].) The record, as made at the time of the order of commitment, fails to show that the witness was being interrogated in prosecutions for the violation of the statutes relating to elections, over Page 479 2. CONTEMPT: which the grand jury in Webster County had any record: jurisdiction. It is true, the last two questions mandatory propounded to the witness contain the words, require- "city election which was held in March, 1929." ments. There is nothing in the questions or in the record to indicate what city election. There is nothing contained in this record designating whether the city election held in March, 1929, referred to, was a city election in Fort Dodge or in any one of the numerous other cities and towns in Webster County. It will not do to say that by extrinsic evidence it could be proven that there was no city election in March, 1929, in Webster County except the city election held in Fort Dodge, Iowa. The record must be self-sufficient. Moreover, the record is silent as to whether the grand jury in Webster County was engaged, at the time these questions were asked of Crosby, in an examination as to any violation of the statutes relating to elections. Only by inference from the last two questions asked of the witness can the conclusion be reached that the grand jury was engaged in such an investigation. In this sort of a proceeding, no inference can be indulged. As was said by Chief Justice Wright, in Skiff v. State of Iowa, 2 Iowa (Clarke) 550: "Ordinarily, it is true, the presumption is in favor of the regularity of the proceedings of the district court, and that such court had (when the contrary is not shown) sufficient evidence to justify the judgment rendered. In cases of contempt, however, the provision of the Code is positive, that the evidence in one case and the facts in the other shall be filed and preserved, or entered on the record. The power to punish for contempt is a necessary one; but, at the same time, it should be carefully exercised, in strict accordance with law and a due regard to the rights of those charged." The foregoing language is clearly applicable in this case. III. It will not be contended but that, under the provisions of Sections 13264 and 13265 of the Code of 1927, some of the questions propounded to the witness tended to incriminate him, and he would only be required to answer them because of the immunity granted under Subsection 5 of Section 11268 and Section 11269 of the Code of 1927. Before the witness is required to Page 480 answer and an order of commitment is made for refusing so to do, the record made in the proceedings must be such as that, in and of itself, it furnishes a complete basis of immunity from prosecution. In other words, it must clearly show all the essential elements furnishing jurisdiction for the order. It must also show all the essential facts to afford the witness immunity under the statute. As was said in Ex Parte Napoleon, 65 Tex. Cr. 307 (144 S.W. 269): "Before a witness can be compelled to give evidence about any matter which would incriminate him, he must be assured by the proper officials, in a legal manner, that he will not be prosecuted * * he was not compelled to answer the question until immunity from punishment was guaranteed him. If the record disclosed that he was guaranteed immunity from punishment for the offense about which he was being questioned, we would hold that he would be compelled to answer * * *." The witness is entitled to a record showing such immunity. It follows that the order of commitment made by the district court must be and is hereby annulled, and the petitioner is discharged. — Order annulled. Petitioner discharged. ALBERT, C.J., and EVANS, KINDIG, and WAGNER, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/4067630/	ACCEPTED 03-15-00174-CV 5648394 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/11/2015 9:18:09 PM JEFFREY D. KYLE CLERK No. 03-15-00174-CV Levi Morin, FILED IN Appellant, 3rd COURT OF APPEALS AUSTIN, TEXAS v. Third Court6/11/2015 of Appeals 9:18:09 PM Law Office of Kleinhans Austin, Texas JEFFREY D. KYLE Clerk Gruber, PLLC, Appellee. Morin’s Motion for 1-day Briefing Extension The bronchitis of Morin’s counsel is apparently impervious to anti- biotics; it flared up again, requiring that he be in bed to recover for most of June 10 and 11. He was thus unable to complete Morin’s opening brief, and he asks the Court to extend the filing deadline by one more day. This is Morin’s second request for an extension; it would move the briefing deadline from yesterday, June 10, to today, June 11. This extension won’t prejudice the appellee. Morin seeks this exten- sion not for delay, but so justice can be done. Morin prays that the Court set June 11, 2015, as the deadline for him to file his opening brief. He further prays for all other relief to which he may be entitled. Respectfully submitted, The Olson Firm PLLC /s/ Leif A. Olson Leif A. Olson leif@olsonappeals.com State Bar No. 24032801 PMB 188 4830 Wilson Road, Suite 300 Humble, Texas 77396 (281) 849-8382 Counsel for Appellant Levi Morin Certificate of Conference I attempted to confer on this motion with Keith Kleinhans, counsel for the appellee, by sending him a draft copy of it at 5:07 p.m. on June 11. By 9:00 p.m., I hadn’t received a response. Because it has opposed other extension requests, I presume that the firm also opposes this one. /s/ Leif A. Olson Certificate of Service On June 6, 2015, I served a copy of this Morin’s Motion for 14-day Briefing Extension upon Kimberly Kleinhans by electronic service with a courtesy copy to Keith Kleinhans (keith@lawofficeofkg.com) by email. Law Office of Kleinhans Gruber, PLLC Kimberly G. Kleinhans kim@lawofficeofkg.com 700 Lavaca, Suite 1400 Austin, Texas 78701 Counsel for appellee /s/ Leif A. Olson Case 03-15-00174-CV, Morin v. Kleinhans Gruber Page 2 of 2 Morin’s Motion for 1-day Briefing Extension	01-03-2023	09-29-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431692/	I. A question of procedure is raised herein, of which we will first make disposition. Appellant herein filed his abstract of record, to which there was no certification of attorneys attached as to 1. APPEAL AND the correctness of the same. The appellee filed ERROR: an additional abstract of record, setting out abstracts: certain exhibits and documentary evidence, and presumption in the certificate attached thereto says: of complete- ness. "But we aver that said additional abstract of record does not contain all of the evidence omitted from appellant's abstract of record, and appellee denies that said abstract of record, and this additional abstract of record together, set forth all of the evidence offered and introduced on the trial." It is urged in argument that this case cannot be heard de novo because of the fact that not all of the record made in the district court is now before this court. Prior to the time the Code of 1897 went into operation, there were numerous decisions by this court, holding that an abstract of record must contain a certificate from the attorneys that the abstract contained all the evidence offered or introduced in the trial court. This rule prevented the submission of many cases in this court, because of the lack of such certificate. In order to avoid this situation, the Code of 1897, Section 4118, provided: "Printed abstracts of the record shall be filed in accordance with rules established by the Supreme Court, and shall be presumed to contain the record, unless denied or corrected by subsequent abstract." The effect of this section is to make a presumption that the abstract, when filed, contains all of the record, in the absence of a denial or correction by subsequent abstract. Under the rules of this court which became effective January 1, 1911, Rule 32 was adopted, incorporating the above quoted part of Section 4118 of the Code of 1897, and adding thereto the following: "Every denial shall point out as specifically as the case Page 988 will permit, the defects alleged to exist in the abstract. A denial by appellee shall be taken as true unless the appellant sustains his abstract by a certification of the record." A reference to the above quoted certificate from the appellee's amended abstract raises the question of whether or not the denial there made is sufficient to call for the penalty for failure to comply with the rule. The denial referred to does state that, at the time of its filing, the original abstract, together with the additional abstract of the appellant, does not set forth all of the evidence offered and introduced on the trial of the case. This calls for an application of the above rule of this court. It is to be noted, however, that, if the appellee wishes to deny the correctness of the appellant's abstract, the rule requires that he must point out, as specifically as the case will permit, the defects alleged to exist in the abstract. In the case of Kossuth County St. Bank v. Richardson, 132 Iowa 370, at 377, it appears that the appellee denied that the abstract, with amendments and additions thereto, contained all of the evidence offered, introduced, read, or received upon the trial; and it was insisted, in that case as in this, that because of this denial the cause could not be heard de novo. It was there said that this was not a sufficiently specific pointing out of the defects alleged to exist in the abstract, and it was held that this was not a sufficient compliance with the rule of the court to be considered a denial. In Kubli v. First Nat. Bank, 193 Iowa 833, at 837, we had under consideration a statement as follows: "We further deny that appellant's abstract is a complete abstract of the whole record in the case, and we certify that the two abstracts together do not contain all of the evidence offered and received upon the trial of the cause." Commenting on such denial, we said: "The mere general allegation by appellee that the appellant's abstract does not disclose all the evidence is too general, and will not be considered. * * The denial, to be of any effect under our rules, must `point out, as specifically as the case will permit, the defects alleged to exist in the abstract.' In the absence of such specific denial, `the abstract, with amendments and additions, is presumed to contain the record with sufficient Page 989 completeness to enable the court to pass upon every question raised.'" We have no disposition to digress from these pronouncements, and therefore the contention of the appellant is overruled. II. On the 12th of May, 1900, the defendant Hugo Guldner, who was then the husband of appellee herein, acquired title to a residence lot in the city of Davenport. He erected a dwelling house thereon, which he and his family 2. TAXATION: subsequently occupied as a homestead. The sale: defendant Jacob Guldner is the brother of the equitable defendant Hugo Guldner. The relation between the redemption: families of these two brothers seems to have justifiable been friendly and cordial until the date of the circum- divorce proceedings, to which reference is stances. hereinafter made. Trouble arose between Hugo and the plaintiff herein, resulting in the appellee's leaving her husband, about the 12th of October, 1921, and staying thereafter with her mother at the mother's residence in Davenport. Plaintiff's divorce was granted to her on the ground of cruel and inhuman treatment; and she of course was, therefore, warranted in leaving the husband when she did. The decree of divorce was entered in the district court of Scott County, Iowa, on the 16th day of January, 1922. Among other things, the appellee was decreed to be the owner of an undivided two-thirds interest in the property in controversy, and appellee was decreed to be entitled to the use and occupancy of said real estate, or to all rents or income produced therefrom so long as she lived, and continued to own the undivided two-thirds interest therein, it being the intention to give the plaintiff the right to occupy or rent the entire premises, including defendant's one third, without liability to account to him, until such time as she disposed of her own title, or until her death; in either of which events, Hugo Guldner was entitled to the immediate possession and control of the undivided one third thereof, which was granted him by the decree. On the 5th day of June, 1918, the city of Davenport levied a special assessment for paving against such property. This special assessment was never paid; and on the 24th of February, 1919, the property was sold for the delinquent special assessment Page 990 to one G.H. Peck, to whom a certificate of purchase was issued. On the 14th day of January, 1921, Peck assigned said certificate of purchase to the appellant, Jacob Guldner. After the appellee herein left the homestead, in October, 1921, Hugo Guldner continued to occupy the same, but moved therefrom on the 19th day of December, 1921. On the 15th day of the same month, Jacob Guldner caused notice to be served on his brother Hugo of the expiration of the period of redemption from the tax sale hereinbefore referred to. On the 20th day of March, 1922, tax deed was duly issued to Jacob Guldner. On the 4th day of April following, he served a three-day notice on the appellee herein to quit and surrender said premises. On the expiration of said notice, he instituted a forcible entry and detainer case in the justice court, against the appellee herein, for possession of the property in controversy. The appellee herein thereupon instituted this action, praying that she be permitted to redeem from said tax sale and that her title be quieted, and for temporary injunction to restrain the justice proceedings of forcible entry and detainer. The defendant Hugo Guldner defaulted, and the appellant, Jacob Guldner, introduced no evidence on the trial of this case, except to introduce his tax deed to the property. So far, there seems to be no dispute as to the above recited facts. The evidence in the case shows that the appellee herein had had very little business experience, and depended upon her husband to look after the financial affairs of their domestic concern. At the time of the divorce proceedings, and prior thereto, the husband, Hugo Guldner, represented to his then wife that the property was free from incumbrance, and that all taxes had been paid on the same; and in pursuance of this, the decree was entered, fixing the wife's rights in said property as hereinbefore set out. She knew nothing of the existence of this outstanding tax sale until the notice was served, to dispossess her. Jacob Guldner was conversant with the family relations between Hugo Guldner and his wife, and their troubles. The association of these two brothers, for some time prior to the divorce proceedings, was intimate. It seems that Jacob ran a restaurant, and Hugo boarded with him most of the time. Page 991 Jacob Guldner never, at any time prior to the service of his notice on the wife to dispossess her, advised her about his owning the tax deed. He made no effort to serve a notice on her of the taking of the tax deed; and another peculiar circumstance is that his brother moved out of said property about three days after Jacob Guldner had served notice on him with reference to the deed. The tax certificate, when it was originally issued, was issued to G.H. Peck, who was an attorney connected with the firm of attorneys representing Jacob Guldner. It is shown by the evidence that Peck at no time had any money with which to purchase tax deeds; and we are quite satisfied from the record that the deed was in fact purchased for and at the instance of Jacob Guldner. We are further satisfied from the record that there was a secret understanding between Jacob Guldner and his brother Hugo, and that they combined to defeat this woman of her rights in the property. The whole record in this case abundantly satisfies us that the appellee was wholly ignorant of the exact situation as it relates to this tax sale, and that her husband lulled her into security while the brother Jacob carefully refrained and secreted from her the knowledge of his relation to the property and his relation to this tax sale. The action of the appellant, Jacob Guldner, seems to us not to have been in good faith. The appellant, Jacob Guldner, by this process acquired a residence property valued at something over $4,000, on an investment of less than $50. From this record we are satisfied that the district court properly found the equities to be with the plaintiff. Section 1440 of the Code of 1897 provides that any person who is entitled to redeem in the proceedings resulting in a tax deed shall do so in an equitable action, in which all persons claiming an interest to the land derived from the tax sale are made defendant; and prohibits redemption in any other manner. The plaintiff has availed herself of this statutory provision; but, in order to maintain her action successfully, she must show equitable circumstances as an excuse for not having made redemption herself. These equitable circumstances must vary, necessarily, with the various situations that may arise, and no Page 992 fixed rule can be made that will control all cases, as to just what such equitable circumstances are that will permit an action in equity to redeem as to the sale, as well as the deed. Bitzerv. Becke, 120 Iowa 66; Teabout v. Jaffray Co., 74 Iowa 28. Equity will afford relief and permit redemption under circumstances where the failure to redeem within the statutory time is due to a mistake of fact. Noble v. Bullis, 23 Iowa 559;Shoemaker v. Lacy, 38 Iowa 277; Henderson v. Robinson, 76 Iowa 603. Where a purchaser under contract was in possession, and notice of expiration was served upon him, followed by a tax deed, and the real owner subsequently forfeited the contract, it was held that the owner was entitled in equity to redeem. I.F. S.C.R.Co. v. Storm Lake Bank, 55 Iowa 696. Of course, fraud in the procurement of the tax deed will always be available as a basis for equitable relief. Connolly v.Connolly, 63 Iowa 202; Leas v. Garverich, 77 Iowa 275. It need not be actual fraud, but may be constructive fraud. First Cong.Church v. Terry, 130 Iowa 513; Ellsworth v. Cordrey, 63 Iowa 675;Dohms v. Mann, 76 Iowa 723; Lynn v. Morse, 76 Iowa 665. Close family ties, intimate associations, and actual trust and confidence are also matters that should be considered in cases of this kind. Lampman v. Lampman, 118 Iowa 140; Bettendorf v.Bettendorf, 190 Iowa 83. Plaintiff was not required to make a tender that will be sufficient in law, but he may offer in his 3. TAXATION: pleadings to pay the amount found due by the sale: court. This is sufficient. Crawford v. Liddle, equitable 101 Iowa 148; Nicodemus v. Young, 90 Iowa 423. redemption: That the costs were properly taxed against the sufficiency defendant, see Broquet v. Sterling, 56 Iowa 357. of tender. This disposes of all material questions in the case, and the ruling of the district court was right. — 4. TAXATION: Affirmed. sale: equitable redemption: costs. FAVILLE, C.J., and EVANS and ARTHUR, JJ., concur. *Page 993	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431693/	This is an "icy" sidewalk case. The challenge of the city has to do with the sufficiency of the evidence to sustain the verdict, and the propositions of the appellant upon which reversible error is predicated are as follows: First, that the ice on the sidewalk upon which appellee slipped was Page 1184 not of the character to constitute negligence in permitting it to be there. Second, the condition complained of had not existed for a sufficient length of time to give the city constructive notice thereof. Third, that the city may, for a reasonable time, wait for a change in temperature to remedy the condition complained of, without being guilty of negligence. Each of the foregoing points is sustainable under the record facts presently and briefly stated. A municipality is not an insurer of the condition of its sidewalks in relation to snow and ice. Sufficient time must elapse between the formation of the defect, as alleged, and the date of the accident, to place the municipality on inquiry, and to allow a reasonable opportunity to remedy the defect. Unless this is shown by the plaintiff, the city may invoke the theory of non-liability. In the instant case, it is undisputed that the city did not have actual notice of the condition through any of its representatives or officials, and there is no claim that anyone, city or citizen, had knowledge or notice of the condition alleged to have been the proximate cause of the injury as claimed by plaintiff. The plaintiff herself testified: "I came along and slipped on some ice. I did not notice any difference between the spot where I slipped and any other spot that I had walked on, until my foot slipped on this glare of ice. It looked just like all the rest of the sidewalk. It had a covering of about one fourth or one sixteenth of an inch of ice." The record presents one of those sudden transformations in weather or climatic conditions in this state of which an Iowa court might well take judicial notice. We all know that cities are officered and managed by human agencies, which are subject to finite limitations. No principle of law or justice holds a municipality liable for a failure to do the impossible, and in a case of this character, climatic conditions must be considered. As pointed out, there is no evidence tending to prove that anyone had observed that the walk in question was in a dangerous condition prior to the time plaintiff fell thereon. It is said inBroburg v. City of Des Moines, 63 Iowa 523, 525: "Under such circumstances, it cannot be assumed that the city or its officials had knowledge of what did not exist, or, Page 1185 which is the same thing, which the evidence fails to show existed." We have, in the instant case, a film of ice suddenly formed by reason of a slight change in temperature. It would have been practically a physical impossibility for the city to remove the ice in the time intervening between its formation and the injury to plaintiff. It is undisputed that there was no ice on the sidewalk in question on the morning of the accident, or the day before. It is only when the ice or snow is suffered to remain upon the sidewalk until, by tramping of pedestrians, freezing or thawing, or other cause, the surface thereof has become rough, ridged, round, uneven, or irregular, so that a person in the exercise of ordinary care cannot pass over it without danger of falling, that the defect is such as to render the municipality liable. Dempseyv. City of Dubuque, 150 Iowa 260. The instant record shows that no appreciable interval of time existed between formation of the film of ice and the injury. Plaintiff's own testimony discloses that on the day of the accident there was a slight fall of snow. It began to fall about 1 o'clock P.M. on January 26, 1926, the day of the accident, and quit about 4 o'clock on said day. Plaintiff's accident occurred about 15 minutes after the snow ceased to fall. The maximum temperature on that day was 34 degrees above zero, and the minimum was about 19 degrees above zero. At no time on the 25th, 24th, 23d 22d, or the 21st of January was the temperature above freezing. There is but one conclusion, to wit: that the snow melted during the early afternoon of January 26th, and that the thin film of ice formed shortly thereafter. Under such circumstances, it cannot be assumed that the city or its officials had knowledge of a thing which the evidence "failed to show existed." See Smithv. City of Sioux City, 200 Iowa 1100; Eickelberg v. City ofWaterloo, 197 Iowa 1219; Ray v. City of Council Bluffs, 193 Iowa 620; Kortlang v. City of Mt. Vernon, 129 App. Div. 535 (114 N.Y. Supp. 252); Vonkey v. City of St. Louis, 219 Mo. 37; Harringtonv. City of Buffalo, 121 N.Y. 147 (24 N.E. 186); Armstrong v. Cityof Monett (Mo.), 228 S.W. 771. The general rule in all jurisdictions is that a municipality must have a reasonable time to perform a legal duty of this *Page 1186 character. Smith v. City of Chicago, 38 Fed. 388; Landolt v. Cityof Norwich, 37 Conn. 615; Blakeley v. City of Troy, 18 Hun (N.Y.) 167; Stanton v. City of Springfield, 94 Mass. 566; Bull v. Cityof Spokane, 46 Wn. 237; Village of Leipsic v. Gerdeman, 68 Ohio St. 1; Hyer v. City of Janesville, 101 Wis. 371; Corey v. City ofAnn Arbor, 124 Mich. 134. It affirmatively appears from the record that there is insufficient evidence to sustain the verdict in favor of the plaintiff. Defendant's motion for a directed verdict should have been sustained. The judgment entered is — Reversed. EVANS, C.J., and ALBERT, MORLING, and WAGNER, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431734/	Market Street in the city of Ottumwa runs north and south. Appellant is the owner of a building on the west side thereof, which abuts upon the street. Appellant acquired title to the property March 31, 1925, and on April 1st leased it to the S.S. Kresge Company. Long prior to these transactions, the owner of the building constructed a down spout on the east side of the building, adjacent to the sidewalk, for the purpose of carrying water off the roof thereof. The down spout was constructed of galvanized iron, and conveyed the water through a tile, into which it was inserted at the lower end, into a sewer. Early on the morning of December 16, 1925, while appellee and her husband were walking on Market Street, she fell, and was severely injured. The cause of her fall is alleged to have been an accumulation of ice on the sidewalk immediately opposite the down spout. The evidence showed that there was a hole in the down spout, about three feet and three inches above the sidewalk. It is the claim of appellee that snow, recently falling on the roof of the building, had melted, the preceding day, and that the water, escaping from the hole in the down spout, fell upon the sidewalk, freezing, and causing ice to form, Page 384 as previously stated. Evidence was introduced which tended to show, and from which the jury might have found, that the defect in the down spout existed at the time of, and for several months prior to, the acquisition of title to the building by appellant and the execution of the lease to the S.S. Kresge Company. We will first dispose of the appeal of the Realty Company. I. The duty of maintaining the streets and sidewalks in a reasonably safe condition is imposed by statute upon cities and towns. Section 5945, Code, 1927. The duty thus imposed by statute upon municipalities does not, however, relieve 1. MUNICIPAL property owners or others from the duty not to CORPORA- obstruct or place dangerous instrumentalities TIONS: thereon, so as to endanger the safety of the torts: public rightfully using the same, nor from defects or liability for damage occasioned thereby. Perry obstructions v. Castner, 124 Iowa 386; Edwards v. Hasel, 157 in streets: Iowa 416; City of Ottumwa v. Parks, 43 Iowa 119; liability of Calder v. Smalley, 66 Iowa 219; Atkinson v. property Sheriff Motor Co., 203 Iowa 195. This rule has owner. been applied in many cases and under a great variety of facts. It is elementary that the owner of a building abutting upon a public street may not lawfully collect water accumulating from rain or snow upon the roofs of buildings, and by some artificial means discharge the same upon the sidewalk or street, where it freezes and forms ice. Atkinson v. Sheriff MotorCo., supra; Betts v. Carpenter, 239 Mich. 260 (214 N.W. 96);Benard v. Woonsocket Bobbin Co., 23 R.I. 581 (51 A. 209);Tremblay v. Harmony Mills, 171 N.Y. 598 (64 N.E. 501); Reedy v.St. Louis Brew. Assn., 161 Mo. 523 (61 S.W. 859); Stephens' Admr.v. Deickman, 158 Ky. 337 (164 S.W. 931); Cerchione v. Hunnewell,215 Mass. 588 (102 N.E. 908); Hynes v. Brewer, 194 Mass. 435 (80 N.E. 503); Field v. Gowdy, 199 Mass. 568 (85 N.E. 884). Nor may such owner negligently permit the water to escape from a defective down spout or other agency and accumulate upon the sidewalk so as to freeze and cause injury to others. Stephens'Admr. v. Deickman, supra; Hynes v. Brewer, supra; Woram v. Noble, 41 Hun (N.Y.) 398; Delaware, L. W.R. Co. v. Madden, 241 Fed. 808. It is further alleged in the petition that, long prior to the construction of the down spout in question, the city council of Page 385 the city of Ottumwa enacted an ordinance making it "unlawful for any person, firm, partnership or corporation to permit any of the down spouts or gutters from any building to be so constructed as to directly or indirectly discharge water upon any of the sidewalks of the city," and requiring that "all down spouts or discharge gutters shall be constructed so as to run the water from the building which they drain, into the gutters or sewers of the city so as not to permit the water discharged therefrom to run upon or spread over the surface of any sidewalk." The court interpreted this ordinance as imposing an affirmative duty upon appellant to maintain the down spout in a reasonably safe condition, so as not to directly or indirectly discharge water upon the sidewalk. Before considering this theory of the case, we desire to dispose of another proposition urged by appellant for reversal: namely, that the written lease by which the building and premises in question were leased to the S.S. Kresge Company contained a provision requiring the lessee to, "at its own expense, make any and all repairs which may be necessary to said premises or any part thereof, damage by fire and unavoidable casualty excepted;" and that this condition of the lease relieved it from liability for damages occurring during the term of said lease because of negligence on the part of the tenant to repair the down spout, or in failing to keep it in good condition. The law is doubtless well settled in this and most, if not all, other jurisdictions that the landlord who has parted with full possession and control of his premises by lease to a tenant is not liable for injuries to third persons caused 2. LANDLORD AND by the negligence of the tenant. Starr v. TENANT: Sperry, 184 Iowa 540; Dillehay v. Minor, 188 premises: Iowa 37; Willis v. Snyder, 190 Iowa 248; Morse negligence v. Houghton, 158 Iowa 279; Burner v. Higman of tenant: Skinner Co., 127 Iowa 580. But, on the other liability hand, if the nuisance exists at the time the of landlord. lease is executed, a covenant therein requiring the tenant to make repairs at his own expense will not relieve the landlord from liability for injuries occasioned thereby.Maloney v. Hayes, 206 Mass. 1 (91 N.E. 911); Ames v. Brandvold,119 Minn. 521 (138 N.W. 786); Lufkin v. Zane, 157 Mass. 117 (31 N.E. 757); Dalay v. Savage, 145 Mass. 38 (12 N.E. 841); Wixon v.Bruce, 187 Mass. 232 (72 N.E. 978); Cerchione Page 386 v. Hunnewell, supra; Swords v. Edgar, 59 N.Y. 28; Fenno v. Gay,146 Mass. 118 (15 N.E. 87); Wunder v. McLean, 134 Pa. St. 334 (19 A. 749); Harte v. Jones, 287 Pa. St. 37 (134 A. 467);Samuelson v. Cleveland Iron Min. Co., 49 Mich. 164 (13 N.W. 499);Gardner v. Rhodes, 114 Ga. 929; Lee v. McLaughlin, 86 Me. 410;New Castle v. Kurtz, 210 Pa. St. 183 (59 A. 989). This rule appears to have been quite generally adopted in other jurisdictions, but has not squarely arisen in this state. The proposition urged by appellant at this point, although supported by authority, is not decisive of this case. As already stated, the evidence, more or less indefinite in character, it is true, disclosed that the defect in the down spout had continuously existed for months prior to the date of the lease. Some paragraphs of the court's charge 3. MUNICIPAL to the jury were apparently framed on the theory CORPORA- that the jury might find, under this evidence, TIONS: that the condition complained of antedated the ordinances: execution of the lease, and that, if it did, the "construc- terms of the lease did not constitute a defense. tion" as Other paragraphs of the charge, however, clearly imposing submitted the case to the jury upon the theory continuous that the defect in the down spout existed in duty. violation of the provisions of the ordinance, and that, if the jury so found, it constituted negligence. It is of these instructions that appellant complains. Appellant rests its contention upon the hypothesis that the owner of the building, having constructed a down spout of sufficient size and material and in a manner to carry water accumulating on the roof into a sewer, and so as not to discharge it directly or indirectly upon the sidewalk, has met the full requirement of the ordinance. The argument of counsel proceeds on the theory that the word "constructed," as used in the two sections of the ordinance, must be limited in their scope and application to the original down spouts, and cannot be so interpreted as to impose an obligation on the owner to maintain the same in its original condition. This argument is based largely upon the thought that the ordinance is penal in character, and must be strictly construed. Primarily, the duty of the property owner is to comply with the ordinance in the construction of down spouts. This must be full and adequate. The purpose of the ordinance obviously was to prevent the owner Page 387 of buildings from discharging water therefrom upon the sidewalk in such a manner and under such conditions as to imperil the safety of the public using the same. The ordinance does not prescribe the material necessary to be used in the construction of down spouts. A building, as ordinarily constructed in cities and towns, is permanent in character. Likewise, the streets upon which it abuts, and the improvements, such as sidewalks and pavement, are of a similar character, and likely to continue indefinitely. The danger to be apprehended from the discharge of water by the owner of a building upon the sidewalk is, in this climate, a continuing one. A down spout, constructed of perishable material, is not ordinarily as permanent in character as the building to which it is attached. The ordinance does not contemplate any limitation in point of time. The duty imposed is as permanent as the possible conditions sought to be remedied. The question is not, therefore, whether a duty is imposed upon the owner of a building to maintain a down spout as originally constructed, but what scope and effect are to be given to the plain terms thereof. The plain contemplation of the ordinance is that down spouts shall be so constructed and of such material as to permanently prevent the conditions sought to be avoided. In other words, the duty imposed is an original and continuing one. No one would contend that an ordinance requiring the roofs of buildings to be constructed of fireproof material would not be violated if, after the destruction of the original roof, it was replaced by one constructed of shingles or other non-fireproof material. The construction thus placed upon the ordinance harmonizes with the purpose and intent of the city council in its enactment, and gives full effect thereto. The exceptions preserved to the instructions complained of at this point must be overruled. Many authorities are cited by counsel on both sides, remotely bearing upon the question we have been discussing. We deem it unnecessary either to cite or distinguish them from the case before us. The instructions properly submitted the case to the jury on the theory indicated, on which it was tried. Red LakeFalls Mill. Co. v. City of Thief River Falls, 109 Minn. 52 (122 N.W. 872). II. The evidence tended to show that, as the result of the injuries to appellee, a blood clot, called a hematoma, appeared on the right side of the uterus, and that it could have Page 388 4. DAMAGES: been removed by an operation, and that, if this duty to were done, the health of appellee would probably minimize: be improved. No operation has been performed. instruc- Appellant requested the court to instruct the tions. jury, in substance, that it was the duty of appellee to take such steps as an ordinarily careful and prudent person would have taken, in the exercise of ordinary care, to reduce her damages to the minimum, and that, if the jury believed from the evidence that her condition would be improved by the removal of the blood clot, and it was advised by a competent physician and surgeon that such operation was necessary to that end, the damages to be allowed, if any, should be reduced accordingly. The court refused this instruction, and gave one on its own motion, which, in effect, told the jury that it was the duty of appellee "to make use of reasonable means to effect as speedy and complete a cure as could be reasonably accomplished, under all the circumstances, and that, if she failed to do so, she could not recover for any injuries, suffering, or disability caused or induced by such failure." The court further told the jury that appellee was not required to undergo a serious or speculative surgical operation, "but if, by slight expense and by slight inconvenience, plaintiff might have avoided the consequences of her injury, if any, it was her duty to do so, and if a slight operation, involving but slight inconvenience, would have relieved plaintiff, or some of her suffering or disability, if any, it was her duty to alleviate her injury, and if she failed and neglected to do so, she cannot recover for suffering, inconvenience, or disability that might thus have been avoided." The instruction requested by appellant was taken from Ward v.Ely-Walker Dry Goods Bldg. Co., 248 Mo. 348 (154 S.W. 478), in which case it was upheld. The instruction given by the court on its own motion is based almost literally upon the language of this court in Bailey v. City of Centerville, 108 Iowa 20, andWhite v. Chicago N.W.R. Co., 145 Iowa 408. The Supreme Court of Washington, in Dahl v. Wagner, 87 Wash. 492 (151 P. 1079), in discussing a similar case, would appear to support the Missouri rule. Other cases brought to our attention tend to support the rule announced in the instruction. Leitzell v. Delaware, L. W.R. Co., 232 Pa. St. 475 (81 A. 543); Maroney v. Minneapolis St. L.R. Co., 123 Minn. 480 Page 389 (144 N.W. 149); Martin v. Pittsburgh Railways Co., 238 Pa. St. 528 (86 A. 299). Whether the instruction complained of might have gone somewhat further in the statement of the law, and imposed a higher duty upon appellee, we need not, under the facts of this case, determine. The operation, if one had been had, would, we gather from the evidence, have been a comparatively simple one. The medical witnesses, however, testified that, as an anesthetic would be required, it would not be without the possibility of danger. The expense necessary to be incurred, according to the testimony of the experts, would have been several hundred dollars. The instruction was in harmony with the prior decisions of this court, and we think it clearly met all of the requirements of the case. III. Testimony was received tending to show that, some six days after the accident, the down spout was clogged with ice. Objection was interposed to this testimony upon the ground that it was remote. The objections were properly 5. MUNICIPAL overruled. The evidence tended to show that the CORPORA- weather conditions following the accident were TIONS: much the same as on the day thereof. There was torts: variation in the temperature, as shown by the evidence: testimony, but not such as to effect substantial condition changes in the condition of ice formed and subsequent existing in the pipe at the time of the to injury. accident. IV. Other evidence to which objection was interposed by appellant was admitted by the court. The ruling thereon, if erroneous, was necessarily without substantial prejudice to appellant. It is further urged by appellant that the verdict of the jury was the result of passion and prejudice, and that there was misconduct of witnesses occurring at the trial, and other alleged irregularities that were prejudicial to appellant. There is nothing whatever in the record to support the contention that the verdict was the result of passion and prejudice on the part of the jury, nor should it be said that the alleged misconduct of witnesses and other irregularities complained of were of a character to affect the result and were, therefore, prejudicial. We have not discussed the propositions relied upon by appellant seriatim, nor in the order in which they are treated in the briefs filed. What we have said, however, sufficiently indicates the Page 390 court's views upon all of them, and sufficiently disposes of its appeal. V. We come now to consider the cross-appeal of plaintiff-appellee. The court, in submitting the issues against the city, gave the customary instruction on the subject of notice. Error is predicated on the giving of 6. TRIAL: this instruction, upon the theory that the court instruc- should have told the jury that, if the city had, tions: or should have had, notice of the defective correct but condition of the down spout and that same had nonamplified become a nuisance because ice had previously instruction. accumulated upon the sidewalk on account thereof, it was unnecessary for the city to have further notice of the condition of the walk at the time of the accident, or time to remove the same. The instruction given was abstractly correct. If appellee desired a further instruction on the subject, — that is, one that would more fully have submitted her theory of notice to the jury, — an instruction to that effect should have been requested. If the city knew, or in the exercise of reasonable care should have known, of the presence of ice upon the sidewalk in a condition likely to cause injuries to pedestrians, and it failed to remove the same within a reasonable time, it was liable for damages to any person injured. Such was the language and purport of the instruction given. The question was one of notice, and not of an original cause of action. This is the only ground relied upon by appellee, on her cross-appeal, for reversal. In our opinion, it is without merit. For the reasons already indicated, the judgment in favor of the city and also against the Realty Company should stand. —Affirmed on both appeals. ALBERT, C.J., and De GRAFF, MORLING, and WAGNER, JJ., concur. Page 391	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431736/	Action at law by Gertrude Beckley, beneficiary in a policy of life insurance on the life of her husband, Ray Beckley, to recover double indemnity for his alleged accidental death. The defendant insurance company paid the face of the policy but contended it was not liable for double indemnity. The policy recites that the double indemnity benefit is payable "upon due proof that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means * * ; provided, however, that such Double Indemnity shall not be payable if the Insured's death resulted, directly or indirectly, from (a) self-destruction; whether sane or insane; * ." Defendant's answer admitted insured died while the policy was in effect and denied the other allegations of the petition. It also plead "the assured's death resulted from self-destruction, to wit: self-inflicted gun shot wounds * ." Trial to a jury Page 1009 resulted in verdict and judgment for plaintiff and defendant has appealed. Insured, Ray Beckley, was about 54 years of age and had for a number of years lived in Missouri Valley, Iowa, with his wife and children. He was manager of a grain elevator at Missouri Valley, and operated a 300-acre farm a few miles distant, belonging to his wife, her sister and mother. The year before his death he had lost some money in the wheat market, but it does not appear that he was in financial difficulties. His disposition was happy, friendly and optimistic. His family life was normal and happy. He and his wife visited friends and he was always in good spirits. He, at no time, showed indications of melancholy or despondency. On Sunday, June 26, 1938, he had breakfast with his family and left for the farm saying that he would return about 4 p.m. At 12:15 to 12:25 p.m. he was seen cutting weeds on the farm. He was next seen at 1:45 p.m. by the witness Hansen, sitting in his car in Loveland, a town on the road from the farm to Missouri Valley. He said he wanted medical help, and Hansen saw bloodstains on his clothing and took him to the office of a doctor in Missouri Valley, where he was hastily examined before being rushed to a hospital. As he lay upon the operating table in the doctor's office his wife asked him what had happened, and he answered that he went to load the gun. An examination at the hospital disclosed two bullet wounds in his abdomen, one five and one seven inches below the heart. The bullets had passed through his body and the abdominal cavity was full of blood and clots. These wounds caused peritonitis, from which he died one week later. In the opinion of the doctor, the two wounds were of equal seriousness, either wound was sufficient to cause the peritonitis, and neither wound would have been sufficient to cause death had peritonitis not set in. His general physical condition was very good and he made a normal effort to recover. The buildings on the farm were unoccupied and Beckley had been alone there. His gun was a .22 caliber forearm action repeating rifle which was kept in the tool shed on the farm, and which he had said he intended to take to his elevator to kill rats. Page 1010 This rifle was an old model of a type that occasionally discharged without the trigger being pulled. That model tended to catch dirt and cause trouble and for that reason had been discontinued. Beckley's rifle was not clean and the magazine rod was stuck and was moved with difficulty. A defect in the mechanism permitted it to continue firing automatically when the forearm was pushed back and forth and the trigger held down. It had, at one time previously, discharged while Beckley was loading it. In filling the magazine it was necessary to elevate the muzzle in order that the cartridges would drop down into the magazine. In so doing Beckley usually sat down with the rifle butt on the ground in front, and the barrel pointing at his body. Beckley received two shots in the abdomen. It is appellee's theory that when Beckley was struck in the abdomen by the first accidental shot he slumped forward or doubled up (this is supported by medical testimony) clutching the forearm of the rifle and by his convulsive movements pushing it down three inches and up again thus throwing another cartridge into the chamber which also accidentally discharged. A deputy sheriff, who was a witness for appellant and who had much experience with firearms, testified this could have happened and caused the two abdominal wounds. He also testified to experience in investigating suicides and that suicides usually shoot themselves in the head or chest. When he investigated this case he checked to see if there were any nails, projections or sticks that could have been used to pull the trigger and found none. There was blood on the floor of the shed and a trail of blood leading into and through the house to and upon a cot where Beckley had apparently lain and attempted to use a (disconnected) telephone before he drove to Loveland, where Hansen found him. Beckley's notebook was found open in the tool shed and written therein, in an almost illegible scrawl, was the following: "Was go to load and ax off 1 2 1:30 such pain have to finish it." Beckley was educated and was an active business man who could write and spell correctly. The writing, spelling and language evidence his mental and physical condition at the time. Page 1011 Appellant would read the note — I went to load the gun and it accidentally went off at 12 o'clock 1:30 such pain have to finish it. Appellant states this conclusively established that Beckley intentionally fired the second shot into his abdomen. The doctor testified it was possible that the loss of blood would have caused Beckley to become dizzy and faint, that blood clots would temporarily stop the hemorrhage and he might revive temporarily and the bleeding might start again and he might again become faint. Appellee contends Beckley was shot twice at the same time (after 12:25) and interprets the note — Was go to load and ax off one two — referring to the two shots. Her counsel say that Beckley did not shoot himself with a third shot at 1:30 as he may have intended but instead tried to get help by telephone and then drove to Loveland. The time element lends some support to this theory because Beckley was seen working at 12:15 or 12:25 and could not have been shot at 12, and also because it is questionable whether, had he fired another shot through his abdomen at 1:30, he would have revived in time to have reached Loveland by 1:45. [1] I. Appellant predicates error upon the refusal of the court to direct a verdict in its favor upon the grounds that the evidence failed to show the death was accidental and conclusively showed it was from suicide. Waddell v. Prudential Ins. Co.,227 Iowa 604, 288 N.W. 643, is cited by both parties and the briefs refer to various other authorities dealing with such questions as burden of proof, affirmative defenses and presumptions. A discussion of these propositions is unnecessary because we think the evidence of decedent's disposition, the absence of motive for suicide, the circumstances of the shooting with the defective rifle, location of wounds, effort to secure medical aid, statement that it happened as decedent went to load the gun, evidence of the firearms expert and doctor, and other circumstances heretofore detailed, furnished such substantial proof that the shooting was accidental and not suicidal that these issues were clearly questions of fact for the jury without the aid of the presumptions applicable to such cases. Appellant does not strenuously contend the first shot was intentional, Page 1012 but it argues that the record shows both shots were not fired at the same time and that the second shot was not accidental but suicidal. The evidence of the firearms expert and the doctor, together with the condition of the gun, accord with appellee's theory that the second of the two shots was fired almost immediately after the first. But appellant argues that the note left by appellee conclusively shows that the two shots were not fired at approximately the same time and that the second shot was not accidental but suicidal. We have already referred to a different construction placed upon this note by appellee as being supported by other circumstances shown in the record. [2] However, though appellant's interpretation of the note be adopted, the result argued by counsel does not necessarily follow. Appellant overlooks the evidence that when decedent was first taken to the doctor's office and placed upon an operating table he was asked what happened and he answered that he went to load the gun. We can interpret this answer in no other light than as a statement that the shooting was accidental. From appellant's standpoint we then have, at best, a declaration of intent to commit suicide and evidence of a subsequent statement that the shooting was accidental. It goes without saying that one who has expressed an intention to do an act is not ordinarily barred and estopped from proving that the act was not thereafter performed. That many persons threaten suicide is a well-known fact, which has never been considered as preventing their beneficiaries showing their deaths were due to other causes. Obviously, Beckley's efforts to secure medical aid tend to prove that if he had previously intended self-destruction, he had then changed his mind. That this change occurred before he proceeded to carry out the first intent is not unreasonable. The evidence of his statement that the shooting was accidental may not be brushed aside as without probative force. Upon the entire record it was for the jury to determine whether the shooting was accidental or suicidal. [3, 4] II. Appellant predicates error upon the refusal of the court to give certain requested instructions "telling the jury to determine whether either of the fatal shots was fired with the intention of taking life, and that if one was so fired, then under the evidence, the plaintiff could not recover." Page 1013 Appellant states: "It is the contention of the defendant that the insured was shot in the abdomen the first time either intentionally or accidentally and being alone and in great pain and being of the opinion that he was about to die anyway, that he wrote this note to explain his death and then deliberately fired a second shot." An instruction given by the court recites in part: "* * * if you find that the death of the insured resulted directly or indirectly from the firing of a gunshot by the insured, Ray Beckley, with the intention of taking his life, then your verdict will be for the defendant." We think this instruction is at least as favorable to appellant as it was entitled to receive. In Travelers Ins. Co. of Hartford v. Melick, 65 F. 178, 27 L.R.A. 629, a leading case, the 8th Circuit Court of Appeals passed upon a similar proposition in considering certain instructions. The insured in that case had received an accidental gunshot wound in the foot causing tetanus, great pain and delirium. While in that state he cut his own throat, being impelled thereto by the intense agony caused by the wound. The trial court instructed the jury that the shot wound might be considered a proximate cause of that injury, and that if his death resulted from cutting his own throat the jury might find that the shot wound was the proximate cause of death within the terms of the policy, which covered death resulting from bodily injuries through external, violent and accidental means alone, independent of all other causes and excluded intentional injuries inflicted by the insured. We quote from parts of the decision approving said instruction [65 F. 178, 184, 27 L.R.A. 629, 633]: "It must be borne in mind that the doctrine of proximate cause has a different relation to an action for negligence from that which it bears to a contract to indemnify for the result of a given cause. In the former it measures the liability, while in the latter the contract fixes the extent of the liability.* * * "In the case in hand the original cause is near in time, — only eighteen days * * . In this case the sequence of events is neither unnatural nor improbable, and the chain of causation seems to Page 1014 us unbroken.* * * We are forced to the conclusion that, if the jury found the facts as stated in this instruction, they might well find that the shot wound was the efficient cause which set in motion the train of events that in their natural sequence produced the cutting and the death, — the causa causans without which neither would have been. But it is said that this view is erroneous, because the cutting was a new and sufficient cause of the death, which intervened between the shot wound and the fatal result, and thus became itself its proximate cause. This position is untenable, because * * * the cutting was not a new cause, nor a cause independent of the original efficient cause, — the shot wound. It was only an effect of that cause, — an incidental means produced and used by the original moving cause to produce its fatal effect. In the absence of the shot wound the cutting would never have been. That was dependent entirely for its existence and for its effect upon the original accident, and was a mere link in the chain of causation between that and the death. The intervening cause that will prevent a recovery for a death which results from an accidental bodily injury indemnified against by contract must be a new and independent cause, which interrupts the natural sequence of events, turns aside their course, prevents the natural and probable result of the original accidental injury, and produces a different result, that could not reasonably be anticipated. It may not be a mere effect of that injury, produced by it, and dependent upon it for both its existence and its effect. * * * the cutting was neither a new cause nor cause independent of the shot wound, but a mere effect of it. Therefore, it could not have been the proximate or moving cause of the death." So in the case at bar the adoption of appellant's theory that the second shot, which appellant contends was one and one-half hours after the first, was intentional and was caused by assured's intense pain and suffering and his belief in his impending death from the first wound, brings this case directly within the rule of the above-cited authority. Indeed, as concerns time and immediate causation, the case at bar appears somewhat stronger on the facts than the Melick case. We conclude the requested instructions were properly refused. It may be also noted that in the case at bar the evidence showed that either of the two wounds was sufficient to cause the *Page 1015 peritonitis which resulted in the death. Nor was there any evidence that the death was hastened by the second wound, whether received immediately after the first, or one and one-half hours later. Other errors assigned to instructions if sustained are not of sufficient importance to justify a reversal. The judgment is affirmed. — Affirmed. HALE, C.J., and MITCHELL, SAGER, BLISS, GARFIELD, and WENNERSTRUM, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431758/	This action was commenced against E.A. Schade, the duly elected, qualified and acting Auditor of Mills County, by the Choate Publishing Company (a co-partnership operating under the trade name of Glenwood Opinion-Tribune); Lena Bays Gater (operating under the trade name of Silver City Times); and Allen Wortman, administrator of the estate of W.P. Wortman, deceased, (engaged in publishing and operating under the trade name of The Malvern Leader), all three of which are the official newspapers of Mills County, Iowa, praying that an order for a writ of mandamus issue, requiring the County Auditor of Mills County to perform his duties as required by sections 5411 and 5412-a1 of the Code, and furnish to the official newspapers of Mills County the record of the proceedings of the board of supervisors of Mills County, Iowa, respecting the allowance or disallowance of homestead exemptions numbered from 1 to 1462, claiming that said record forms a part of the meeting of said board and the proceedings thereof, of June 23, 1937, and that there should be published in the official newspapers the names of all applicants for homestead exemption, the legal description of the claimed homesteads, and the assessed values thereof, and whether said application was granted or denied. There was an answer filed by the County Auditor, in which he set up that he published the entire record made by the board of supervisors of Mills County, Iowa, in connection with the homestead exemptions, by publishing in the official papers the following: "Homestead exemptions 1 to 1462 were approved by the Board." The lower court refused the writ, and plaintiffs have appealed. In the case at bar the homestead exemption act created by chapter 195 of the Acts of the Forty-seventh General Assembly is new. The chapter itself covers approximately seven pages of Page 326 the legislative acts. The portion, however, that applies to the homestead exemptions is very largely covered by sections 3, 4 and 11 of that act. Section 4, amending section 6943-f64, Code of 1935, is repealed and the following enacted in lieu thereof: "1. The homestead credit fund shall be apportioned each year as hereinafter provided so as to give a credit against the tax on each eligible homestead in the state, as defined herein; the amount of such credit to be in the same proportion that the assessed valuation of each eligible homestead in the state in an amount not to exceed $2,500.00 bears to the total assessed valuation of all eligible homesteads in the state in an amount not to exceed $2,500.00 for each homestead. "2. The revenue distributable from the homestead credit fund, as provided for in paragraph four of section 6943-f63 as provided herein, shall be allocated every six months to the several counties of the state in the same proportion that the assessed valuation of all eligible homesteads in each county in an amount not to exceed $2,500.00 for each homestead, bears to the total assessed valuation of all eligible homesteads in the state in an amount not to exceed $2,500.00 for each homestead. On March 25, 1938, and every six months thereafter the board shall certify and remit to the county treasurer of each county in the state the total amount of money which has been apportioned or is then apportionable to that county. "3. On October 1, 1937, and annually thereafter, the board shall estimate the millage credit not to exceed twenty-five mills to be given to each dollar of eligible homestead valuation based upon the estimated revenue that may be distributable from the homestead credit fund for the ensuing year, and shall certify to the county auditor of each county such millage credit and the amount in dollars thereof. Each county auditor shall then enter such credit against the tax levied on each eligible homestead in each county and payable during the ensuing year, * * Each county treasurer shall show on each tax receipt the amount of credit received from the homestead credit fund. * * " Section 11 is as follows: "Any person who is the owner of a homestead, as defined in this act, and who desires to avail himself of the benefits provided Page 327 hereunder for the 1936 taxes payable in 1937 and for the 1937 taxes payable in 1938 may do so by filing a verified statement with the county auditor of the county in which the claimed homestead is located on or before June 1, 1937, and the claim of the owner must be supported by the affidavits of at least two disinterested free holders of the taxing district in which the claimed homestead is located. * * " In this case the claims and applications for homestead exemptions were on file by June 1, 1937. The record shows that the board of supervisors of Mills County passed upon each individual application, numbered 1 to 1462, both inclusive, and allowed and approved them on the 23d day of June, 1937. Following that the county auditor published in the official papers the record the board of supervisors made, to wit: "Homestead applications, numbers 1 to 1462, were approved by the board." Nowhere in the statute is it made mandatory on the county Auditor to publish the applications, numbers, names, descriptions of property and valuation placed thereon. The only provision found for the publishing of any of the facts of the proceedings of the board of supervisors is contained in section 5411 of the Code, which is as follows: "5411. What published. There shall be published in each of said official newspapers at the expense of the county during the ensuing year: "1. The proceedings of the board of supervisors, excluding from the publication of said proceedings, its canvass of the various elections, as provided by law; witness fees of witnesses before the grand jury and in the district court in criminal cases; the transcripts of justices of the peace, including their proceedings and cost; the county superintendent's report. "2. The schedule of bills allowed by said board. "3. The reports of the county treasurer, including a schedule of the receipts and expenditures of the county. "4. A synopsis of the expenditures of township trustees for road purposes as provided by law." In the homestead exemption act itself, section 11, which is set out in this opinion, the legislature specified the only notice Page 328 necessary when it provided that the notice in case of disapproval should be given in writing to the claimant, by mailing same to his last known post office address. That was in the event of the disallowance or disapproval of the application. There is no provision for notice generally to the public of any specific act with reference to any of the applications, so that when the Auditor (appellee herein) published the fact that these applications from 1 to 1462 had been allowed there was a compliance with the statute on the question of publication of the proceedings of the board of supervisors. We are not here confronted with a case in which no notice was published and we do not therefore pass upon the question of whether it is necessary to publish anything in regard to the proceedings of the board of supervisors, concerning the homestead exemption act. The record shows that the proceedings of the board and the minutes made in the board's record were as follows: "Homestead exemptions 1 to 1462 were approved by the Board." The statute says that: "the proceedings of the board of supervisors * * * shall be published." Therefore, when the county auditor published the statement he did publish, there was a substantial compliance with the provisions of the statute. If the board of supervisors of Mills County and of the other ninety-eight counties of Iowa were compelled to publish what the appellants now argue they be required to publish, the expense would run into the hundreds of thousands of dollars. It is inconceivable that the legislature could have had any such thought in mind. The homestead exemption act was passed for the benefit of those owning homesteads thruout the state. If several hundreds of thousands of dollars were required to publish these notices, that amount would have to come out of the pockets of the owners of these homesteads thruout Iowa. No possible advantage could come to the people of this state by the requirement of this large expenditure of money. And, before this court would place upon the statute the interpretation sought by appellants there will have to be written into the act the specific requirement to set out details in the publication, as sought in this case. We have too much respect for the wise and sound judgment of the legislature to believe that it would ever *Page 329 require such an extravagant expenditure of public money and such a useless and foolish thing. It necessarily follows that the judgment and decree of the lower court must be, and it is hereby, affirmed. — Affirmed. The CHIEF JUSTICE, and ANDERSON, KINTZINGER, DONEGAN, HAMILTON, RICHARDS, and SAGER, JJ., concur. MILLER, J., takes no part.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431759/	Sophia Jensen died, owning 16 1/2 acres of land, a cemetery lot worth $10, household goods worth about $100, cash on deposit in a bank amounting to $632.11, and holding a policy of insurance on her life for the sum of $500. She left a will, which was duly admitted to probate, which, in addition to directing that her funeral expenses, debts, and costs of administration be paid, provides as follows: "Second: — I give and bequeath to my Foster son Lawrence Engman all of the revenue from the rest and residue of my estate so long as he may live; and should he have issue, then and in that event, his heir or heirs shall inherit whatever of my estate shall remain, share and share alike. And should he die without issue, then Page 16 the remainder of my estate both real and personal shall be given without reserve to my dear friend Mrs. Edelbert Orme living on my place, Neola, Iowa. "Third: — I appoint my friend Hugo Heiber, Executor of this, my last will and testament, hereby revoking all former wills by me made. I hereby delegate to him full power and authority, or to his successor, should he die before my estate is closed to administer my estate in the best manner that his judgment, shall dictate in the interest and welfare of my beneficiary — Lawrence Engman." Appellant, Hugo Hieber, was commissioned executor of the will. He leased the land to the appellants Elbert R. Orme and Hilda E. Orme. A question arose as to whether the lease was valid; it being contended by Lawrence Engman, beneficiary named in the will, that he had the right to occupy the premises and that the executor had no right to lease it. This action was brought to obtain a construction of the will. The trial court construed the will so that it gave to Engman a life estate, and conferred on the executor only usual powers. The court approved the lease, on the theory that equity required such approval, and the parties agree in this court that such approval shall stand. It is unnecessary to cite authority for the proposition that the will is to be construed so as to give effect to the testatrix's intentions as revealed by the will, giving to all its terms some meaning, yet to none too much. The will gives to Engman the "revenue" from the residue of the estate of the testatrix. It delegates to the executor, or his successor, full power and authority to administer the estate in the best manner in the interest of Engman. If the will be construed to give to Engman a life estate in the residue of the estate with the right to the possession and control of it, no effect can be given to the provisions of the will giving to the executor "full power and authority to administer the estate in the best manner that his judgment shall dictate in the interest and welfare of my beneficiary — Lawrence Engman." It is beside the point to say that the testatrix intended that the executor should be frugal in the administration of the estate. His duties in that respect are fixed by law. His powers, under the law, were to take possession of the personal property of the estate and to pay its debts and charges. In this he could exercise no discretion. It is only as he may have been given power over and beyond the Page 17 usual powers of an executor that he could administer the property in the interests of Engman. We reach the conclusion that the will gave to Engman the revenue only of the residue of the estate, and that it gave to the executor and his successor the possession and right to manage the property constituting such residue, in the best interest of Engman. In reaching this conclusion we are not unmindful of cases in which it has been held that a bequest of the "income" of an estate gives to the named beneficiary a life estate and the right to possession of the property. Wills, couched in ordinary language, used in its usual sense, seldom if ever come before the courts for construction. It would be folly to suggest that the intention of a testator may be ascertained by arbitrarily imposing on a word used by him a meaning given to it as used by some other testator in an unusual way. The order and judgment appealed from is reversed, and the cause is remanded to the trial court for order and judgment in conformity herewith. — Reversed and remanded. KINDIG, C.J., and EVANS, ALBERT, STEVENS, and DONEGAN, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431760/	I. The appellant insists that the evidence is insufficient to sustain the verdict, and that his motions, made at the close of the State's evidence and at the close of all the evidence, for a directed verdict of not guilty, should have been 1. INTOXICATING sustained. The evidence is uncontradicted that LIQUORS: sales of intoxicating liquor were made in a nuisance: place of business, a combined pool hall, barber evidence: shop, and drinking place, on October 23, 1924. sufficiency. The appellant testified that he had been the proprietor of the business conducted at the place prior to September 18, 1924, and that on that day he had sold the business to one Guthrie for $2,500. He introduced in evidence a bill of sale from himself to Guthrie, covering the fixtures, furniture, and stock, purporting to have Page 663 been executed on that date, which recited a consideration of $2,500 and a mortgage of $1,100, which the purchaser assumed and agreed to pay. He also introduced the note of Guthrie to himself for $1,200, and a chattel mortgage upon the property covered by the bill of sale, securing the same, purporting to have been executed on September 18, 1924. The bill of sale and chattel mortgage were filed in the recorder's office on October 25, 1924. On October 26, 1924, a search of the place was made, and Guthrie, who was in charge of it at the time, was arrested. Appellant admitted that at that time he had the key to the building, and that Guthrie sent for him to procure the key to lock up the place. There was evidence from which the jury might have found that appellant attempted to pass the key to Guthrie secretly, and that it was only when this attempt was foiled by the officers that he delivered the key openly. Guthrie testified that after his arrest he "called the deal off," and that he did not then owe appellant anything, and that appellant had the papers, so far as he knew. Nothing was ever paid by Guthrie on the purchase. Appellant sought to explain his possession of the key to the building by the testimony of himself and Guthrie to the effect that, when he sold to Guthrie, he turned over a bunch of keys, including a key to his trunk, and that, on the day of the search, he had asked Guthrie for the trunk key, and the whole bunch was given him, and he had not yet returned it. There was testimony that Guthrie said, at the time of the search, that he was working for appellant, and that he would have to call him before he could lock up. This testimony, while not binding on appellant, was directly contradictory of Guthrie's testimony on the trial, that he was then the owner of the business. There was also testimony that, after September 18, 1924, appellant was seen in the place, working behind the bar. At the time of the alleged sale of the business to Guthrie, there were two indictments against appellant, charging him with the maintenance of a liquor nuisance; and on September 22d, he pleaded guilty to both of them. Whether appellant was the proprietor of the business, and had a guilty connection with the sales of intoxicating liquor in the building during the time covered by the present indictment, was a question of fact for the jury. Under all the circumstances shown in evidence, we Page 664 are of the opinion that the jury was warranted in finding that the alleged sale to Guthrie was a mere subterfuge, and that the verdict finds sufficient support in the evidence. II. Complaint is made that the court permitted witnesses to testify to the purchase of intoxicating liquor by the drink and by the bottle in the place, when appellant was 2. INTOXICATING not present. There was no error here. The State LIQUORS: was required to establish the existence of the nuisance: nuisance and appellant's guilty connection with evidence: it, but obviously was not required to show both purchase of things at the same time, or by the same liquor in witnesses. The order of the introduction of the absence of testimony was within the discretion of the trial accused. court, and no abuse of discretion is shown. III. Error is assigned on the admission of Guthrie's statement made at the time of the search, that he was working for appellant. The testimony was clearly admissible in impeachment of Guthrie, and sufficient foundation was laid in 3. WITNESSES: his cross-examination for its admission. It is impeachment: true, Guthrie was asked if he did not make the contra- statement at that time to the officers in the dictory presence of appellant, and the testimony on statements. behalf of the State showed that the appellant was not present at the time. But the State was not required to show that all the persons stated to be present in laying the foundation were there. The attention of the witness was called to the time and place and the persons to whom the statement was claimed to have been made. This was sufficient. St. Peter v. IowaTel. Co., 151 Iowa 294; Gibson v. Seney, 138 Iowa 383. The fact that appellant was not shown to have been present when the alleged statement was made did not affect the admissibility of the testimony, but merely its scope and effect. If he was present, the testimony would have been admissible as substantive evidence against him; if he was not present, its only effect was by way of impeachment of Guthrie. No instruction was asked by appellant in reference to the effect of the testimony, and error is not assigned on the failure of the court to instruct on the subject. IV. A witness was asked if liquor purporting to have come from the place in question was delivered to him, to be tested for Page 665 4. WITNESSES: its alcoholic content. The liquor tested by the examination: witness was sufficiently identified as that identifi- bought at the place. There was no prejudicial cation of error in the question. subject- matter. V. The testimony of a witness offered by the State in rebuttal 5. CRIMINAL was objected to for the reason that he had not LAW: trial: been before the grand jury. There was no rebuttal objection that the testimony was not rebuttal. witnesses There was no error in overruling the objection. not before State v. Whitnah, 129 Iowa 211; State v. Rivers, grand jury. 68 Iowa 611; State v. Munchrath, 78 Iowa 268. VI. A witness for the State, a peace officer, who testified to purchasing liquor in the place in question, was asked on cross-examination about the number of places he visited that day and the amount of liquor he drank. On redirect 6. WITNESSES: examination, he was asked to explain why it was credibility: necessary for him to drink in the places he allowing visited. Over a general objection that the witness to question was incompetent, irrelevant, and explain immaterial, he answered. We think that, in view conduct. of the fact that it appeared that the witness was employed by the State to secure evidence of the sale of intoxicating liquors, and the character of the cross-examination, the question was not objectionable. The answer was at some length, and portions of it might have been vulnerable to a motion to strike; but none was made. No prejudicial error appears here. VII. A motion was made to strike the answer of a witness that appellant "endeavored to slip" Guthrie the keys at the time of the search, on the ground that it was the conclusion of the witness. Another answer by the same witness in substantially the same words remained in the record unassailed. There was no prejudicial error here. VIII. The indictment charged specifically that the appellant had previously entered pleas of guilty and been 7. INTOXICATING convicted on two separate indictments charging LIQUORS: him with the maintenance of liquor nuisances. nuisance: The judgments in the prior suits were admitted habitual over objection, and this is assigned as error. violator: Error is also assigned on the instructions to evidence. the jury and certain interrogatories, submitted by the court to the jury, requiring a finding, Page 666 as to each of such cases, whether appellant entered a plea of guilty and was duly convicted. The interrogatories were answered in the affirmative. The records so introduced showed that in each of the prior cases appellant entered a plea of guilty; that judgment imposing a fine of $300 and costs was entered; and that, in default of payment, the appellant was committed to jail for a period of 90 days. The objection goes to the proposition that in neither judgment was the amount of the appeal bond fixed by the court, and in one case execution of the judgment was suspended during good behavior of the defendant, and until further ordered by the court. Section 1, of Chapter 21, Acts of the Fortieth General Assembly, is as follows: "Any person who, having once been duly convicted or having entered a plea of guilty in a criminal action in any district court of this state for violation of any of the provisions of Chapter 6, Title XII of the Code and the laws amendatory thereof, and who shall hereafter be convicted or enter a plea of guilty for a subsequent offense against any of the provisions of said Chapter 6, Title XII of the Code and the laws amendatory thereof, shall be considered a persistent violator of such laws, and for the second violation of said laws shall be fined not less than $500 nor more than $1,000, or imprisoned in the county jail for not less than six months nor more than one year, or by both such fine and imprisonment; and for the third and each subsequent violation of said laws shall be imprisoned in the state penitentiary or state reformatory for not more than three years." It is, of course, to be conceded that a statute imposing a more severe penalty for a second or subsequent conviction is, like other criminal statutes, to be strictly construed. Rohlf v.Kasemeier, 140 Iowa 182. Our statute differs from any others to which our attention has been called, however, in that it provides that any person who has once been duly convicted or has entered a plea of guilty for a violation of the chapter of the Code prohibiting traffic in intoxicating liquors, and who shall thereafter be convicted for a subsequent violation of the chapter, shall receive the severer penalty provided for. Whether this would authorize the infliction of the increased penalty Page 667 where the defendant had entered a plea of guilty to the prior charge, but no judgment had been pronounced at all, we are not required to determine; for we are of the opinion that there was, as shown by the records introduced, not only a plea of guilty to the prior indictments, but a final judgment in each of the cases. The failure of the court to fix the amount of the bond upon appeal affected neither the validity nor the finality of the judgment entered. The defendant was not thereby deprived of the right of appeal; and upon an attempt to enforce 8. CRIMINAL the judgment by his imprisonment, he would not LAW: have been entitled to a discharge on habeas judgment: corpus, but his only remedy would have been an failure to application, by habeas corpus or otherwise, to fix appeal have the amount of the bond fixed. Murphy v. bond: McMillan, 59 Iowa 515; Jacoby v. Waddell, 61 effect. Iowa 247. Authorities are cited to the effect that a verdict of guilty upon which no judgment has been pronounced, or where sentence or judgment has been suspended, does not meet the requirement of a statute providing for a more severe punishment 9. CRIMINAL where the defendant has previously been LAW: convicted. People v. Fabian, 192 N.Y. 443 (85 judgment: N.E. 672, 18 L.R.A. [N.S.] 684); 16 Corpus Juris suspension 1341. Cases so holding are not in point. Aside during good from the wording of our statute, making one who behavior: has previously entered a plea of guilty and is effect. thereafter convicted for a subsequent offense amenable to the increased penalty, there was a final judgment in the case where the execution of the judgment was suspended during good behavior. Sentence or judgment was not suspended in the sense that it was not imposed or pronounced, but the order purported to do no more than suspend the execution of the judgment during good behavior of the defendant. Without expressing any opinion as to the power or authority of the court to make such an order without complying with Sections 3800 and 3801, Code of 1924, we think that the order did not operate to prevent the judgment on which execution was so ordered suspended, from being final. It appears that, after the conviction in the present case, the order was revoked by the lower court, and the former judgment ordered enforced. Page 668 Thereupon, the defendant attempted to prosecute an appeal from the former judgment. The appeal was dismissed in this court because not taken within such time after the entry of the judgment as required by statute. Section 1 of Chapter 222, Acts of the Fortieth General Assembly (Section 13995, Code of 1924). The judgments relied upon as prior convictions were not pending on appeal at the time the acts here relied upon for a conviction were committed, or at any subsequent stage of the proceedings. Cases where a motion for a new trial or an appeal is pending in the former action do not present the same question. In Brittian v. State, 85 Tex. Cr. 491 (214 S.W. 351), cited by appellant, the statute provided for a suspension of sentence by the jury, and that in such case neither the verdict nor the judgment should be final, except upon certain specified conditions. Ex parte Coots, 85 Tex. Cr. 334 (212 S.W. 173). InUnited States v. Lindquist, 285 Fed. 447, it was held merely that the second offense must be committed after conviction for the first. At the time of the commission of the acts constituting the crime charged, the above quoted section of the Acts of the Fortieth General Assembly was in force; but, at the time the indictment was returned, on November 14, 1924, 10. STATUTES: the Code of 1924 was in force. Section 1964 of codification the Code of 1924, aside from some slight changes of statute: in phraseology, is the same as the prior effect. statute. There is no change in meaning and no change in the definition of the essential elements of a second or third violation, after previous conviction or convictions, of the statutes relating to the traffic in intoxicating liquors. No new offense was created, and no change was made in the punishment or in the circumstances which would authorize or require the infliction of the increased punishment for a second or subsequent conviction, and it is clearly not necessary to give effect expost facto to the Code of 1924, to sustain the conviction of appellant for an act that was a crime under both statutes, and his subjection to the increased punishment provided for by both statutes under the same circumstances. State v. Reyelts, 74 Iowa 499. A mere change in phraseology in the revision of a statute will not work a change in the law, unless it appears that such was the legislative intent. *Page 669 Minneapolis St. L.R. Co. v. Cedar Rapids, G. N.W. Co.,114 Iowa 502; Eastwood v. Crane, 125 Iowa 707. There was no error in admitting in evidence the record of the prior convictions, or in the instructions on the subject, or in requiring of the jury the special findings. Other errors assigned, where not disposed of by what has been said, are so clearly without merit as to require no discussion. The record has been carefully examined, and no prejudicial error found. The judgment is — Affirmed. FAVILLE, C.J., and STEVENS and De GRAFF, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431762/	The action is against the defendant city to recover for personal injuries alleged to have been received by plaintiff by falling upon a sidewalk negligently permitted to be in a defective and dangerous condition. The petition was filed December 28, 1923, and the injury was alleged to have occurred on March 21, 1923. No notice stating the time, place, and circumstances of the injury was served on the defendant within 60 days from the happening of the injury. In reply to an answer pleading the statute of limitations, the plaintiff alleged that, within three months following the injury, plaintiff's attorney commenced negotiations with the city solicitor and attorney for the city; that the latter said "he was very busy, and when he had a little time, he would look the matter up, and let plaintiff's attorney know what he would do;" that he "told plaintiff's attorney, in substance and in fact, that he would not take advantage of the statute of limitations if suit was not filed within the three-months period." It was further alleged that plaintiff relied on such representation, and failed to bring his action within three months, as he would have done, had he not so relied thereon, and that, by reason thereof, the city was estopped to plead the statute of limitations. Page 203 Section 3447, Code Supplement of 1913 (Section 11007, Code of 1924), provides: "Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared: 1. Those founded on injury to the person on account of defective roads, bridges, streets, or sidewalks, within three months, unless written notice specifying the time, place, and circumstances of the injury shall have been served upon the county or municipal corporation to be charged within sixty days from the happening of the injury." We said, in Howe v. Sioux County, 180 Iowa 580, that we were committed to the doctrine that a litigant may estop himself from the right to plead the statute of limitations, citing Holman v.Omaha C.B.R. B. Co., 117 Iowa 268; McKay v. McCarthy,146 Iowa 546; and Gamet v. Haas, 165 Iowa 565. We held, in Starling v. Incorporated Town of Bedford, 94 Iowa 194, where the statute then in force provided that no action of the character of that here involved should be brought after six months from the time of the injury, unless a written notice specifying the time, place, and circumstances of the injury was served on the defendant within 90 days, that the city council could not waive the right to the service of the three-months written notice. In that case, the petition was filed after the expiration of 6 months. It alleged the giving of an oral notice within 3 months, and acts of the city council relied upon as a waiver of a written notice. We held that a demurrer to the petition was properly sustained; and said that the statute absolutely prohibited the bringing of the suit after 6 months unless the written notice was served within 90 days after the injury, and that, notwithstanding that the statute of limitations could be waived, no plaintiff could disregard an absolute provision of a statute without the observance of which no action could be maintained. There is no material difference between the statute there under consideration and that now in force, save in respect to the time within which the notice must be served and the action, in the absence of such notice must be commenced, and in the further fact that the present statute is incorporated in the general statute of limitations. If we consider the statute as merely a statute of limitations, there would appear to be an inconsistency between the reasoning upon which the decision in the Starling Page 204 case was based, and the general proposition that a litigant may be estopped to rely upon the statute of limitations; for the statutory prohibition upon which that decision was predicated is, at least now, merely that applicable to all actions under the general statute of limitations. In Howe v. Sioux County, supra, we held that the facts relied upon — certain acts by the board of supervisors — neither constituted a waiver of defects in the notice nor estopped the county to rely on the statute of limitations. If it should be conceded, for the purpose of the present inquiry only, that the statement alleged to have been made by the city solicitor would, if made by an individual or by the agent of a private corporation acting within his authority (Holman v.Omaha C.B.R. B. Co., supra), have been sufficient, if relied upon, to work an estoppel, and if it should be further conceded that a municipal corporation could estop itself from relying on the statute of limitations, — a question we do not determine, — still the ultimate question remains whether the city can be so estopped by the statement of the city solicitor that he would not take advantage of the statute of limitations, where the claimant relied thereon. The city solicitor has only such powers as are prescribed by law or ordinance. Section 5660, Code of 1924. We are referred to no statute or ordinance, nor are we aware of any, conferring upon the city solicitor, directly, or by any implication, authority to waive for the city the statute of limitations, or to do any act that would operate to estop the city from relying thereon. It was alleged that the city solicitor was the attorney for the city; but this action was not then pending, and there is no allegation of any authority on his part, as such officer or as the attorney for the city, to in any manner bind the city. There was no promise of payment or settlement. We conclude that the facts alleged in the reply, — that is, that the city solicitor stated that he would not take advantage of the statute of limitations, and that plaintiff relied thereon, and delayed commencing his action until he was barred, — were insufficient to estop the city from pleading the bar of the statute, and that the motion to strike was properly sustained. The judgment is — Affirmed. De GRAFF, C.J., and STEVENS and FAVILLE, JJ., concur. *Page 205	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431764/	On August 7, 1937, appellee Kent, a man forty-eight years old, was driving a truck containing a concrete "mix" on a construction job near Belle Plaine in this state. Appellant's duties are thus accurately described by appellees: "His job as his testimony shows, was that of a grade checker. That means that it was his job to see that the grade was the proper height so that the correct amount of cement could be poured between the forms which had been set. He was working between the turn-around and the mixer in the space over which the trucks loaded and drove away empty. He determined whether the grade was right or wrong by pushing into the ground in the grade a stick with a nail driven into it. The distance between the nail and the top of the stick was the depth the concrete was to be. After pushing the stick into the ground to the nail he then went outside the form and sighted across the top of the form and across the top of the grade stick to the opposite form to be sure that there was the proper level. The squatting and the sighting was all done outside the form. The only time he needed to be on the grade between the forms was when he went out to set his grade stick and when he went out to retrieve it. In this case he had set his grade stick. He had gone outside the form on the south side and squatted and made his sight and was then returning to the grade to pick up his grade stick." At this moment appellant was struck by the truck driven by appellee Kent. The record discloses that there were in the neighborhood of thirty-five trucks delivering concrete mix to the mixer. They came from the west to what was termed a "turn-around" Page 794 located approximately 300 feet west of the cement mixer. When the trucks came to this turn-around which was in the nature of a Y, they turned to the north, backed out and backed eastward to the mixer where they deposited their load. To the west of the mixer and at and about the place where appellant was hurt, there were ten or a dozen men engaged in the various activities incident to laying the pavement. The mixer could mix a batch every seventy-two seconds and drop the load in seventy-two more. Each of the trucks was making about two trips an hour. Appellant testified that for some cause, possibly trouble at the mixer, operations had ceased temporarily while trucks gathered to await resumption of operation. The nearest truck to him was that of Kent which, he said, was about thirty-five feet away. Kent could not see anyone immediately behind his truck although he could have seen appellant from a distance of 125 feet. Appellant's claim is that while the mixer and the trucks were at a standstill he attempted to retrieve his stick, when appellee Kent, without sign, warning or signal of his intention of doing so, suddenly backed his truck. Kent testified that he did not see appellant and was not aware of his presence until some shout or call warned him that an accident happened. It is the contention of the defense that there was no stoppage of the movement of the paving gang; and that in the continuous flow of trucks to and from the mixer, appellant was under obligation to look out for himself and keep out of the way of the trucks. The jury could find that Kent made no attempt to see where the workmen ahead of the mixer were, but concerned himself largely if not entirely with avoiding damage to or the displacement of the forms into which the concrete was to be poured. He had the door of his truck open, holding it with his left hand while guiding the backward movement of the truck to the mixer. He wouldn't say that he had sounded the horn and appellant says no signal was given. [1] It will thus be seen that the trial court was confronted with the question of determining whether as a matter of law the plaintiff was guilty of contributory negligence, or appellees free from negligence. The court took the view that it was a law question in that under the record reasonable minds could not differ. Page 795 A verdict was accordingly directed as already stated. Herein we think the court erred. Both parties cite Rebmann v. Heesch, 227 Iowa 566,288 N.W. 695, reading it to different conclusions. The case is so nearly parallel in its facts with those at bar that the opinion there might well have been written in this. There is this difference to be noted. In the Rebmann case the truck driver struck the plaintiff on the side of the road upon which the trucks on that job were not accustomed to be. The driver sought to justify his position by various obstacles in his way as he moved to the mixer. The opinion supports the contention of appellant here and seems to us controlling. Appellees also cite these cases which are distinguishable: Hedberg v. Lester, 222 Iowa 1025, 270 N.W. 447; Denny v. Augustine, 223 Iowa 1202, 275 N.W. 117; O'Meara v. Green Const. Co., 225 Iowa 1365, 282 N.W. 735; Cumming v. Dosland, 227 Iowa 470,288 N.W. 647; Spooner v. Wisecup, 227 Iowa 768,288 N.W. 894; Ward v Zerzanek, 227 Iowa 918, 289 N.W. 443. [2] One of the grounds for motion to direct was that the evidence failed to show that Kent was an employee of Bostian operating the truck in the scope of his employment, and failed to show that Bostian was liable for the negligence of Kent. Under some state or federal regulation, or both, no man was allowed to operate a truck for more than forty hours a week but the owner of the truck was permitted to engage relief drivers, none of whom might work more than forty hours per week. The method of employment by the construction company is thus described by one of its officers: "The owner selected his own driver and that driver could drive the truck forty more hours in a week. The relief driver and the truck owner were paid as individuals by check and the truck owner was paid as the owner of the truck. So that when a relief driver was operating a truck the number of loads that the relief driver hauled would be paid by check and would be divided between the relief driver and the truck owner." Kent was operating Bostian's truck under this sort of an Page 796 arrangement. A truck driver employed on the same job at the same time testified: "The Sani [construction company's] man did not hire us. The truck owners hired I and Kent. The relief drivers are kind of engaged among themselves, working for them more than they are working for the paving company, but the Sani Construction Company paid us our checks, but these other fellows that owned the trucks were what we called the `boss' and so was Sani as far as that goes and we had to take orders from either one of them." Under such a record it would seem to be unnecessary to discuss the question whether the relationship of appellees, one to the other, was master and servant or as engaged in a common enterprise. Certainly Kent could not be regarded as an independent contractor. [3] Our attention is called to section 264, chapter 134, acts of the Forty-seventh General Assembly (Code, 1939, section 5017.06), which provides: "Road workers exempted. The provisions of this chapter shall not apply to persons, teams, motor vehicles and other equipment while actually engaged in work upon the surface of a highway but shall apply to such persons and vehicles when traveling to or from such work." As was pointed out in the Rebmann case, supra (227 Iowa 566,288 N.W. 695), this provision of the statute does not serve to excuse negligence on a job of this kind. We have frequently held that every person is bound to exercise that degree of care which a reasonably prudent person would exercise under the circumstances as they were, or as they might to such prudent person reasonably appear to be, unless statutory or other governmental regulation prescribed a different rule of conduct. On the whole record, while recognizing that we are dealing with a borderline case, it seems that a jury could just as well decide upon the fact question as can the court. We think there was error in the ruling sustaining the motion to direct. Page 797 The motion to dismiss this appeal has been considered and found wanting. It is overruled. The case is, therefore, reversed. — Reversed. CHIEF JUSTICE and all JUSTICES concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431765/	This is an appeal from an order of the district court sustaining a writ of certiorari. The plaintiff, appellee, is a legally organized independent school district, and the defendants, appellants, are the Superintendent of Public Instruction, the County Superintendent of Schools, and one M.J. Baker, who was employed under a contract by the said school district as superintendent of schools for the school year of 1934 and 1935. Page 1064 [1] The facts are not in serious dispute. Baker entered into a contract with the school district in April, 1934, as superintendent for the school district for the ensuing school year. This contract was in the ordinary form of such contracts but contained an insertion or clause providing, "This contract may be terminated at any time, by the said second party, for any reason, by giving thirty days notice, in writing, of such intention to said first party." One of the principal contentions in this controversy involves the interpretation of the quoted clause. Following the making of the contract some friction arose between the school board and Baker, and about the middle of July, 1934, at a meeting of the board at which Baker was present, he was asked to resign, and upon his refusal so to do, a motion or resolution was passed by the board canceling the contract and discharging Baker as superintendent and directing the attorneys for the board to serve notice upon the said superintendent of such action of the board. Such notice was prepared and served. The notice containing the following: "and you are further notified that said contract has in all respects been canceled by reason of the provision thereof that reads as follows: `that the contract may be terminated at any time by said second party, for any reason, by giving thirty days notice, in writing, of such intention to said first party'." Following the action of the board and the service of the notice, as here detailed, Baker attempted an appeal to the county superintendent by filing an affidavit with the county superintendent as provided in section 4298 of the Code. In such affidavit Baker recited that the board of directors of the school district had wrongfully attempted to discharge him and cancel his contract, that no charges of incompetency, inattention to duty, partiality, or any other good cause had been made against him by said board; and that no full or fair investigation had been made by the board; and that he was not permitted to make a defense to any charges before the board. Before any action was taken by the county superintendent on the alleged appeal the school district filed formal motion to dismiss in which they contended that the county superintendent had no jurisdiction to entertain or hear the appeal. It was contended by the school district that the discharge of Baker and the cancellation of his contract was not under the provisions of section 4237 of the Code. It should be noted here that section 4237 provides that Page 1065 the board may by a majority vote discharge any teacher for incompetency, inattention to duty, partiality, or any good cause after a full and fair investigation by the board at a meeting held for that purpose. The motion to dismiss the appeal was repeated several times during the pendency of the appeal before the county superintendent but was overruled by the county superintendent and a hearing proceeded on the appeal, resulting in the finding and ruling by the county superintendent that he had jurisdiction under the provisions of section 4298 of the Code, and a further finding that the board of the school district was without sufficient reason for the discharge of Baker and the cancellation of his contract. The school district then attempted an appeal to the state superintendent and there again insisted that neither the county superintendent nor the state superintendent had any jurisdiction in the premises and that the school district was strictly within its rights in terminating the contract with Baker under its express terms and conditions. This contention upon the part of the school district was not sustained by the state superintendent, and an order was entered affirming the ruling and order of the county superintendent. The school district then brought this action in the district court of Polk county, Iowa, for a writ of certiorari to review the actions, findings and orders of the county and state superintendents. The district court sustained the writ, and held that the county and state superintendents acted without their authority and jurisdiction in setting aside and annulling the action of the school board in discharging Baker and canceling his contract. From such order and judgment the superintendents and Baker have appealed to this court. It will be apparent at once that the first question to determine is whether the teacher, Baker, was discharged under the provisions of section 4237 of the Code or under the express provisions of his contract. The appellants contend that he was discharged under the provisions of section 4237 and that said section was not followed by the board of directors of the school district in that no formal charge was made against Baker for incompetency or other of the reasons contained in section 4237, and that no proper hearing was had as provided in said section. The school district contending that Baker was discharged under the express conditions of his contract and that thereunder no formal charges and no hearing under the provisions of section Page 1066 4237 were necessary. It must be held, under the record, that the provisions of section 4237 were not followed; that there were no formal charges made against Baker, and no such hearing thereon as provided by the section. Indeed, it is practically conceded by the school district that it did not proceed under the section referred to but acted wholly upon its rights under the clause in the contract permitting the termination of the contract at any time by giving thirty days notice in writing. This is further evidenced by the contents of the notice served upon Baker, which notice contained the statement that the contract was canceled and the employment terminated by reason of the particular provision referred to. We have held recently that if a teacher is discharged under the provisions of section 4237 an appeal must be taken to the county superintendent and a failure to so appeal will bar an action at law for the recovery of compensation or damages. Schrader v. School District, 221 Iowa 799, 266 N.W. 473. But we have no situation under this record similar to the facts appearing in the cited case. However, it would follow that unless the teacher was discharged under the provisions of section 4237 an appeal to the county superintendent would not be available. Section 4298 of the Code provides that any person aggrieved by any decision or order of the board of directors of any school corporation may appeal within thirty days from the rendition of such decision or order, but it must be held that the provisions of this section are not all inclusive and that it is not all actions of the school board which must be appealed to the county superintendent before action in the courts will lie. The last mentioned section provides that such an appeal may be taken on any matter involving questions of law or fact, and section 4302 provides an appeal from the decision or order of the county superintendent to the state superintendent, and the latter section provides that the decision when made by the state superintendent shall be final. These sections are only applicable however in cases or questions in which the county superintendent and the state superintendent have jurisdiction. [2] We do not think that either the county superintendent or the state superintendent had jurisdiction to entertain the appeals of the teacher, Baker, in the instant case, and it is our conclusion that the motions interposed by the school district questioning such jurisdiction and asking that the alleged appeal be Page 1067 dismissed, should have been sustained. If the school board had no jurisdiction under the provisions of the teacher's contract to cancel the same, then the teacher had his action at law for compensation or damages when his contract was illegally terminated by the board, and it was not necessary for him, indeed it was not permissible, to appeal to the county superintendent. But it is contended on the part of the appellant that the school district, by appealing to the state superintendent of public instruction from the order of the county superintendent, invoked the jurisdiction of the state superintendent, and after the adverse ruling of the state superintendent could not then claim in the present action that the state superintendent was without jurisdiction. In other words, the appellant claims that having elected to appeal from the order of the county superintendent the school district thereby consented to the jurisdiction of the state superintendent and by such consent conferred a jurisdiction which had not before existed and are now estopped from claiming that the state superintendent had no jurisdiction. In this connection it must be remembered that motions were filed with the state superintendent for reversal of the action of the county superintendent and a dismissal of the proceedings on the ground of want or failure of jurisdiction. If this was an action between individuals there might possibly be some merit in the contention that jurisdiction was vested in the state superintendent by the action of the school board in appealing from the ruling and order of the county superintendent, although we are not ready to subscribe to that ruling or conclusion. It has been repeatedly held that jurisdiction cannot be conferred by failure to object to such jurisdiction. We are of the opinion that in such a quasi judicial tribunal, as we are dealing with here, jurisdiction must be shown to exist, and that it cannot be implied from conduct or acquiescence, and if jurisdiction does not exist under the law any action of the parties would not make valid and legal that which the state superintendent had no authority to adjudicate or determine. In the instant case we have involved not individuals, but a governmental unit, the independent school district of the town of Ogden, and it seems to be well settled by our decisions that estoppel or waiver will not lie against a governmental unit because of laches or acts of its officers which were without legal authority. County v. Odden, 219 Iowa 793, 259 N.W. 774; County v. Dickey, 86 Minn. 331, 90 N.W. 775; Page 1068 Water Company v. Cedar Rapids, 117 Iowa 250, 90 N.W. 746; McGillivray v. Barton, 96 Iowa 629, 65 N.W. 974, and many other cases that might be cited. We come now to the question of the validity of the clause inserted in the contract which is heretofore quoted and under which the board acted in canceling the contract and discharging the teacher. We had a very similar proposition before us in the case of Miner v. School District, 212 Iowa 973, 234 N.W. 817, 818. The contract involved in that case contained a clause as follows: "That either party to this contract on 20 days' written notice to the other may terminate this contract." The clause involved in that case is like the clause involved in the present case with the exception of the words "for any reason", which are contained in the clause in the contract under consideration on this appeal. We cannot conclude that the inclusion of the words "for any reason" in any way changes or differentiates the clause under consideration with the one involved in the last cited case. The clause in the present contract was inserted for some reason. Were we to conclude and hold that notwithstanding the provision for termination and cancellation of the contract it must be for a "good cause" then the inclusion of the provision under consideration would add nothing to either the rights of the teacher or the school district because the provisions of section 4237 provide for cancellation of contract and discharge of teacher, among other things "for any good cause". And it seems to us fair to conclude that the purpose of the insertion of the clause for termination and cancellation was to avoid the necessity of technically following the provisions of section 4237 in the event the board determined "for any reason" sufficient in its judgment to cancel and terminate the contract. In the cited case we quoted with approval from the case of Black v. School District, 206 Iowa 1386, 222 N.W. 350, as follows: "The contract in question respected provisions contemplated by the statute. Had it stopped at this point, the contention of appellant would merit consideration. That is to say, he might predicate his proposition on the fact that the defendant would be compelled to show cause for the discharge of plaintiff. This matter was voluntarily waived by the plaintiff when he signed the contract in question. * * It may be conceded that the statute that authorized the creation of the contract in suit may be *Page 1069 construed as a part of the contract, but it is also a well recognized rule that a statutory provision made for the benefit of a party to a contract may be waived. It is clear that the instant plaintiff could and did waive any right to be confronted with a formal charge as ground for a dismissal, and his right to have a hearing on said charge or accusation. The board of directors exercised its right to terminate the contract, and, so far as the record discloses, sine causa. This right was embodied in the contract itself. We view the stipulated reserved right as a valid and effective part of the contract, and in the exercise of the reserved right by the board, no liability was incurred on its part." Thus the question involved in this appeal is not one of first impression, having been determined both in the Black case and in the Miner case above referred to. We see no reason for a retreat from the rule announced in those two cases and following such rule we are constrained to hold that an appeal would not lie to the county and state superintendents from the action of the board of the school township in cancelling Baker's contract and discharging him, and that neither of the superintendents had jurisdiction or authority to entertain the appeal and determine the questions involved. It follows that the finding and judgment of the trial court in sustaining the writ of certiorari and annulling the findings and orders of the county superintendent and state superintendent must be sustained. — Affirmed. PARSONS, C.J., and MITCHELL, STIGER, DONEGAN, ALBERT, and RICHARDS, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431822/	This appeal has developed by reason of an action brought in the guardianship proceedings of Dan Lyons wherein he sought to set aside and vacate an order of the district court of Chickasaw county appointing a guardian for Page 970 his property. Thereafter the issues raised by the pleadings filed in this action were brought to trial. The court heard the evidence presented and later filed findings of fact, conclusions of law and a judgment and decree wherein it held that the petition to vacate the order of appointment of a guardian should be denied. Dan Lyons has appealed from this decision. The ward, Dan Lyons, is eighty years of age. He is a resident of Chickasaw county and lives on a two-hundred-acre farm with his sister, Katie Lyons, who is seventy-five years of age. She has never married and the record does not show that Dan Lyons was ever married. Dan Sheridan, who was appointed guardian of Dan Lyons and Katie Lyons on April 9, 1947, resides approximately one mile from the Lyons farm. He, Joe Sheridan and John Sheridan are nephews of the ward. They and Andrew Lensing, a brother-in-law of the Sheridans, all reside in the same neighborhood. The record discloses that on January 27, 1947 Dan Sheridan, John Sheridan and Andrew Lensing went to the office of E.P. Shea, an attorney of Decorah, and there discussed with him the matter of the apparent necessity for the appointment of a guardian for Dan Lyons. It is shown that at that time E.P. Shea discussed the matter of the appointment of a guardian for Lyons by virtue of a voluntary proceeding and told the parties who were consulting with him that he would call upon Dan Lyons within a few days and thereafter report to them. Mr. Shea is one of the attorneys representing the appellant in this present action now before us on appeal. These parties who had conferred with Mr. Shea did not hear anything from him and on or about April 1, 1947 Dan Sheridan and Andrew Lensing went to the office of E.P. Donohue, an attorney at New Hampton and consulted with him in regard to the appointment of a guardian for the property of Dan Lyons. The evidence shows that Mr. Donohue advised them that they could bring an involuntary action for the appointment of a guardian and thereafter have a hearing in court or that Dan Lyons could make a voluntary petition for the appointment of a guardian. On April 4, 1947, Mr. Donohue prepared a petition wherein Dan Sheridan and Andrew Lensing were named as plaintiffs and Dan Lyons was Page 971 named as defendant and wherein the plaintiffs petitioned for the appointment of a guardian. An original notice was also prepared to be served upon Dan Lyons relative to this proposed action. The petition was signed by Dan Sheridan and Andrew Lensing. After these papers had been prepared, George Murray, sheriff of Chickasaw county, was called to the office of Attorney Donohue. At that time there was a discussion as to the possibility that Dan Lyons and his sister might petition for the appointment of a guardian in a voluntary proceeding. Following this conference it was decided that a petition for the voluntary appointment of a guardian for Dan Lyons and Katie Lyons should be prepared and submitted to them for their signature by Murray, the sheriff. He had known them for approximately seventeen years. On this date, April 4, 1947, Murray started for the home of Dan and Katie Lyons. En route to the farm he saw Dan Lyons who somehow had driven his car off the road into a ditch. The car, with the aid of a tractor, was placed back on the road and Lyons proceeded to his farm. Sheriff Murray arrived at the farm shortly thereafter and visited with Dan and Katie Lyons. It is shown by the record that he discussed with them the matter of the service of the notice relative to the involuntary petition for the appointment of a guardian and also discussed with them the appointment of a guardian under a voluntary proceeding. It is the claim of the petitioner, Dan Lyons, that by reason of his disturbed state of mind on account of having driven his car off the road and the attitude and actions of the sheriff at his home he signed the voluntary petition for the appointment of a guardian. This petition which was signed at that time by both Dan Lyons and Katie Lyons was not verified and the sheriff informed them that they should come to New Hampton where this part of the petition could be completed. There was some comment as to their inability to climb the stairs to the secondfloor of Mr. Donohue and the sheriff suggested that they come to his office. On the following Monday, April 7, 1947, Dan Lyons and Katie Lyons accompanied Dan Sheridan and Mrs. Dan Sheridan to New Hampton and went to the sheriff's office. Mr. Donohue was called and he spent approximately an Page 972 hour and a half there visiting and discussing with Katie and Dan Lyons the question of their wishes regarding the appointment of a guardian. The evidence discloses that in that conversation inquiry was made whether or not there was any objection to Dan Sheridan acting as their guardian. It is shown that these parties told Mr. Donohue that they were willing to sign the voluntary petition, which they did at that time. Exhibit 1 is a joint petition of Dan Lyons and Katie Lyons for the appointment of a voluntary guardian. It had been signed by both of them on the previous Friday at the farm but it had not been verified. Exhibit 2 which is a petition of a similar nature was signed in the sheriff's office in New Hampton on Monday, April 7, 1947, by both Dan Lyons and Katie Lyons at the place on the petition for the signature of the petitioners and also following the verification statement. The verification was subscribed and sworn to before E.P. Donohue, notary public. The petition, Exhibit 2, was filed with the clerk of the district court as a joint action, but separate accounting proceedings were set up. The clerk, on the instructions of Mr. Donohue, the attorney, filed the petition, Exhibit 2, in the Katie Lyons guardianship. Exhibit 1 was not signed at the place noted for the verification but this was filled in by someone in the office of Mr. Donohue and was filed in the Dan Lyons guardianship proceeding. Some question has been raised as to the failure to have Exhibit 1 properly verified but there is no question as to the proper verification of Exhibit 2. It is perhaps advisable to state that the petition for the appointment of a guardian in the involuntary proceeding was not filed in the clerk's office. In the hearing before the trial court Dan Lyons was asked whether or not Sheriff Murray had misrepresented anything to him when he signed the petition for a voluntary guardian at the farm and he answered in the negative. He was also asked whether or not he could tell of any statements that were made in the sheriff's office to him by Mr. Donohue, Dan Sheridan or Mrs. Dan Sheridan when he signed Exhibit 2 and his reply was in the negative. It is also shown by the evidence that there was some discussion relative to the use of the automobile by Dan Lyons Page 973 prior to the time that he signed the application for a voluntary guardianship in the sheriff's office. Mr. Donohue testified that Mr. Murray, the sheriff, had told him of the automobile incident and that he instructed the sheriff to get the keys and to inform the state. He also testified that he stated if Dan Lyons passed a driver's test everything would be all right but if he did not pass it that would be decisive of the situation as to the use of the car. It is also disclosed by Mr. Donohue's testimony that he overheard George Murray, the sheriff, tell Dan Lyons to leave the car alone and not to drive it. The petition for setting aside the order appointing a guardian for Dan Lyons was filed on April 30, 1947. There was no application to set aside the appointment of a guardian for Katie Lyons. There was other evidence presented to the effect that Dan Lyons had never conferred with Mr. Donohue concerning the appointment of a guardian; that the parties who did consult with Mr. Shea and Mr. Donohue had never discussed the matter of the appointment of a guardian with Dan Lyons and that he did not know one had been appointed until he was unable to transact business as he had previously done. [1] I. The appellant claims as an initial error on the part of the trial court its ruling in striking from the ward's petition to vacate the order for the appointment of a guardian, paragraphs 6, 7 and 8 thereof. Paragraph 6 states that the petitioner is a retired farmer and that he had leased the work land on his farm for the year 1947. Paragraph 7 alleges that the petitioner is well able and capable of taking care of his own property and that he does not care to have a guardian for his person or property and that no reason exists for one. Paragraph 8 states that the petitioner has conserved and protected his property for a long period of time, that his business affairs are in good shape, that he has not dissipated or squandered his holdings, that he is a sober, reliable and prudent man and well able to handle his own affairs. The trial court sustained this motion and held in its ruling that the proceedings as then before the court were not for the termination of the guardianship under the provisions of sections 670.11, 670.12, 670.13, Page 974 1946 Code of Iowa. It held that the question presented by the petition was whether the claimed voluntary application had been obtained by duress, deceit, undue influence or false and fraudulent misrepresentations. We hold that the ruling made by the trial court was correct and that there was no error in striking the portions of the petition to which reference has been made. It is our conclusion that the only question presented for consideration was, as stated by the trial court, whether there had been duress and fraudulent misrepresentations made to Dan Lyons in obtaining his signature to the petition for a voluntary guardianship. [2] II. It was stipulated by the parties, prior to the introduction of the evidence, that the hearing and proceeding then to be had before the trial court should be governed and carried on under the provisions of Rule 252, Rules of Civil Procedure, which pertains to the manner in which judgments may be vacated or modified. It was also stipulated that these proceedings should also be subject to the provisions of Rule 253, Rules of Civil Procedure. Paragraph (c) (Trial) of this last-referred-to Rule provides in part that the " * * form and manner of the trial shall be the same, as nearly as may be, as in the trial of an ordinary action to the court, and with the same right of appeal." The proceedings had before the trial court were in probate and triable as a law action. In re Estate of Jenkins,201 Iowa 423, 426, 205 N.W. 772. Inasmuch as this matter was triable as a law action to the court its finding on the issues presented is conclusive and binding on us the same as would be a verdict of a jury if supported by substantial evidence. See Arent v. Arent, 239 Iowa 737, 740, 32 N.W.2d 660, 661, and cases cited. [3] III. It is one of the claims of the appellant that the petition for the appointment of a guardian filed in the Dan Lyons proceeding had not been verified. This refers to Exhibit 1, to which reference has previously been made. There is no contention that Exhibit 1 had been verified. It was filed as a copy. Exhibit 2 was verified. The trial court held that Exhibit 2 had been properly verified and that the docketing of the guardianships separately did not affect the validity of the order appointing a guardian based on the joint request for Page 975 appointment, as shown by Exhibit 2. The proposition raised by the appellant in this division of his brief involves the question whether the obtaining of Dan Lyons' signature to the petition and verification, as shown by Exhibit 2, was the result of duress, fraud and misrepresentation. To establish fraud through misrepresentation, there must be proof, in addition to the false statements that the person, who is claimed to have been deceived or defrauded, acted in reliance upon the statements made. 23 Am. Jur., Fraud and Deceit, section 141. In order for appellant to have acted under duress he must have been under such fear as to "deprive him of the free exercise of his will." Guttenfelder v. Iebsen, 222 Iowa 1116, 1121, 270 N.W. 900, 903. [4] It is unnecessary to decide whether there is any evidence of fraud or duress. The trial court found they were not proven. There is evidence to support such finding. Certainly we cannot hold fraud or duress were conclusively established. This contention presents no ground for reversal. [5] IV. In the course of the examination of Dan Lyons he was asked the question: "Did you ever authorize Mr. Donohue to present a petition to the court to have a guardian appointed for you?" The witness, upon objections made by counsel for appellee, was not permitted to answer. Dan Lyons was further asked as a witness: "Did you ever want to have a guardian over your property?" An objection to this question was sustained by the trial court. Katie Lyons, as a witness for Dan Lyons, was asked the following question: "The question is this: Before Dan signed in the sheriff's office did he say anything at that time about wanting to go to Decorah?" We are of the opinion that the trial court could have properly overruled these objections and permitted the witnesses to answer but it is our conclusion that the error, if any, is without prejudice to the appellant. Our examination of the entire record shows that these witnesses were interrogated quite thoroughly concerning the entire situation. The court had these witnesses before it and under all the circumstances and the record as made we do not feel that we would be justified in reversing this case and sending it back for a retrial because of these claimed errors. Page 976 [6] V. It is a further contention of the appellant that the trial court did not take into consideration certain inferences and circumstances showing fraud and which if considered would have overcome the direct evidence of the witnesses. It is also the contention of the appellant that the cases of Womack v. Horsley, 178 Iowa 1079, 1087, 152 N.W. 65, and Johnson v. Carter,143 Iowa 95, 120 N.W. 320, are applicable to the situation as presented in this case. The legal propositions therein set forth are good law as applied to certain circumstances and cases. However, we are here presented with the situation of a law action triable to the court wherein it made certain findings and conclusions of law. Then, too, there is no showing that the trial court did not consider the possible inferences to be drawn from the evidence. However, we do not believe that the inferences for which the appellant contends are of such a nature that we, as an appellate court, could say that they would justify us in setting aside the order and judgment of the trial court. [7] VI. It is the further claim of the appellant that there was a relationship of trust and confidence existing between the parties and that under such circumstances the record should be closely scrutinized. It is the claim that where there is evidence of trust and confidence this amounts to constructive fraud as alleged in the appellant's petition. We have examined the record as presented and we do not find that the evidence warrants a holding that there was present a relationship of trust and confidence such as to justify this court in placing the burden on Dan Sheridan of overcoming the presumption of undue influence and thereby result in the setting aside of the order entered by the trial court. Upon a review of the record as presented we have concluded it sustains the trial court and that there are no grounds upon which we could and should reverse. We therefore affirm. — Affirmed. All JUSTICES concur. *Page 977	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431893/	The disputation herein arises out of the following facts: Alice L. Graham died testate on the 13th day of February, 1924, in Fulton County, Illinois. Her will was duly admitted to probate in that county, and later, as a foreign will, in Pottawattamie County, Iowa. She was the owner of large tracts of land in Pottawattamie and Cass Counties, but, so far as we are concerned, the seventeenth paragraph of her will is the one which gives rise to the questions involved herein. It reads as follows: "In consideration of the fact that my deceased sister, Caroline J. Graham, and myself, have for many years past owned lands in Pottawattamie and Cass Counties in the state of Iowa, and said lands are to be sold as hereinafter provided and being Page 1068 desirous of setting apart a fund for the purpose of education of the young men and women of said counties respectively, "I give and bequeath to the First National Bank (trust department) of Council Bluffs, Iowa, trustee, the sum of $25,000 out of the funds derived from the sale of lands in Pottawattamie County to be known as the John G. and Lydia Graham Scholarship. In trust, however, to be by said trustee safely invested and the income therefrom used for the purpose of defraying the expenses of some one or more young men or women while attending some college or university in the state of Iowa. And I further give and bequeath to the First National Bank (trust department) of Council Bluffs, Iowa, trustee, a further sum of $25,000 out of the funds derived from the sale of said lands in Pottawattamie County to be known as the John W. Graham Scholarship. In trust, however, to be by said trustee safely invested and the income therefrom used for the purpose of defraying the expenses of some one or more young men or women while attending some college or university in the state of Iowa. "And for the purpose of determining the young men or women who shall have the benefit of said two last mentioned scholarships, I hereby authorize and empower the said trustee to arrange with the proper school authorities as said trustee may deem advisable in said county of Pottawattamie in the state of Iowa, for a competitive examination, upon such subjects as such school authorities and the said trustee shall agree upon; said examination to be open to all Protestant young men or women, graduates of any high school in said county within two years immediately preceding such examination who are of good moral character. The young man or woman obtaining the highest general average in such examination shall have the benefit of these provisions of my will and said income from said trust fund shall be expended by the said trustee toward paying the tuition, board, lodging, traveling expenses and other necessary expenses of such applicants while attending some college or university in said state of Iowa, to be agreed upon between the successful applicants and the said trustee, so long as such applicants shall faithfully obey the rules and regulations in force at such institutions and shall satisfactorily do the work Page 1069 prescribed for students in such college or university or until his or her graduation. "Whenever the person selected as a beneficiary for either of the scholarships above provided for shall finish the course of study in such college or university, or shall forfeit his or her right to the benefits of this provision by reason of misconduct, violation of the rules or regulations of the college or universities, or shall fail to satisfactorily do the work prescribed for students in said institution, or for any reason whatever, then there shall be held another competitive examination, in the same manner as in this clause hereinbefore described for the purpose of selecting another young man or woman as such beneficiary of this provision, which said examination shall be open to persons having the same qualifications as hereinbefore mentioned." There are two other sections, providing two scholarships out of the proceeds of land sold in Cass County, of $25,000 each, naming the same trustee, and making the same provisions as to the beneficiaries, their education, etc., as to the first two scholarships above provided. The executor of Alice L. Graham's estate, being called upon to pay the inheritance tax thereon, on the 8th day of October, 1925, paid to the state treasurer the sum of $14,574.31, which was 5 per cent on the full appraisal value of all of the land situated in Pottawattamie and Cass Counties. This, of necessity, made payment of 5 per cent on the four trusts of $25,000 each, above referred to; and it is to recover this $5,000 that this action was brought. At the time of the death of Alice L. Graham, the statute in force covering the question involved read as follows: "The tax imposed by this act shall not be collected: * * * "(b) When the property passes to societies or institutions within this state incorporated for educational or religious purposes, or to cemetery associations or societies within this state organized for purposes of public charity, including humane societies." The above is a part of Section 3, Chapter 38, of the Acts of the Thirty-ninth General Assembly, which appears later as Section 7308, Code of 1924. If the case were to be ruled under this section, it is apparent that these bequests did not come within the exceptions Page 1070 provided by the statute. However, Chapter 150 of the Acts of the Forty-first General Assembly in part reads as follows: "(3) When the property passes in any manner for purposes of public charity, or for fraternal charitable institutions not maintained or operated for pecuniary profit including property which has heretofore so passed and upon which said tax has not been paid." This latter law went into effect by publication on the 19th day of March, 1925, and, as heretofore said, this tax was not paid until October of that year. It therefore was "property which has heretofore so passed and upon which said tax has not been paid," within the provisions of the last above quoted statute. If it be found that it is the kind of property designated in said sections, then it was not subject to this 5 per cent tax, because of the exemption last above set out. It was the finding of the lower court and the contention of the appellee here, that this property passed for the purpose of public charity, and therefore was within the provisions of the exemption provided in the last statute above quoted, especially that part which says: "When the property passes in any manner for purposes of public charity," etc. To this question we will now give our attention. The term "charity," while not susceptible of a complete definition, is a term of much wider significance when used in law than in common speech. In the case of Union Pac. R. Co. v.Artist, 9 C.C.A. 14 (60 Fed. 365), Judge Sanborn, quoting fromJackson v. Phillips, 14 Allen (Mass.) 539, 556, says: "`A charity, in the legal sense, may be more fully defined as a gift to be applied, consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government.'" A shorter definition, possibly, is that given by Lord Camden, as follows: "`A gift to a general public use, which extends to the poor, as well as the rich.'" 5 Ruling Case Law 292. Generally speaking, gifts for schools and educational purposes Page 1071 have always been looked upon and favored by the courts and have always been sustained, as charitable gifts. 11 Corpus Juris 316. That it may be limited or restricted to a particular purpose or use is also settled. Dexter v. Harvard College, 176 Mass. 192 (57 N.E. 371); Farmers' L. Tr. Co. v. Ferris, 67 App. Div. 1 (73 N Y Supp. 475); State v. Toledo, 13-23 Ohio Cir. Ct. (O.S.) 327. A gift of this character providing for school books has been sustained. Higginson v. Turner, 171 Mass. 586 (51 N.E. 172). That the education provided for need not be a general education, but may be special or specific, was decided in In re Will ofRobinson, 203 N.Y. 380 (96 N.E. 925). Or it may be one for the education of young persons in domestic and useful arts. Websterv. Morris, 66 Wis. 366 (28 N.W. 353); Almy v. Jones, 17 R.I. 265 (21 A. 616); Cresson's Appeal, 30 Pa. St. 437. A gift for the purpose of providing manual training or training in the trades is valid. Richards v. Wilson, 185 Ind. 335 (112 N.E. 780). One for the promotion of science, learning, and useful knowledge by other means than schools or colleges, or for the direct instruction of people or students, is equally a public charity. Drury v.Inhabitants of Natick, 10 Allen (Mass.) 169; Sargent v. Cornish,54 N.H. 18. A bequest of a fund for giving of prizes and medals for educational or literary work is a valid charitable gift.Coleman v. O'Leary's Exr., 114 Ky. 388 (70 S.W. 1068); Bartlett,Petitioner, 163 Mass. 509 (40 N.E. 899); Palmer v. Union Bank,17 R.I. 627 (24 A. 109). In 11 Corpus Juris 316 to 320, is gathered a wealth of authority on this proposition. Under these authorities, there can be no question that the purpose of these bequests in the instant will was charitable. The question left is whether or not the same is a "public" charity. The word "public," when used in connection with charity, refers to the purpose and intent of the trust, as being for the benefit of the public in general, or for some object so general and indefinite in its character as to be deemed a common benefit, — and not to the method of its execution. A gift is a "public" charity when there is a benefit to be conferred upon the public at large, or some portion thereof, or upon an indefinite class of persons. Such gift need not be open to everyone in the community, however. By the designation of a class in a community Page 1072 a charity becomes public. 5 Ruling Case Law 293. It is there further said, in discussing this question: "Even if its benefits are confined to specified classes * * of a particular town, it is well settled that it is a public charity [citing Burbank v. Burbank, 152 Mass. 254 (25 N.E. 427)]." The cry has come down to us through the years, from the foundation of our government, that "we must educate, or we must perish." Everyone recognizes the wisdom of this call, and anything by way of gift of this kind that aids in educating any portion of our citizens is a public benefit. We conclude, therefore, that the bequest provided for in this will was rightly held by the district court to be a "public" charity, within the meaning of the exemption statute above quoted. Refunds of this kind are provided for in Section 7396, Code of 1924. The ruling of the district court was right. — Affirmed. EVANS, C.J., and De GRAFF, MORLING, and WAGNER, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431894/	The plaintiffs are executors of the estate of Ross Hall Skillern, deceased. In his lifetime Skillern took out two policies of accident insurance with the defendant company, each in the sum of five thousand dollars, one of which policies was issued July 2, 1930, being No. BP 100921, and the other being No. BP 100955, issued July 14, 1930, and each making the estate of the insured the beneficiary. The insuring clause in each policy was as follows: "DOES HEREBY INSURE Ross Hall Skillern (hereinafter called the Insured) under classification A, by occupation Physician against loss or disability as herein defined, resulting solely from bodily injury (independently and exclusively of disease, whether disease pre-exists or be thereafter contracted) and effected solely through external, violent and accidental means", etc. The insured died September 20, 1930. Proofs of death were filed within proper time, and suit was brought on each policy June 24, 1931. The petition was in two counts, each count containing the date of death and the injuries from which death resulted as sustained on steamship Baltic enroute from Liverpool to New York, September 11, 1930; that the injuries were fracture of the third, fourth, fifth and sixth ribs in the mid-axillary line on the left side, causing intracranial fat embolus, or blood clot, from which death resulted. The answer to the petition was a general denial, but defendant admitted the issuance of the policies as set out in the petition, and pleaded further: "For further answer the defendant denies that the death of the insured resulted solely from bodily injuries effected through external, violent and accidental means and alleges the fact to be that the said Ross Hall Skillern did not die as a result of an accident." And defendant admitted that due proof of loss was furnished within the time required by the terms of the policies. So under the issues in this case it is not only incumbent on plaintiff to show that the decedent met with an accident fracturing several ribs, claimed to have been fractured, but in addition to show that subsequently death took place and was caused by an intra-cranial fat embolus, or blood clot, which resulted Page 22 from the accident, for under the policy or contract of insurance it must have resulted solely from bodily injury (independently and exclusively of disease, whether disease pre-exists or be thereafter contracted) and effected solely through external, violent and accidental means." Ross Hall Skillern, the injured, was a physician about 54 years of age, practicing in Philadelphia, Pa., and he took out the policies a short time before he and his wife, one of the plaintiffs herein, started on a trip to Europe in 1930, and from which they started to return September 6, 1930. While on the return trip on the steamer "Baltic" the doctor and his wife took breakfast together September 11th, and left the dining room about ten a.m., he going toward the deck and she to their stateroom, where she remained about a half hour, then she went to the deck, but noticing it was slippery, she went to the salon and read. She did not see the doctor until about twelve o'clock noon, or about two hours after leaving him. She found him lying on the bed, on his back, with pillows under his left side, with his coat off, and looking very white, and his face showed suffering; the whiteness continuing for some time. During the remainder of the voyage Dr. Skillern took no exercise, but spent his time in the stateroom or in his deck chair. Following September 11th he used more pillows on his bed, and they were placed under his left side. During that time he would groan every time he moved. He would frequently complain of pains when dressing, or when raising his left arm, and said the pain was in his left side. So far as Mrs. Skillern knew, previous to that morning, the doctor did not have pain in his left side, and when she left him that morning of September 11th his color was natural, not white or pale. During the taking of testimony the following took place: "Q. When you first saw Dr. Skillern in his stateroom about 12 o'clock, or noon of September 11, 1930, what, if anything, did he say to you? "Mr. Guthrie: Objected to as incompetent, irrelevant and immaterial, and not part of the res gestae, calling for hearsay testimony. "Mr. Brammer: We are offering this testimony as a part of the res gestae. "The Court: I am going to sustain the objection at this time. (Plaintiffs except.) Page 23 "Mr. Brammer: Plaintiffs at this time offer to prove by the witness Eliza P. Skillern, if permitted to do so, that about 12 o'clock on September 11, 1930, Mrs. Skillern saw her husband in his stateroom aboard the steamship Baltic; that as soon as she saw him at that time he said to her, `I slipped and fell on the deck and have a terrible pain in my left side.' "Mr. Guthrie: To which offer the defendant makes all the objections heretofore made when the question was propounded, and which was ruled upon by the court for the reason that the same is incompetent, irrelevant and immaterial, and for the further reason that it is not a part of the res gestae, nor does it tend to prove the res gestae, nor is it competent as a part of the resgestae. "The Court: The objection will be sustained at this time. (Plaintiffs except.)" We have had something to say heretofore in reference to the rule of res gestae in Califore v. Ry. Co., 220 Iowa 676, 263 N.W. 29. Califore, the plaintiff's decedent, made declarations shortly after his injury, and they were held admissible as substantial evidence as a part of the res gestae. In Stukas v. Warfield-Pratt-Howell Co., 188 Iowa 878, 888, 175 N.W. 81, 84, one Stukas was injured in an elevator, and suit was brought by his administrator for death resulting from the injury. When the deceased was found his eyes were bulged out of his head and real bloodshot, and he was unconscious. He was taken to the hospital, where he said of the operator of the elevator, the "son of a bitch" would not stop the elevator when he hollered. Others heard him. On his wife's arrival at the hospital he said to her that he got his foot caught in the elevator and the elevator man would not stop, but went right on. In the Stukas case the court said: "We have repeatedly said that the proper test of admissibility of such statements `is whether they relate to the principal transaction and are explanatory of it and are made under such circumstances of excitement still continuing as to show they are spontaneous and not the result of deliberation or design. * * * Within this general rule the admissibility of the declaration under the circumstances of the particular case is largely within the discretion of the trial judge. The facts and circumstances Page 24 of no two cases can be precisely alike and the exact length of time is not mathematically controlling.'" Hinnah v. Seaba, 193 Iowa 1206, 188 N.W. 909, lays down the rule that statements relative to what took place at an encounter, even tho made in response to nonleading questions, are admissible as part of the res gestae, when made at a time and place and under such circumstances as to preclude the idea of sinister motive, when they are such as to afford a reasonable or reliable explanation of the encounter. In this case something like an hour elapsed between the occurrence and the statements in question. Vernon v. Iowa State Trav. Men's Assn., 158 Iowa 597, 600, 138 N.W. 696, 698, where the plaintiff brought suit on a certificate of accident insurance, she was permitted over defendant's objection to prove that while she and her husband were at the sanitarium the husband went to take a bath, and upon his return he exhibited to her one of his limbs which bore an abrasion of the skin. He exclaimed to his wife, "I want to show you how rough that damn fool was with me in the bathroom." The court said this was properly res gestae of the transaction, and there was no error in overruling defendant's objection. Rothrock v. Cedar Rapids, 128 Iowa 252, 254, 103 N.W. 475, 476, says that the declarations of one injured as the result of a fall on a defective sidewalk, as to the manner of the fall and the place at which the injury was sustained, which were made within thirty minutes after its occurrence and while suffering therefrom, are admissible as res gestae. The statements were offered in a deposition of a daughter, but the answers of the deposition as relating to the declarations, were stricken out on defendant's motion, and the daughter was not allowed to testify thereto. The plaintiff made an offer to prove the deceased made declarations, which was overruled. The court said: "In our opinion, the declarations of a deceased, made within a half hour after she received the injury from which she was suffering at the time the declarations were made, might be proven, as a part of the res gestae of the injury from which deceased was suffering, as explanatory of her then condition, and connecting such condition with the injury which had caused it. The declarations were made so soon after and under such circumstances that they clearly appeared to be spontaneous and Page 25 unpremeditated. While it is difficult to state any precise rule in accordance with which the admissibility of such declarations can be definitely determined for all cases, our conclusion in this case is amply supported by the following authorities: Keyes v. Cedar Falls, 107 Iowa 509, 78 N.W. 227; Travelers Ins. Co. v. Mosley, 8 Wall. 397, 19 L. Ed. 437; Murray v. Boston M.R. Co.,72 N.H. 32, 54 A. 289, 61 L.R.A. 495, 497, 101 Am. St. Rep. 660; Augusta Factory v. Barnes, 72 Ga. 217, 53 Am. Rep. 838; Lewis v. State, 29 Tex. App. 201[29 Tex.Crim. 201][29 Tex.Crim. 201], 15 S.W. 642, 25 Am. St. Rep. 720." [1] We think under the circumstances of this case, where less than two hours before Dr. Skillern and wife had separated at the dining room, he going toward the deck, and she, in about a half hour afterwards, going on to the deck and finding it slippery went to the salon to read. When later she went to her stateroom she found her husband in the condition described, and the statements made to her at that time are admissible, as a part of the explanation why he was suffering pain, at least, and as a spontaneous statement explanatory of his condition and what led to it. And that as such it should have been admitted, and for these reasons the court in excluding the statement committed error. Miss Lusch, secretary to Dr. Skillern, testified that when he came back from Europe he came to the office on the 16th but attended mostly to correspondence; that on the 17th he saw a few patients, as on the 18th, 19th and 20th. That he complained of pain in his side when she helped him on with his office coat, and she observed the change in his manner when he changed from his street coat to his office coat; when she helped him on with his coat and as he put his hand in his sleeve he would groan. She observed this every day after his return from Europe until Saturday, the 20th. That on the 20th he came in from Dr. Talley's office, about forty feet from his own, and reclined on his couch. She at that time observed no impediment in his speech or mental confusion, or weakness of extremities, but he moved about going from one room to another, and she did not notice anything unusual or abnormal in his appearance. That as he reclined on his couch he appeared to be in pain, and she remained with him in his room until Dr. Talley came in. Then she stepped into the hall. Later she entered Dr. Skillern's Page 26 room and he reminded her that he had an appointment at Bahls restaurant with a man coming from Washington and he asked her to go over and get the man, and that when she brought him over he would be able to drive home. She conversed with the doctor at that time about 1:10, and observed nothing unusual in his eyes or facial expression. He appeared to be in pain at the time. She returned from the errand about 1:25 and Dr. Skillern was still on the couch, but unconscious. She called Dr. Talley and returned to the room, and Dr. Skillern died at about 1:30 p.m., September 20, 1930. Dr. Bates, a physician from Philadelphia, saw Dr. Skillern at his office on September 17th. Skillern had sent for the doctor to examine him, because of pain in his chest. He complained of pain over the front of chest, back and side. Dr. Bates found extensive tenderness in the area in which he described his pain, posterially, laterally, and the front of the upper left chest. This tenderness became pain on deep inspiration, and cough, which he did at the doctor's request. The doctor suspected a fractured rib and made arrangements for X-ray examination with Dr. B.P. Widmann. Dr. Widmann took two X-ray pictures, exhibits 5 and 6. Dr. Bates again saw Dr. Skillern on the 18th, and found that as a result of the application of heat he felt a little more comfortable, but still suffered pain in the chest. In the absence of X-ray evidence of fracture the doctor concluded that the pain was due to a contusion, and advised the continuation of heat and rest. Following the receipt of exhibit 5 from Dr. Widmann, Dr. Bates assumed there were no fractured ribs and his advice for treatment was based on that assumption. After Dr. Skillern's death Dr. Bates examined the X-ray pictures again; one he had seen before. They were taken at different angles. The one picture he had seen before showed no evidence of fracture. This picture was taken from position known as A-P. The second picture showed distinct evidence of complete fractures of the third, fourth, fifth and sixth ribs in good alignment, in the mid-axillary line on the left side. He was present when the post-mortem examination took place. Dr. Widmann who took the two X-ray pictures informed Dr. Bates that he was unable to find any evidence of fracture, that only one of the two films made was satisfactory for diagnosis. Dr. Skillern did not see the films, and no report was made to him. He, Dr. Widmann, admits giving a letter to Dr. Bates Page 27 in which he said there was no demonstration of fracture in the films. An autopsy was performed on the body, which disclosed the fracture of the third, fourth, fifth and sixth ribs on the left side in the mid-axillary line. Whatever may have been the imperfections in the two films taken, which did not result in the disclosure of the fracture prior to the death of Dr. Skillern, the autopsy did disclose that, and a re-examination of the films disclosed the fracture. The plaintiff then put in the testimony of experts based upon a hypothetical question, and there was testimony by them that was intended, if taken as true, to show that the death of Dr. Skillern was caused by an intra-cranial embolus. True, it was not as strong as it might have been, but the experts so testified. At the conclusion of all the testimony the defendant moved the court for a directed verdict. The motion was overruled, and the defendant then put in its evidence, which evidence was a number of experts called by the defense to meet the testimony of the experts called by the plaintiffs. And they seemed to meet it, because the two sets of experts differed on about every question put to them. The difference was so great that if it is a fair sample of conclusiveness of the finding of physicians, it is difficult to find out what the exact truth is. At the close of all the testimony the defendant again moved for a directed verdict, and motion was overruled. Thereupon the court instructed the jury, and the jury after retiring and considering the case, brought in a verdict for the defendant. Exceptions were taken and properly preserved by the court. Motions for new trial were made, and they were all overruled. As we view the record, and as the lower court viewed it, evidently there were questions in the case for the jury, and about the only other question we care to discuss is as to the exceptions to the instructions and the error assigned thereon. [2] The appellant excepts to the 16th instruction given by the court. That instruction was as follows: "No mere weight of evidence is sufficient to establish the cause of the assured's death unless it excludes every other reasonable hypothesis as to the cause of death, and as a great amount of the testimony is based upon the opinion of experts, you should consider and determine that all causes of death Page 28 other than a fat embolus or blood clot have been excluded from your findings." Amongst the objections registered to the instruction was, "The instruction is erroneous, confusing, misleading and prejudicial, in that: "(a) It places upon the plaintiffs the burden of proving their case beyond a reasonable doubt, whereas the law requires only that their case be established by a preponderance of the evidence." Another objection was that it places upon plaintiffs an unfair, unjust and unlawful burden, in that they are required to establish the alleged cause of death by proof of a different and substantially higher degree than that prescribed by law. And again, that the last half of the instruction is unintelligible, misleading, confusing and inherently prejudicial, which reads: "and as a great amount of the testimony is based upon the opinions of experts, you should consider and determine that all causes of death other than a fat embolus or blood clot have been excluded from your findings." If the first half of the instruction is correct, in our view the last half is neither unintelligible, misleading, confusing nor inherently prejudicial. For the court meant only that to find for the plaintiff it must be that death resulted from an embolus. We will consider first the question whether or not the burden of proof of the case is properly laid down in the first half of the instruction. This instruction, it is true, follows the language of the court in Asbach v. C.B. Q. Ry. Co., 74 Iowa 248, 37 N.W. 182, in which the court says: "The main question in the case is whether the judgment is supported by the evidence. It is undisputed that the animal in question was killed while running at large by falling from a bridge on defendant's railroad, and that the track at that point was not fenced. None of the witnesses claim to have seen the accident, and the exact time when it occurred cannot be determined from the testimony. The engineers who were employed on that part of the road were examined, and each testified in effect that the animal was not struck or thrown from the bridge by his engine, and that he did not, at any time near the date Page 29 when it was found dead beside the bridge, see it upon the track or bridge. It was also proven that all the trains at that time passed the point in question by daylight. Plaintiff claims, however, to have established certain circumstances which lead reasonably to the conclusion, as she claims, that the animal, being frightened by an approaching train, ran upon the bridge until it fell upon the ties, and, in struggling to arise, it fell to the ground below, and was killed. Unless this theory as to the cause of the injury can be maintained, the judgment cannot be upheld, for there is not only no evidence that the animal was struck and thrown from the bridge by a passing train, but there is positive evidence to the contrary, and no effort was made to impair the credit of the witnesses who gave that testimony; and when we look into the testimony relied upon to establish the theory, we think it utterly fails to establish it. The circumstances relied upon are that the animal was exceedingly nervous, and was always liable to be frightened by a moving train or locomotive, and that it was with great difficulty that it could ever be driven upon or about a railroad track; that a train was stopped near the bridge on the evening of the first of August, that being two or three days before plaintiff learned of the injury; and that a witness who, on a day near that date, passed near the bridge at three o'clock p.m., and again at a later hour, saw the horse lying dead by the bridge on his return, but did not see it when he passed the first time. The evidence of the stopping of the train is exceedingly unsatisfactory, none of the witnesses having seen it stop. They were all more than a mile from the bridge at the time, and they judged that it stopped from the noise that they heard; but, if it should be conceded that it did stop at the time alleged, there is absolutely no connection between that circumstance and the death of the animal, or, at least, none is shown. The witness who first saw it after the injury did not pretend to fix the date when he saw it. The fact that he saw it at that hour in the day is of no materiality at all, unless the circumstance happened on the evening on which the train was stopped; and whether it did happen on that evening is a matter of mere conjecture. A theory cannot be said to be established by circumstantial evidence, even in a civil action, unless the facts relied upon are of such a nature and are so related to each other, that it is the only conclusion that can fairly or reasonably be drawn from them. It is not sufficient Page 30 that they be consistent, merely, with that theory, for that may be true, and yet they may have no tendency to prove the theory. This is the well-settled rule, and it is manifest that under it plaintiff's theory is not established. The facts relied upon to prove it are quite as consistent with the theory that the animal went upon the bridge of his own volition, or that he was frightened by something else than a train, and ran upon it, as with it." The language of this court in the cited case has been approved not only by numerous decisions of this court, but by numerous decisions of the courts in other states. A long list of these authorities is cited by the appellee in its brief, 22 of which are from the supreme court of Iowa. But in the view that we take of this case, the Asbach case is not controlling. In that case there was nothing but circumstantial evidence. In this case, as we view it, there is evidence which is not circumstantial, from which the jury might find the fact that Dr. Skillern was injured by some external violence, and that that injury took place about the time claimed by the plaintiff, on September 11, 1930. That as a matter of fact, the ribs of the doctor were cracked or broken; an X-ray disclosed this prior to the death of Dr. Skillern; that the autopsy disclosed that the ribs were fractured, and that this must necessarily have been by violent, external means. So there was some evidence here outside the evidence of the physicians, that Dr. Skillern received an injury at sometime which resulted in the ribs being in the condition they were in. So, without in any way questioning the Asbach case, and the cases following it, we necessarily come to the conclusion that the instruction as given placed upon the plaintiff an undue burden of proof in the first half thereof. There is evidence from which the jury could find that Dr. Skillern received by violent, external and accidental means a fracture of the ribs. This outside of the expert opinion evidence. With that added, to find that the death was the result of the accident and was caused by a fatty embolus or blood clot. In other words, it made a jury question which the jury had a right to decide under proper instructions, and without plaintiffs being required to prove their case beyond a reasonable doubt. What is the evidence, outside of the facts which we think the jury was warranted to find, that Dr. Skillern received by violent, external and accidental means a fracture of the ribs, Page 31 that would warrant the jury in finding that the death was the result of the accident, and resulted from a fatty embolus, or blood clot? It is to be found in the testimony of the experts. We think on the whole case that this testimony permitted plaintiffs to go to the jury. In other words, it made a jury question which the jury had the right to decide under proper instructions, and without plaintiffs being required to prove their case beyond a reasonable doubt to exclude every other possible theory of death than the one claimed. A very good statement of the law as applied to expert testimony is found in Vol. 3, Sec. 258, of Ford on Evidence, a recent publication. We here set out the section: "There are two classes of cases in which expert testimony is admissible. To the one class belong those cases in which the conclusions to be drawn by the jury depend upon the existence of facts which are not of common knowledge but which are peculiarly within the knowledge of men, who, by experience and study, are enabled to accurately observe them. If, in such cases, the jury, with all the facts before them, can form a conclusion thereon, it is their sole province to do so, and the expert will not be permitted to assume their function by giving his conclusion or opinion based upon them. "On the other hand, there are cases in which conclusions to be drawn from the facts stated or observed by the expert or testified to by others, depend upon knowledge or skill, not within the range of ordinary training and intelligence. In such cases, not only the facts but the conclusions to which they lead, may be testified to by qualified experts, and it makes no difference whether the jury must pass upon them or not, providing the necessity for receiving the opinion exists. "But opinions are admissible only when, from the nature of the case, the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon and no better evidence than such opinions is obtainable. When the jury can form proper conclusions, after facts known only to the experts have been disclosed, it is the jury's province to draw the conclusions." It will be observed that within this rule it says that "in such cases not only the facts but the conclusions to which they lead may be testified to by qualified experts, and it makes no Page 32 difference whether the jury must pass upon them or not, providing the necessity for receiving the opinion exists." Facts such as were in issue in regard to the cause of the death of Dr. Skillern, cannot in the nature of things be stated or described to the jury in such a manner as to enable the jury to form an accurate judgment thereon. And no better evidence than such opinion is obtainable. This seems to us to be a logical statement of the reasons for the using of the testimony of experts, as the testimony was used in this case. The plaintiff called to the witness stand four physicians as experts, and propounded to each a hypothetical question, covering 117 lines in the printed abstract, which purports to be and is a very good summary of the testimony in the case. The same question was asked each witness, and at the end of the hypothetical question each witness was asked, "Assuming the facts set forth in the hypothetical question to be true, in your opinion might Dr. Skillern's death have been caused by an intra-cranial embolus?" In each case this was followed by a second question: "Assuming the facts set forth in my hypothetical question to be true, what in your opinion was the probable cause of Dr. Skillern's death?" The first medical expert called by the plaintiff was Dr. Hugh M. Miller. In answering the first question following the hypothetical question he said, "Yes", and to the second question he answered, "traumatic fracture of the ribs with delayed or secondary cerebral embolus." The second physician called, Dr. Piersol, answered the first question, "It might have been", and the second question, "By exclusion, an intra-cranial embolus." The third physician called, Dr. Losh, answered the first question, "It could be caused by intra-cranial embolus", and to the second question he answered, "Cerebral embolus." Dr. Wolcott, the fourth physician called on direct, answered the first question, "I think so", and the second question, "I think he died from cerebral embolism." The defendant on its part called four physicians as such experts. The first one answered the first question following the hypothetical question, "No, sir", and said, "There were no Page 33 symptoms of cerebral hemorrhage." The next physician testified to the first question that the symptoms indicated cerebral hemorrhage as the cause of death. The last physician called on this answered the first interrogatory, "No, sir", and said, "In my mind the symptoms indicate a stroke of apoplexy or cerebral hemorrhage. To determine whether or not there was an embolus in the brain it would be necessary to have a post-mortem examination of the brain. The only thing that is lacking in this case for cerebral hemorrhage is paralysis. The fracture of four ribs could be caused only by the application of some external force or violence." So we have in this case experts called to testify as to the cause of death. Half of said experts said one thing, and the other half said another. Their testimony was contradictory one of the other. It makes us sometimes wonder whether or not, with such exhibitions as this, as to whether any reliance whatever can be placed upon expert testimony along these lines. But the law permits it. The law requires it. These men have spent years in the study of these things. To submit all the symptoms in this case to a jury composed of laymen, not learned in the technicalities of medicine or surgery, in the intricacies of the human system, would to a large extent, be like throwing pearls before swine. Juries would not know what to do with such facts, uninterpreted by persons whose education and training entitle them to speak of such facts. Here is conflict in this case as to the main question, — what caused the death of Dr. Skillern? If tried to a jury, the jury must decide. If tried to the court without the intervention of the jury, the court must decide. Where there is a disputed question of fact necessary to be determined, in the case, the judgment of the jury on the matter is final and conclusive if properly submitted. [3] What we have said about expert testimony applies largely to other testimony in the courts. Frequently witnesses who claimed to be eye witnesses to ordinary happenings in life, all apparently clear and honest, and who desire only to do the right thing, yet give different versions of the matter. The facts in this case present no more puzzling question than the facts in the ordinary case that comes before the court. The jury must decide. The court must instruct and lay down the rules by which the jury is to determine the case, and view the evidence, and presumably the jury follows these rules. And where the *Page 34 rules are laid down wrongly, although the jury may possibly arrive at the same result if left to it without instructions, yet where the court instructs and lays down the wrong rule, it must be conclusively presumed the jury followed the rule laid down by the court. So we think in this case that on account of instruction 16, and on account of the exclusion of the testimony of Mrs. Skillern as to the conversation with her husband when she came back to the stateroom, this case must be and is hereby reversed and remanded for new trial. KINTZINGER, DONEGAN, ALBERT, STIGER, and RICHARDS, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431897/	1. Fraud: MEASURE OF DAMAGES. A party sold a lot of sheep, representing them to be free from any disease, and especially such as "foot-rot" and "scab," which representations were false; and other sheep owned by the purchaser became diseased, because of the diseases above mentioned, imparted to them by the unsound sheep so sold to him: Held, that the purchaser was entitled to recover damages from the vendor for the injuries they sustained, and this without reference to whether or not it was known to such vendor, at the time such representations were made, that the purchaser owned other sheep. 2. Estoppel: PARTNERSHIP. A party who participates in negotiations for a contract of sale, and holds himself out as a partner in the ownership of such property, is estopped from denying such partnership, as against the purchaser. 3. Fraud: FALSE REPRESENTATIONS: DILIGENCE. The purchasers of diseased animals, on representations by the vendor that they were free from disease, cannot recover against such vendor for damages which could have been avoided by the exercise of due care and diligence. What constitutes due diligence, must be determined upon the facts of each case. No part of the testimony is before us, and what the facts were, therefore, we have no means of knowing. The errors assigned relate to the instructions given by the court, and raise for our consideration these questions: 1. Fraud: Measure of Damages. I. Plaintiffs had, at the time of purchasing these sheep, other sheep, and these, as they claim, became diseased and died because of the "foot-rot" and "scab" imparted to them by the unsound sheep so sold to them by defendants, without fault, c. The injury to these sheep so owned prior to this purchase, under the instructions, entered as an element in the damages recovered by plaintiffs. And now the point made is, that this was improper, unless defendants knew at the time of such sale: that plaintiffs had other sheep. It is not claimed that such damages would not be the natural consequences of defendants' (fraudulent) act, and as such properly recoverable in this action; but the claim is, that this could only be so upon the theory that defendants knew that plaintiffs had other sheep to be infected by the diseases named. Upon principle this position is not sustainable. Plaintiffs were entitled to recover all the damages of which the act complained of was the efficient cause. The loss of the sheep sold in consequence of their unsound condition Page 520 was the natural and usual consequence of the act. The other damages were special and peculiar, and they were set forth specifically by the pleader. And upon the assumption that plaintiffs used the care and diligence required at their hands, what matters it whether defendants knew that they had other sheep or not? Or what difference would it make if plaintiff, in ignorance of the unsound condition of these sheep, had afterward bought other sheep, which they lost by reason of the disease communicated to them by those bought of defendants? Defendants sold the sheep with the knowledge that plaintiffs had a right to and probably would place them upon their farm; and, if guilty as charged, they would be held liable for the damages naturally and reasonably resulting from such act. It is known as a matter of fact, that most farmers in this State do keep sheep, and nothing is more important to their success than to secure good, sound flocks. If one lot is procured, there is no duty to refrain from purchasing others, lest those purchased may be unsound, and thus all be lost. But the guarantor, or party making the false representations, sells with a knowledge that his purchaser may have or may purchase other sheep, and cannot screen himself from the consequences of his act upon the ground of ignorance. As well might he sell a weapon dangerous and "infernal" in its structure, representing it to be harmless, and nothing more than a desirable improvement in fire-arms, and then escape liability for injury to the purchaser's home or family on the ground that he did not know that he had either. The ground of the recovery is, that the loss actually happened while defendants' wrongful act was in operation — a loss attributable to their wrongful or fraudulent act, and it is not for them to say, we did not know plaintiffs had other sheep, and hence did not contemplate or undertake to be liable for so great a loss. Barnum v. Page 521 Vandusen, 16 Conn., 200; Jeffreys v. Bigelow, 13. Wend., 518. 2. ESTOPPEL: partnership. II. The court instructed the jury, that if Henry Langdon (one of the defendants) participated in the sale of, and so talked and acted in connection with the sale of said sheep as to lead plaintiffs, as reasonable men, to believe the said Henry was a partner in said sheep, and they so understood it, and (he) did not correct the impression, then he is estopped from now denying it as against plaintiffs. The giving of this instruction is now assigned as error, upon the ground that the defendant Henry is not liable, if not the owner or party beneficially interested, unless his representations were relied upon and induced the purchase. And we are referred, as sustaining this argument, toMcCracken `v. West (17 Ohio, 16). There, however, the representations were made to one person or firm, and a third party claimed the benefit of it. No such question is made or arises in this. Nor does the point made in argument arise, for the only proposition ruled by the instruction is, that this defendant might be liable though not a partner or interested in the sale, if he held himself out as such, and induced the plaintiffs to believe that he was such partner. That defendants would not be liable for the fraud, unless plaintiffs relied upon the representations made, was not a question, for this was clearly stated in other parts of the instruction. Whether the owner or not, there was no liability unless his representations were believed. And we cannot therefore see the pertinency of the objection stated. 3. FRAUD: false representations: diligence. III. There is no dispute as to the duty of plaintiff to use due care and diligence in preventing the spread of the contagion, and in curing those infected and diseased, and it is admitted that they could recover no damages which they might Page 522 have avoided by the use of such care and skill. The court instructed that they were not required to use the utmost care, nor the highest human skill; and with much else upon the same subject use this language: "If they (plaintiffs) used reasonable diligence and care, to obtain and apply such remedies and relief as the experience and knowledge of sheep men in that community afforded them, they did all that was required of them," and it is now insisted that this is not the correct rule. The cases cited by appellant, only go to the point that plaintiffs should show care and diligence on their part as well as fraud or misconduct on the part of defendants. To this effect are Lane v.Crombie, 12 Pick., 177; Smith v. Same, 2 Id., 621; Butterfield v.Forrester, 11 East., 60; Flower v. Adams, 2 Taunt., 314;Rathburn v. Payne, 19 Wend., 399; Woolf v. Beard, 8 C. P., 373;Sills v. Brown, 9 Id.,601. But here the question is, what will amount to such ordinary care and diligence? "Were plaintiffs bound to go abroad, and to seek advice and information from the most experienced herders of sheep in any part of the country, whether in this State or elsewhere? We certainly think not. The words "sheep men" and "community" must have a reasonable and practical construction. By the language "sheep men" is not meant the owner of a few sheep having no experience or opportunity to acquire the same. Nor does "community" mean three or four farmers or neighbors, but the society or public generally where plaintiffs herd. And if they obtained and applied the remedies used and recommended by "sheep men" — men having knowledge of the disease and of the means requisite and usually applied in relieving the same — in that "community," this wasprima facie due care and diligence, and they were not required to do more. Of course what would be due care under some Page 523 circumstances would be gross negligence under others, and no certain, inflexible rule can be given. Thus, if it appeared that the advice of one or more men, having extraordinary opportunities for information and possessing large experience, could have been obtained by going a short distance beyond the strict line of the "community," so called, it might show negligence on the part of plaintiffs to have failed to avail themselves of such advantages. But in the absence of such showing, or some similar fact, we cannot say, as a rule, that they were bound to do more than was required of them by this instruction. The diligence required was only such as a prudent man in such a situation, and under the circumstances, would have observed to prevent loss. Bizzell v.Booker, 16 Ark., 308. And while plaintiffs might, out of abundant caution, have consulted experienced sheep growers in other localities, the law did not require it of them. Let the judgment be Affirmed. *Page 60	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431899/	This proceeding was commenced by the State Highway Commission for the condemnation of certain land running through plaintiffs' farm for the construction of Highway No. 88. The commission, appointed to appraise the damages resulting from the taking of the necessary land for the Page 679 highway, assessed plaintiffs' damages in the sum of $3,277.75. The landowners appealed to the district court, where a verdict and judgment was rendered in favor of plaintiffs in the sum of $6,000. Defendants filed a motion for a new trial which was overruled, and defendants appeal. The amount of land taken comprises 9.63 acres, extending diagonally across the northerly portion of plaintiffs' farm from the northeast to the southwest corner of the quarter section. About 12 acres of the north portion of plaintiffs' farm had already been condemned for a railroad right of way extending in an easterly and westerly direction across that portion of the farm. The railroad right of way is 205 feet wide at the east line of the farm and 295 feet wide at the west end. The highway, where it enters the northeast corner of the quarter section, is 120 feet wide, extending to the center of the quarter section where it widens as it crosses the railroad right of way. After leaving the railroad right of way, the highway is again reduced to a width of 120 feet. The north portion of plaintiffs' land consisted of about 142 acres, which with the two highways comprised 160 acres. The balance of the farm consisting of 70 acres was attached to the south end. For convenience we herewith attach a plat showing substantially the geographical situation and condition of the land in question. The evidence shows that this farm was composed of fairly good, tillable, and rolling land, containing a set of fairly good farm buildings and improvements. The land was fenced into 20-acre tracts. The east 40 acres north of the railroad track is good farm land, but the west portion of the land is rolling and described as permanent pasture land. There is a triangular 5-acre tract of land in the southwest corner of the quarter section, lying north of the highway and south of the railroad tracks which the evidence shows to be rolling and steep and good only for pasture purposes. The land north of the railroad and west of the new highway to the west line of the farm is in permanent pasture. The entire farm, however, is generally described as a good, productive farm. The north portion of the land had already been separated by the condemnation of the right of way for the Chicago, Milwaukee St. Paul Ry. Company. The land condemned for highway purposes intersects the railroad right of way at about the center of the quarter section, so that plaintiffs' farm is Page 680 [EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.] Page 681 again separated by the right of way taken for highway purposes. The evidence shows, however, roads and underpasses across the railroad tracks had been constructed prior to the condemnation for the highway, and these crossings and underpasses were so constructed as to leave suitable passageways for cattle and travel between the different parts of plaintiffs' farm. The evidence also shows that all of plaintiffs' building improvements were located in the southeast corner of the quarter section and were not interfered with by the new highway. These buildings, improvements, and plaintiffs' orchard and garden remain intact and are not intersected in any manner by the construction of the new highway. The improvements consist of a dwelling house, two barns, silo, hog house, machine shed, one good well with a windmill, and two other wells. The residence and buildings adjoin a public road on the east side of the farm. The record shows that the south portion of plaintiffs' farm containing 70 acres had no improvements thereon whatever, and this portion of the farm was not intersected, interfered with, or affected in any manner by the construction of the new highway. The testimony also shows that the condemnation of the land for highway purposes did no damage to this 70-acre tract whatsoever. The farm was already separated by the railroad right of way over 200 feet wide extending across the center of the north portion of the farm. Ample provisions had been made by the railroad company for crossing the tracks. The record also shows that additional ample provision was made for crossing the highway by two large cattle passes under the highway, one near the southwest corner connecting the land south of the railroad right of way, and the other near the northeast corner of the farm connecting the land north of the railroad right of way. These cattle passes were made of concrete with concrete floors. In addition to these cattle passes, the Highway Commission also constructed two surface crossings from fence to fence on both sides of the new highway, and a driveway near the northeast corner of the farm from the paving to the north side of the farm. These crossings were placed at points requested by plaintiff. Appellant contends that an award of $6,000, being $623 an acre for the land taken, is excessive and that the State's motion for a new trial should have been sustained. The testimony shows without dispute that plaintiffs' farm as a whole was worth about Page 682 $21,000. An award of $6,000 for the land taken is, therefore, more than 25 per cent of the value of the entire farm. This amounts to nearly $30 an acre for the entire farm, and almost $45 an acre for the 142 acres composing the north portion of the farm. Much of the damage to plaintiffs' original farm had already been caused by the separation of the land in the north portion by the railroad right of way through the land long prior to the time of these condemnation proceedings. It is, therefore, clear that the damage to plaintiffs' farm by the construction of the highway is not as great as it would have been had the farm been in one entire tract at the time of the condemnation for the highway. The testimony shows that although about one half of the highway runs over good, tillable land, the other half crosses over pasture land. Plaintiffs' witnesses testified that the value of plaintiffs' farm with all the improvements thereon immediately before the condemnation proceedings was $100 an acre, and immediately thereafter it was worth only about $60 an acre. The evidence of the same number of witnesses for the defendants shows the value of the farm immediately before the property was taken was $100 per acre and the value immediately thereafter was $88 an acre. The substance of plaintiffs' testimony is that the difference between the value of the land immediately before and immediately after it was taken was about $10,000; while that of defendants witnesses was that the difference in the value of the land immediately before and after it was taken was about $3,500. The amount of the damages fixed by the jury as shown by their verdict was $6,000. There were 9.63 acres taken for the new highway, which would make the damages allowed $623 an acre. [1] We appreciate the rule that the taking of property for highway purposes without the owner's consent reduces the value of his farm to a greater extent than the land taken is worth per acre when attached to the farm. A railroad right of way over 200 feet wide across the north part of the farm had already been taken out. The different parts of the farm were, therefore, not rendered so much more inaccessible as to warrant the great reduction in the value of the farm as shown by the verdict of the jury. It is our conclusion that a verdict of $6,000 Page 683 for the unimproved 9.63 acres, under the record in this case, is grossly excessive and should be reduced. [2] Appellees contend that the question of damages is purely one for the jury. We concede it to be the rule that the question of damages in this kind of an action is generally for the jury. This does not mean, however, that the Supreme Court will not reverse a case for excessive damages where the record clearly shows the verdict to be so. Jenkins v. State Highway Commission,208 Iowa 620, 224 N.W. 66; Parrott v. Chicago Railway Co.,127 Iowa 419, 103 N.W. 352; Youtzy v. Cedar Rapids, 150 Iowa 53,129 N.W. 351. In the case of Youtzy v. Cedar Rapids, 150 Iowa 53, l.c. 57,129 N.W. 351, 352, this court said: "The court should be, and doubtless always will be, no less ready to interfere and set aside a clearly excessive verdict in condemnation proceedings than in actions of another character, but it is to be remembered that in such proceedings the lot owner is not a willing seller of his property, and he is forced to yield his title and surrender his estate in the interest of the general public, not infrequently to his great and irreparable inconvenience, if not actual loss." [3] It is the well-settled rule of law in this state that if the verdict appears to be so excessive as to indicate passion and prejudice in ordinary negligence cases, the verdict should be set aside. The same rule applies to condemnation proceedings. It is, of course, not the province of this court to measure the damages, but it is our conclusion from the record in this case that an award of $6,000 for less than 10 acres of unimproved land condemned in this action is grossly excessive and can only be accounted for as being the result of passion and prejudice. We are, therefore, constrained to hold that the judgment entered in the lower court was excessive and the motion for a new trial should have been sustained. Appellant also urges other errors for a reversal. In view, however, of the necessity for a retrial, a consideration of other questions raised is deemed unnecessary. For the reasons hereinabove expressed, the judgment of the lower court is hereby reversed. — Reversed. HAMILTON, C.J., and ANDERSON, DONEGAN, and RICHARDS, JJ., concur. Page 684 MITCHELL, J., dissents.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431823/	Amy M. Carpenter died testate in June, 1924, and one F.W. Curtis was appointed executor of her estate. It is claimed that Curtis, as such executor, filed a bond with the Page 555 1. EXECUTORS proper authorities, and entered upon the AND discharge of his duties. He died December 7, ADMINISTRA- 1925, and Gertrude M. Curtis, his wife, was TORS: appointed executor of his estate, and shortly liability on thereafter, Harold L. Haight was appointed bonds: executor, with will annexed, of the estate of summary Amy M. Carpenter. judgment: when permissible. Gertrude M. Curtis filed a report in her husband's estate, to which objections were filed, in which it was claimed that there was a sum slightly over $9,000 in the estate of Amy M. Carpenter for which Curtis had not accounted. In a proceeding had on these objections, it was found that $9,176.39 had been collected by Curtis, assets of the estate of Amy M. Carpenter, for which he had never accounted. The date of this finding by the court was October 26, 1926. It appears that the bond given by Curtis was signed by Mike O'Day and W.H. Keairnes, as sureties. In the above proceedings, the court further ordered that Haight, as administrator of the Carpenter estate, was empowered to file a claim in the Keairnes estate for that sum, plus 6 per cent interest from April 1, 1925, and to prosecute the suit now pending in the district court against the bondsmen. No such claim was filed. W.H. Keairnes died September 22, 1924, and his widow was appointed administrator of his estate. She died December 24, 1924, and Henry and Leo Keairnes were appointed administrators debonis non of the estate of W.H. Keairnes. This latter estate was duly settled and closed on October 30, 1926. It was solvent, and ample to pay more than any claim that the estate of Amy M. Carpenter, deceased, might have against it. On January 8, 1927, the district court made an order for Haight, as administrator of the Carpenter estate, fixing the time, place, and manner of service upon the bondsmen of F.W. Curtis, as executor, and fixing the amount due and unpaid from Curtis as executor upon the final report of Gertrude M. Curtis; and the order provided that five days' written notice be served upon Mike O'Day and the legal representative of William Keairnes, deceased, to appear and show why judgment should not be rendered against them as sureties on said bond. The Keairneses appeared to this application, and after trial, the application or petition of Haight, as administrator of the Carpenter estate, was dismissed, so far as the Keairneses were concerned. Page 556 On August 27, 1927, Mike O'Day appeared, and filed a motion attacking the petition or application of Haight, administrator, in which it was sought to hold O'Day as surety for the default of Curtis. This motion was overruled. On April 5, 1928, O'Day filed an alleged showing why judgment should not be rendered against him, in which he admits that he signed the bond of E.W. Curtis, as executor of the estate of Amy M. Carpenter, deceased, as one of the sureties thereon, and that Keairnes signed said bond, as the other surety, and showed the court that no judgment should be rendered against him for the following reasons: That he has been released by reason of certain promises and laches made by the heirs of Amy M. Carpenter, deceased, through their representative and administrator, Harold L. Haight, through his attorney, in connection with the claim against Mike O'Day, if any, by reason of his having signed said bond for the said F.W. Curtis. He further sets up the death of his cosurety, Keairnes, and the settlement and closing of that estate, and alleges that the attorney for the estate of Amy M. Carpenter, deceased, told him at different times that he (the attorney) did not expect to make claim against him, or to recover from him or the estate of William H. Keairnes, deceased, anything for or on account of his (O'Day's) having signed said bond, and never made any attempt to collect from him (O'Day) anything on said bond until long after the Keairnes estate was settled and disposed of. He then sets out the proceedings of Haight, administrator, against the Keairnes heirs, both on that estate and in permitting the claim to be filed on this bond, and the action of the court in objecting to the application and refusing to open the Keairnes estate. He further alleges that, by reason of the failure of Haight, the administrator, to file a claim against the Keairnes estate, he has been deprived of his right to recover from said estate anything for and on account of the liability of said estate on said bond, and that, by reason of laches on the part of the administrator of the estate of Amy M. Carpenter and her attorneys, they are estopped from claiming anything from this respondent; that, because the administrator of the estate of Carpenter released the cosurety on the bond, or permitted his release, O'Day is released from liability. He further pleads that Curtis, as executor, deposited money of the Carpenter estate Page 557 in the Dunlap State Bank, and that there was and is to his credit in said bank money that the present administrator of this estate is seeking to recover against the bondsmen of Curtis; that, at the time the money was so deposited by Curtis, said bank was solvent, and Curtis deposited the same believing, as an ordinarily prudent man, that the bank was solvent; that, if said money was lost, Curtis, as executor, was not liable, and that his bondsmen are not liable therefor; that, long after the deposit of said money in said bank, it was closed, and went into the hands of a receiver; and that it was subsequently reorganized, as the Dunlap Savings Bank, and took over enough of the assets of the Dunlap State Bank so that they were enabled to pay half of the deposits, as shown by the books of said bank; that there is now on deposit in the Dunlap Savings Bank one half of the money now claimed by the administrator of the Carpenter estate; that there are securities in the hands of the trustees of the Dunlap State Bank out of which may be made at least some of the remaining one half of the money belonging to the depositors in the bank; and that Haight, as administrator, has made no effort to collect any of said money. Wherefore, appellant asks that the application of Haight, as administrator of the Carpenter estate, be denied. The administrator of the Carpenter estate moves to strike each paragraph and sentence and all of the showing made by the defendant, O'Day, as to why judgment should not be rendered against him in the above matter, after the word "reasons," in the sixth line, on the following grounds: 1. O'Day admits that he executed the bond, a copy of which is attached to said showing and made a part thereof. 2. There is no denial in said showing that this court made the order referred to in said application of the administrator herein, or plea or claim by said Mike O'Day that said order was procured by fraud or other mistake. 3. That the said bond which respondent, Mike O'Day, admits he executed, is the joint and several obligation of said William H. Keairnes and said Mike O'Day, and therefore the release of said Keairnes or his estate, if any, is no defense to said application of the administrator of the estate of Amy M. Carpenter, deceased, as against the respondent. 4. That said order and decree of the court, rendered by Page 558 W.C. Ratcliff, judge, referred to in said showing, does not constitute any defense, bar, or estoppel to the right of the said administrator to have judgment against Mike O'Day, as demanded in his said application herein, for the reasons: (a) The liability of said Mike O'Day has been determined and adjudicated by the said order of this court on the 19th day of October, 1926, a copy of which is attached to said showing; (b) the said bond is joint and several; and (c) the said decree rendered by the court in the case tried before Judge Ratcliff was without jurisdiction of the subject-matter and void, because no claim was filed against said estate of William H. Keairnes, deceased, and it was not necessary to file such claim against said estate, and the court had no jurisdiction, therefore, of the subject-matter involved herein in the proceedings upon the application of this administrator to file said claim against said estate of William H. Keairnes, deceased, as shown by the decree of this court rendered on the second day of August, 1927, signed by Judge W.C. Ratcliff, and attached to said showing. 5. And said Mike O'Day was not a party to that hearing and trial upon the application of said administrator for authority to file claim against the William H. Keairnes estate, and therefore the decree rendered upon that hearing is not an adjudication of any of the issues involved herein. 6. That the said order and judgment of October 19, 1926, herein is an adjudication and determination of the liability of said Mike O'Day to the estate of Amy M. Carpenter, deceased. 7. That each and all of the statements made in the showing of Mike O'Day are sham, irrelevant, immaterial, and redundant. 8. That Curtis, as administrator of the Carpenter estate, never obtained any order of court to deposit said funds in said Dunlap State Bank. On October 15, 1928, this motion to strike, being submitted, was sustained. Haight, as administrator, amended his application by adding thereto that Curtis, during all of the time he was executor of the Carpenter estate, was president and general manager of the Dunlap State Bank, until its failure, on September 24, 1925; that Curtis had used from the assets of the Carpenter estate the sum of $600 as his fee, for which an accounting is requested. Page 559 He further asks that Mike O'Day should appear and show cause why judgment should not be rendered against him as surety on said bond in the sum of $1,729.47, as money due the estate of Amy M. Carpenter, with interest and costs. A motion was made to strike this amendment, which motion was sustained. Mike O'Day refused to plead further, or to make any further showing why judgment should not be rendered against him; and judgment was rendered against him in the sum of $11,980.54, with 6 per cent interest, and costs of the action. From this action by the court he appeals. The first question discussed is whether or not the court had the power to enter judgment against these sureties on a finding and order previously made, adjudicating the liability of Curtis as executor of the estate of Amy M. Carpenter. As heretofore noted, there was a finding that Curtis, as executor, was indebted to the Carpenter estate in an amount over $9,000, and an order was made to the administrator to pay this amount over to the Carpenter estate. Thereafter, notice was given to O'Day, as surety on the Curtis bond, to show cause why such judgment should not be rendered against him, as suggested thereby. This seems to be in exact accord with the provisions of Sections 11984 and 11985, Code, 1927, and in line with our holdings in the following cases: Weber v. Noth, 51 Iowa 375; Knoxv. Kearns, 73 Iowa 286; Reed v. Lane, 96 Iowa 454; Tucker v.Stewart, 147 Iowa 294; and Ellyson v. Lord, 124 Iowa 125. The order and judgment against the Curtis estate by reason of 2. EXECUTORS his being principal on the bond cannot be set AND aside by the sureties unless they show a good ADMINIS- defense to the action on the bond. The finding TRATORS: made by the probate court on the hearing of liability on objections to the executor's report, fixing the bonds: amount due from him to the estate, was an finding adjudication binding upon the sureties on his as to bond, in the absence of fraud or mistake. See executor's cases above cited. shortage: conclusive- ness. It follows, therefore, from these fixed rules of law that the sureties were not a necessary party in the proceedings to determine the amount of indebtedness owed by Curtis, as executor, to the Carpenter estate. According to the finding of the court at this point, the amount adjudicated was $9,176.39. Page 560 If we understand this record correctly, the item of $600 for fees to which it is claimed Curtis was entitled, was not involved or adjudicated in this first order. It must, therefore, be held that the objection was not well taken that the court had no jurisdiction to proceed in the way it has, to enter judgment against this estate, and that the method taken was the proper method of procedure marked out by Section 11985, Code, 1927, providing that such application shall be heard in a summary manner and judgment rendered against the sureties for the amount of money directed to be paid. The question of whether or not the deposit of funds belonging to the Carpenter estate by Curtis was made rightfully or wrongfully is beside the issue, as that was necessarily involved in the first order, adjudicating the liability of Curtis. It is strenuously argued that Haight, as administrator, was estopped from claiming anything at this point as against O'Day by reason of certain representations made to O'Day by the attorney for the Carpenter estate. He alleges that he 3. EXECUTORS relied upon these representations, and therefore AND did not file a claim against the estate of ADMINIS- William Keairnes, his cosurety. With this TRATORS: contention we cannot agree, for the following, collection among other, reasons: An executor or an and administrator of an estate can only act by and management with the consent and approval of the court, and of estate: in addition thereto, an attorney for the estate estoppel to cannot speak for the estate itself. If it be enforce assumed that the attorney for the administrator claim: did represent to O'Day that he need not file a non-right of claim against the estate of Keairnes, his attorney to cosurety, because the Carpenter estate expected bind estate. or intended to collect the liability under this bond solely from the Keairnes estate, yet, under these circumstances, we would not consider that the doctrine of estoppel applied. There is no question that O'Day had the right to file in the Keairnes estate any claim growing out of the contingent liability involved herein, under Section 11965, Code, 1927. It is true that the general rule is that the holder of a claim has no affirmative duty to file the same against the estate of the dead principal, and that a failure so to do will not release the surety. Jackson v. Benson, 54 Iowa 654; 50 A.L.R. 1214 and Page 561 note. It is also equally true that, where the holder makes representations to the surety that the surety need not file such claim against the estate of the dead principal, and that the holder will collect the whole indebtedness from the other parties liable on the paper, and, relying thereon, the surety refrains from filing a claim against the estate by reason thereof, the holder is estopped from afterwards making claim against the surety. Bullock v. First Nat. Bank, 196 Iowa 522, l.c. 528;Security Sav. Bank v. Smith, 144 Iowa 203; Yerxa v. Ruthruff,19 N.D. 13 (120 N.W. 758, 25 L.R.A. [N.S.] 139, note). If the claimant under this bond were other than an officer of the court, to wit, an executor or an administrator, there could be no question that this estoppel would be good. The question, therefore, is whether or not the same rule applies to an executor or administrator. As heretofore suggested, such officers act only under the order and approval of the court, and an attorney for an estate, by virtue of his general employment as such, has no right to release his cause of action without express authority from his client. See generally on this subject Kilmer v. Gallaher,112 Iowa 583; Kwentsky v. Sirovy, 142 Iowa 385, l.c. 395;Lingenfelter v. Bowman, 156 Iowa 649; Nothem v. Vonderharr,189 Iowa 43, 65. We conclude, therefore, that the defensive matter set up here as an estoppel cannot be so treated, because neither the administrator nor his attorney had authority to do the things on which an estoppel is based. It is to be remembered that the ruling before the court under 4. PLEADING: consideration is the action of the court in motions: striking the defensive matter pleaded by the motion to surety herein, and in entering judgment as strike claimed, by reason of the defendant's refusing defensive to plead further. Under these circumstances, matter in this motion, like a demurrer, admits the truth probate: of all matters pleaded, and the question is, effect. therefore, whether or not any of the matters pleaded constitute a defense. It is urged that the facts pleaded, — to wit, that there was certain money on deposit with the Dunlap Savings Bank, equaling something like one half of this claim, which had not been Page 562 5. APPEAL AND collected by the present administrator of the ERROR: Curtis estate, — were a fraud upon the court, review: when it was determined that the amount due from scope and the Curtis estate to the Carpentere state was extent: $11,000. This contention grows out of the fact harmless that, on the failure of the Dunlap State Bank, error in certain certificates of deposit were issued to striking the then executor of the Carpenter estate, in an defensive amount slightly over $5,000. The value of these matter. certificates was not shown, but, shortly after the judgment for $11,980 was entered herein, these certificates were paid, and the proceeds went into the hands of the administrator of the Carpenter estate; so that, in fact, no injury occurred to this surety by reason thereof. It is further claimed that through the failure of Haight, the 6. PRINCIPAL administrator of the Carpenter estate, to file AND SURETY: a claim in the Keairnes estate, this surety was discharge thereby released. What we have heretofore said of surety: in this opinion disposes of this question failure to against the contention of the surety O'Day. sue all sureties: It is next urged that, in the judgment entered effect. in this proceeding, an item of $600, hereinbefore referred to, was included; and this is assigned as 7. APPEAL AND error. With this we are disposed to agree. The ERROR: proceedings here were to fasten a liability on determina- this surety by reason of a previous adjudication tion and of the amount due from Curtis, as administrator disposition of the Carpenter estate, and in that of cause: adjudication this $600 was not included. It modifica- should not, therefore, have been included in tion: this judgment. elimination of excess We are cited to Article I, Section 9, of the in judgment. Constitution of the state of Iowa, under the claim that this appellant was deprived of his property without due process of law. The question is not argued before us, and suffice it to say, the procedure as marked out in the statute in cases of this character has been substantially followed. He has had his day in court, as contemplated by the section of the Constitution cited. The item of $600 was improperly included in the original *Page 563 judgment entered, and it will be reduced in that amount; otherwise, affirmed. — Modified and affirmed. MORLING, C.J., and STEVENS, FAVILLE, and WAGNER, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431825/	On July 9, 1926, the appellee bank obtained a judgment against the defendant John Moyse in the sum of $8,828.21 and costs, upon which there has been credited the sum of $6,500. The defendant Hans Bremer owns and operates an elevator at Lawton, and in December, 1926, he purchased from John Moyse, the judgment debtor, a quantity of corn, the purchase price of same amounting to $785.40. The appellee bank garnished the defendant Hans Bremer for the proceeds of the sale of said corn; the appellant Andrew Moyse, son of John Moyse, made claim for the selling price of said corn. Page 335 This action is in equity, and was originally begun by the appellee bank against Hans Bremer, and in the petition it asks that the purchase price of said corn be subjected to the payment of the aforesaid judgment. Bremer made affidavit that John Moyse had sold him the corn, and that it had been delivered, and that, about the time he was garnished, he received word to make the check for the purchase price of the corn to the appellant Andrew Moyse; and he asked that both John Moyse and Andrew Moyse be impleaded in this case; and the court ordered that the father and son, to wit, John Moyse and Andrew Moyse, be required to appear in said action and maintain or relinquish any claim they might have to said fund. Thereupon, Bremer paid the purchase price of the corn to the clerk of the court, and asked that the court determine the ownership of same. John Moyse appeared, and in his answer averred that his son, Andrew Moyse, was the owner of the corn, and entitled to the proceeds of the sale. Andrew Moyse appeared, and in his answer alleged that he was the owner, and entitled to the fund, and that he raised said corn as the tenant of his father, John Moyse. The appellee bank, in its reply to the answer of John Moyse, averred, in substance, that he was the owner of the corn, and that said John Moyse is attempting to defeat appellee's claim and perpetrate a fraud upon his creditors by attempting to make it appear that the corn belonged to Andrew Moyse. In its reply to the answer of Andrew Moyse, the appellee denied the averments of said answer, and alleged that John Moyse and Andrew Moyse conspired together to defeat appellee, and that they are attempting to conceal the true ownership of said corn and keep the proceeds thereof from being subjected to appellee's judgment against John Moyse. Upon the issues thus joined, trial was had, and the court rendered decree, finding that the corn in question was the property of John Moyse, and subjected the purchase price thereof, in the amount as aforesaid, to the payment of appellee's judgment, and rendered judgment against the defendants John Moyse and Andrew Moyse for the costs. From this decretal action by the trial court the defendant Andrew Moyse has appealed. The question in the case is, Was John Moyse or his son, Andrew Moyse, the owner of the corn which was sold to Hans Page 336 Bremer? The determination of this question of fact must depend upon the evidence in the case. John Moyse was the owner of a farm consisting of about 64 acres, upon which the corn was raised. It appears that, on July 9, 1926, the time of the trial of the case in which judgment for $8,828.21 was obtained against him, he testified that, the spring before, by written lease, he rented the farm to his son for that year, for "right around $600," which rent had not been paid. In the trial of the instant case, the appellee called John Moyse as a witness, and he was asked as to whether he did not testify at the former trial as hereinbefore set out, and he either equivocated or denied that he had so testified, and he gave testimony to the effect that there was an oral lease between him and his son, and that the rental was $450; that, on July 10, 1926, he received from his son $426.50, being a check from the Frank E. Scott Commission Company, payable to and indorsed by the son; and that the remainder of the rent was paid in cash. The appellee then called the court reporter who acted as such at the time of the former trial, who gave testimony relative to his statements which were inconsistent with his statements at the trial of the instant case. The appellant objected to the testimony of the court reporter, upon the ground that it was incompetent, irrelevant, and immaterial, and, if offered for the purpose of impeachment, as being an attempt to impeach his own witness. In 40 Cyc. 2561, it is said: "A party who calls his adversary as a witness is not allowed to impeach him, but he may draw any inference from his testimony which the facts stated by the witness seem to justify." In Harvey v. Phillips, 193 Iowa 231, we said: "By placing the defendants on the stand as witnesses, to a certain extent he [the plaintiff] vouches for their truthfulness, and he may not impeach them, although, of course, he may contradict, and may rely upon the proper inferences to be drawn from the circumstances testified to by them." As supporting the same principle, see Farmers L. Tr. Co. v.Scheetz, 196 Iowa 692; Wilson v. Prettyman, 195 Iowa 598;Bihlmeier v. Budzine, 201 Iowa 398. In the latter case, we said: "He [Budzine] testifies squarely that it was all his mother's money and property at all times. The appellee, having tendered him to the court as a witness, vouched for his competency, Page 337 credibility, and truthfulness. Of course, appellee was entitled to the benefit of any conflict, inconsistency, or incongruity which might be found in Budzine's testimony, and he was not precluded from calling other witnesses to contradict Budzine, if said witnesses could be produced * ." We are of the opinion that the testimony of the court reporter was only impeaching in character, and was an attempt on the part of the plaintiff to impeach the testimony of the witness called by himself, which is not allowable, under the rule of the law announced in the foregoing cases. However, the appellee is not bound by the testimony of any one witness. The testimony of John Moyse is contradicted by other testimony and by the facts and circumstances shown upon the trial. Some of the other evidence will be referred to. The $426.50 check claimed by the defendants Moyse to have been given in payment of rent represented the selling price of hogs. Andrew Moyse was the payee therein, and it bears his indorsement in blank upon the back. It does not bear the indorsement of the defendant John Moyse. It also bears the indorsement of D.G. Manley, who, John Moyse claims, took the check to the bank, and got the money, and delivered the cash to him. The check was paid through the Sioux City clearing house on July 14, 1926. Andrew Moyse was 23 years of age, unmarried, and residing with his father as a member of his family. If John Moyse rented the farm to his son, Andrew knew about it, and the corn was Andrew's, and was not subject to sale by the father. Hans Bremer testified that, about the 16th or 18th of December, he had a talk with John Moyse about buying some corn at his elevator; that John Moyse said he wanted to sell some corn, about 1,200 bushels; and that he bought it. On July 12, 1926, immediately after the former trial wherein the aforesaid judgment was rendered, at which trial John Moyse gave testimony as testified to by the court reporter, an execution was issued on the judgment, and placed in the hands of the sheriff, and that officer was directed, in writing, to garnish Andrew Moyse and take his answers; and J.D. Beardsley, a student in the State University of Iowa at the time of the last trial, but a deputy sheriff at the time of the issuance of the execution, proceeded, as directed, to serve the writ and garnish Andrew Moyse. At the time when Beardsley called upon Andrew Page 338 Moyse, he found Andrew plowing corn for one of the neighbors. Beardsley testified as follows: "There was no one with him. A.G. Hess took me out there in his car when I served the garnishment, and I explained fully the nature of the questions and answers, and asked him if he owed his father any rent for the land he was renting from him. A.G. Hess told me also to inquire if he was renting any land from John Moyse, and if so, how much; and I asked him, and he said he was not renting, but only working the place for his father. I asked him if there was any agreement regarding rent or lease in any form, and he answered that there was not. I made it known to him that I referred to the home place. He also said the certain horses, cattle, and hogs referred to in this notice of garnishment was the property of his father, and in his possession while he was working the land for his father." This conversation is denied by Andrew Moyse, as a witness for himself. He testified that he told Beardsley that he did not have any written lease, but that there was an agreement to pay cash rent, and that he did not tell Beardsley that he was just working for his father. While there is other testimony, yet to set it out more fully would unduly extend the length of this opinion. The trial court found for the appellee. We are disposed to agree with that finding. We recognize the rule of law that testimony of oral statements or admissions (such as testified to by the former deputy sheriff) should be received with great caution. The value of such testimony depends much upon the age, intelligence, and honesty of the witness and the circumstances under which they were made, and all other facts and circumstances appearing from the evidence that throw light upon its weight and credibility. The former deputy sheriff appears to be intelligent, and there is no inducement for him to misrepresent; and the circumstances under which the declarations were made were such as to impress the same upon his memory. The testimony of Beardsley was introduced by appellee. If Andrew Moyse had rented the farm from John Moyse prior to this conversation, he knew it at that time, and yet Beardsley unreservedly testifies as aforesaid. Moreover, if John Moyse had rented the farm to Andrew Moyse in the spring of 1926, he had no corn raised on that farm to sell, at the time when he *Page 339 sold the corn to Bremer in December, 1926. Bremer and Beardsley are disinterested witnesses. From a careful perusal of the entire record, and after consideration of only the competent testimony, we are abidingly satisfied that the $785.40 in the hands of the clerk is the sale price of corn belonging to the defendant John Moyse. Therefore, the decree of the trial court is correct, and it is affirmed. —Affirmed. STEVENS, C.J., and De GRAFF, ALBERT, and MORLING, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431826/	On January 8, 1930, Mrs. Claiborne, by written contract, listed her property with the plaintiff-company for sale. The contract constituted an exclusive listing for the period of six months. The plaintiff made persistent effort to sell the property for a period of about five months, whereupon a new contract was entered into between the parties, which partially cancelled the first contract. This was on June 2, 1930. What little conflict there is in the evidence must be solved in support of the findings of the lower court. Only one question of dispute is presented for our consideration. That question turns upon the interpretation to be put upon the final written Page 1089 contract between the parties. The first contract appears in the record as Exhibit A, and the second as Exhibit B. We quote from each all that is material to the question before us. In our quotation we italicize the particular portion of the contract which calls for interpretation by us: "Exhibit A. "The Owner Agrees: (1) To, and by this agreement does, give said Broker for a period of six months the sole and exclusive right to find a purchaser for or sell the following described Real Estate: 2900 Rutland for $6,000.00, payable $1,000.00 cash and the balance of $5,000.00 at the rate of $50.00 per month, with interest included at 6%, or any other price and terms acceptable to the owner. Said cash payment shall be deposited with the listing Broker pending the furnishing and examination of a merchantable abstract as per this contract. Purchaser shall have a reasonable length of time for the examination of said abstract. "(2) To pay said broker 5% commission on the first ten thousand dollars of the sale price and 2 1/2% on the balance, (a) if said broker finds a buyer who shall be ready, willing and able to purchase during said period upon the price and terms above stated, or at any other price and terms that may be agreed upon, or (b) if said property is sold by the Owner, or his authorizedagent, or any other person or persons during said period, or (c) if said property is sold by the Owner within six months thereafter to any person, firm or corporation with whom said Broker negotiated with respect to a sale during the term hereof; provided, that owner has been notified in writing by agent of names of said prospects before expiration of listing." "Exhibit B. "In consideration of the cancellation of the listing given Merle O. Milligan Company, Jan. 8th, 1930, for the sale of property located at 2900 Rutland and the relinquishment or waiver of all claims of said company against me by virtue of said listing, I or we do hereby agree that if said property is sold bymyself or my authorized agent or any other person or personsduring the period set forth in the listing contract, or if said property is sold within six months after the expiration of said contract to any person, firm or corporation with whom said Page 1090 broker negotiated with respect to a sale during the term of said contract, provided that owner has been notified in writing by agent of name of said prospect before expiration of listing, the commission set forth in listing contract shall be due and payable, at once." It will be noted that Exhibit A contained three alternatives, or contingencies, which would render the broker entitled to his commission. They are designated in the contract as (a), (b), and (c). It will be noted further that by the provisions of the later contract, Exhibit B, that proviso designated as (a), and contained in the original contract of January 8, is wholly eliminated, and the defendant is thereby wholly discharged from the obligation to accept a customer ready and able to buy. Those provisos in Exhibit A designated as (b) and (c), however, are expressly reserved to the broker. By the proviso (b) the broker became entitled to his commission if and when the owner herself should sell the property within the listing period. She did sell the property within the listing period, and on June 27, 1930. This necessarily fixed her liability. The contention for the defendant is that the broker was entitled to his commission only on condition specified in (c) of Exhibit A, as preserved in Exhibit B. None of these conditions were complied with. Clearly these conditions have no reference to the proviso (b). These simply provided for a commission for the broker if a sale be made to any of the broker's customers within six months after the listing period. In such event it would be the duty of the broker, on or before the expiration of the listing period to furnish the defendant with the names of prospective purchasers whom he claimed to have interviewed. This condition does not, and can not, have any reference to an actual sale by the owner herselfbefore the expiration of the listing period. By its terms the very condition is excluded from application to paragraph (b). The trial court properly construed the contracts. We are not unmindful that the case has its hardship. The property was encumbered. The price at which Mrs. Claiborne sold her property was only $200 in excess of the encumbrances. The commission awarded against her is $170. That was a hardship, however, which she would have encountered in *Page 1091 any event, even if a sale had been made by the broker within the listing period. It was her privilege to have protected herself at the time of entering into the contract. She contracted for the hardship, and the arm of the court is too short to relieve her from her contract. The judgment below must accordingly be affirmed. WAGNER, C.J., and STEVENS, FAVILLE, De GRAFF, MORLING, and KINDIG, JJ., concur.	01-03-2023	07-05-2016

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