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In August, 1896, the defendants M. P. Miller and Charles R. Daugherty were engaged as partners under the name of Miller Daugherty, in carrying on the mercantile business at Washington and Waterloo, in this state. They had a stock of merchandise of considerable size at each place. Each partner assisted somewhat in the supervision of the business at each place, but Miller resided at Washington, and exercised chief control of the stock there, while Daugherty, in like manner managed the stock at Waterloo, where he resided. On the 27th day of August, the firm was financially embarrassed, and Daugherty was at Dwight, Ill., for medical treatment. Miller then being at Washington, and acting in the name of the firm, executed to each of his co-defendants who appear in this court, a mortgage on the stock of merchandise at Waterloo, the mortgage to Foreman also including the book accounts of the firm and the fixtures used in its business, and to the Washington county Savings Bank a mortgage on the stock of goods, fixtures, and other property of the firm at Washington, including book accounts and notes. On the same day Miller executed in the name of the firm a general assignment for the benefit of its creditors. The instruments specified were executed in the afternoon and early part of the evening of the day mentioned and a. few minutes before 8 o'clock the Waterloo mortgages were given by Miller to an employe of the firm named Frank L. McKane, with instructions to take them to Waterloo. McKane went to Waterloo, and early the next morning delivered the mortgage intended for Mrs. T. S. Daugherty to her, *Page 690
and went with her to the court house, where it was filed for record. He then went to the place of business of the Commercial National Bank, and delivered to it the mortgage executed in its favor, and the mortgage was at once filed for record. A short time thereafter he filed for record the Foreman mortgage, and a few hours later filed the assignment for record. On the day these mortgages were filed for record, Miller executed a second general assignment for the firm, which was recorded in Washington county. Within a short time numerous creditors of the firm, including the appellants, commenced actions against it, aided by attachments, and in process of time judgments were duly rendered on their claims. This action was commenced by those creditors, and they asked that the mortgages and the general assignments be set aside; that the priority of liens and garnishments which were the result of the attachments be ascertained and determined, and that property of the firm in the hands of the sheriff and of a receiver, who had been appointed for the property of the firm, be ordered paid to the several parties in interest in the order of the priority of their claims. Answers were filed by various defendants, and upon hearing the evidence the district court found and adjudged that the three mortgages on the property in Waterloo were valid, and created liens superior to any other interest in the property represented in the action, and provided for the payment of the claims which the mortgages secured from funds in the hands of the receiver. The district court also found and adjudged that the two assignments were ratified by Daugherty on the 4th day of September, 1896, and thereby became valid from the date of their delivery, subject to the intervening rights of attaching creditors. The decree also contained provisions in regard to the rights of various parties to the action, which are not involved in this appeal, and will not be considered. We are only required to determine whether each of the three mortgages on the Waterloo property is valid as against the appellants, and the liability of the assignee to *Page 691
account to them for certain money and accounts in his hands. It is claimed that the mortgages are void, because parts of a general assignment of the property of the firm with preferences; that the debts which the mortgages were delivered to secure were contracted in good faith, and are valid, is clearly shown, and does not seem to be questioned.
I. The first mortgage in the order of delivery is that of Mrs. Daugherty. She is the mother of Charles R. Daugherty, and of the wife of M. P. Miller. She had some conversation with Miller a few days before the mortgage to her was executed, in which she was told that the firm was somewhat embarrassed, but that it hoped to avoid trouble. Her notes were at that time in the possession of her daughter at Washington, who was instructed to protect her mother in case of an emergency. The first mortgage given by Miller was the one in favor of the Washington County Savings Bank. After that had been executed, he told his wife of it, and she insisted that he should give her mother a mortgage, and she obtained her mother's notes, and handed them to him. He told her he would give the mortgage desired, and at once went to the office of an attorney, and executed the one to Mrs. Daugherty, in question. There is some confusion in the testimony in regard to what was said by McKane to Mrs. Daugherty the morning of August 28th, when the mortgage was delivered to her, but we are of the opinion that a preponderance of the evidence shows that she did not know that an assignment had been made or was contemplated when she accepted the mortgage. We are of the opinion, also, that she should not be charged with notice of the assignment from the knowledge she possessed of the embarrassment of the firm, and its purposes. Her daughter did not know of the proposed assignment when she secured from her husband the promise to execute the mortgage. In fact, at the time the husband had no intention of executing 2 the assignment. The burden was on the plaintiffs to show that the firm intended to make a general *Page 692
assignment when the mortgage was executed, and also that the mortgagee had notice of the intent. Roberts v. Press, 97 Iowa, 475; Stove Co., v.Shedd, 82 Iowa, 540. They have failed to make the showing required. It is well settled in this state that one partner of a firm does not have authority, by virtue of the partnership relation alone, to make a general assignment of the property of the firm for the benefit of creditors, if his co-partner can easily be, but is not, consulted, and his assent to the proposed assignment obtained. Loeb v. Pierpoint,58 Iowa, 469; Hunter v. Waynick, 67 Iowa, 555. See, also, Mayer v.Bernstein, 69 Miss. 17 (12 South. Rep. 257); 3 Am. Eng. Enc. Law (2d ed.), 27. In Hunter v. Waynick the partner whose assent to the sale of the partnership property was not obtained resided seventy-five miles from the place where the partnership business was carried on, and where the sale was made, but there was a daily mail by railroad, and a telegraph line between the two places, and no sufficient reason for not communicating with the absent partner was shown. The sale was held to be invalid. In this case the means of communication between Miller and his absent partner were good and sufficient, but resort to them was not had, although Daugherty was in condition to be consulted. On the 4th day of September, Daugherty sent to Miller a telegram as follows: "I confirm assignment from the first." The district court rightly held that the assignment was not valid until ratified by Daugherty, and that the ratification did not affect the rights which had accrued before it was made. It was necessary, in order to defeat the mortgage to Mrs. Daugherty, to show not only that the firm intended to make a fraudulent assignment, but also that she knew of that intent when she accepted the mortgage. Groetzinger v. Wyman, 105 Iowa, 574, 587; Bank v.Garretson, 107 Iowa, 196; Manton v. J. F. Seiberling Co.107 Iowa, 534. The mortgages, considered separately or together, do not constitute a general assignment, for the reason that they do not include all the property of the *Page 693
partnership. Miller had power to execute a chattel mortgage in the name of the firm to secure the firm debts. Lead Co. v. Haas, 73 Iowa, 399;Letts, Fletcher Co. v. McMasters, 83 Iowa, 449. We conclude that the mortgage to Mrs. Daugherty is valid as against the claims of the appellants.
II. Much of what we have said applies to the mortgages in favor of the Commercial National Bank and Foreman. It is only necessary to say further in regard to the mortgage to the bank that it was accepted in good faith, without any knowledge on the part of the bank of the purpose of the firm to make a general assignment, and is valid. The evidence in regard to the Foreman mortgage is not quite so clear and satisfactory. It appears that he resides in Washington, but at the time the mortgage was executed he was absent from the town. The mortgage was sent to Waterloo before he had any knowledge of it. When he loaned to the firm the money to secure which the mortgage was given, Miller agreed to protect him in case of trouble. He returned to Washington the evening of August 27th, and there learned of the mortgage from a relative. He saw Miller at about half past 7 o'clock the next morning, and talked about the debt and mortgage; Miller telling him that the mortgage had been given him for security. It is not clear when Foreman first learned of the assignment, but it is his recollection that he heard nothing of it until his own matters had been talked over. He does not state when he accepted the mortgage, but that it was accepted by him is shown, and in view of the fact that he had asked security, and that the mortgage was given pursuant to the agreement with Miller when the money was loaned, it will be presumed that he accepted it when informed of it. The evidence tends to show that such was the case, and there is nothing to show that it was not then accepted. At that time the assignee had not accepted the trust created by the assignment. As the burden was on the plaintiffs to show that the mortgage was invalid before they are entitled to relief on account of it, they must fail. *Page 694
III. It appears that the assignee for the benefit of creditors took possession of notes and book accounts belonging to the firm; that while he so held them, and before the assignment was ratified by Daugherty, he was garnished under the attachments issued at the suit of the plaintiffs, and that the money and collectible accounts in his hands at the time of the trial amounted to about one thousand two hundred dollars. The appellants contend that the amount stated should be held subject to their garnishment. The appellees do not respond to the claim thus made. There appear to be some conflicting provisions in the decree in regard to the payments to be made by the assignee, or one which is obscure, but the fifth paragraph provides that the assignee shall retain all money which he collected from book accounts and all uncollected accounts. If it be true that this provision is not modified by the sixth paragraph of the decree, — and we are inclined to think it is not, and so hold, — then the effect of the decree is to except from the attachment of the appellants, accounts and money which was collected from accounts, which were in the hands of the assignee when garnished, and before the assignment was ratified. That provision is erronecus. By virtue of the garnishment the appellants acquired claims against the garnishee, and a right to an accounting by him which was superior to the right of the assignee acquired by virtue of the assignment. McDonald v.Creager, 96 Iowa, 659; Sperry v. Gallaher, 77 Iowa, 107; Dahlman v.Greenwood, 99 Wis. 163 (74 N. W. Rep. 215). This case is unlike that ofBooth v. Gish, 75 Iowa, 451, in which it was held that the garnishment of the holder of property which was subject to chattel mortgages did not confer any right against the garnishee. But in that case the property was rightfully taken from the possession of the garnishees by virtue of the chattel mortgages, and the garnishees were powerless to prevent it. No lien was obtained under the garnishment on the mortgaged property, and the garnishees were correctly held not to be accountable for property rightly taken *Page 695
from them under a superior title. In this case the book accounts in question appear to have been mortgaged, but were not required to pay the mortgage debt, and therefore their holder, the assignee, was subject to garnishment. It follows from the conclusions stated that the decree of the district court, so far as it determines the rights of Mrs. Daugherty, the Commercial National Bank and Foreman, is AFFIRMED; and so far as it exempts the book account and money collected from book accounts in the hands of the assignee from the claim of the appellants is REVERSED.
GRANGER, J., not sitting.
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On January 23, 1922, Albert Sexauer and others, as plaintiffs, filed a petition in the office of the clerk of the district court of Polk County, praying the partition of certain 1. PARTITION: real property. On February 2, 1923, decree action for fixing and establishing the interests of the partition: parties in the real property, and further proceedings decreeing that the same could not be partitioned and relief: in kind, and ordering the sale of the property, distribu- was entered. Referees appointed to make the sale tion: filed their final report May 16, 1927, which was vacating followed by the filing of a supplemental final order. report on August 25, 1927. The report and *Page 1306
supplemental report of the referees, which showed distribution of the proceeds of the sale, were approved by the court, and they were discharged and their bond exonerated.
Albert Sexauer died intestate in Dallas County, January 19, 1926. C. Fred Carlson was appointed and qualified as administrator of his estate, February 17, 1926. The application to vacate and set aside the approval of the order of distribution to Albert Sexauer was filed by the administrator June 8, 1928, in the partition action.
It is alleged in the application that the amount due the estate of Albert Sexauer as his share of the proceeds of the sale of the real property was never paid to the administrator of his estate, but that same was paid to and received by Emma Sexauer, his surviving widow. The application further recites that the same was filed immediately after the applicant learned of the interest of his decedent in the funds in the hands of the referees. Issues were joined upon the application by the referees, who admitted the sale of the real estate, the receipt of the purchase price, and that Albert Sexauer was entitled to receive therefrom $1,486.68, and averred that a check drawn payable to the estate of Albert Sexauer was delivered by the referees to the attorney for the plaintiff in the partition action, and that same was paid to said attorney or to Emma Sexauer by the bank on which the same was drawn. The check offered in evidence shows indorsement on the back, "Estate of Albert Sexauer," by Emma Sexauer and by the attorney for the plaintiff in the partition action. The administrator of the Sexauer estate was not made a party by substitution or otherwise in the partition suit. Administration of his estate is being had in Dallas County. Both the referees and the attorney to whom the check was delivered knew of the decease of Albert Sexauer.
The point is made in argument in this court that the application to set aside the final and 2. APPEAL AND supplemental reports of the referees is not ERROR: timely, either as a motion or as an original review: action to set aside a judgment. So far as the scope and record shows, the form of the action was extent: attacked in no way, nor was any question raised questions as to whether it was timely. The application was first raised filed within one year, but not at the term at on appeal. which the order was entered, and none of the statutory grounds in an *Page 1307
action to vacate or modify a judgment are stated in the application. The relief sought is, however, clearly stated. Although the case is triable de novo in this court, review must be of the record as it was presented to the trial court.
It is also alleged by appellee that the bank which paid the check upon an improper and inadequate indorsement is liable to the administrator for the amount of such check. Whether this is true or not, it constitutes no defense to this proceeding, and is quite immaterial at this point.
It is also argued by counsel for appellee that, as the attorney to whom the check was delivered was the attorney of record in the partition action for Albert Sexauer, his authority to receive payment will be presumed. If Albert Sexauer were 3. ATTORNEY living, this contention would be sound; but AND CLIENT: surely it cannot be presumed that the attorney retainer and who brought the action for him had, by reason of authority: that employment, authority to represent the non-presump- administrator of his estate. There is no claim tion as to in the record that the attorney pretended to authority. have such authority, and he frankly admitted upon the trial that he not only did not have authority to represent the administrator, but that he did not know who that officer was.
The real and vital question in the case is: Was it sufficient to relieve the appellees of liability that the check was drawn payable to the estate of Albert Sexauer? Manifestly, there was no such person. The sole representative of the 4. PARTITION: estate of the deceased was and is the action for administrator. He, or his agent, was alone partition: entitled to receive the check. No doubt, the proceedings transaction throughout was in absolute good and relief: faith. There is nothing in the record to distribu- indicate the contrary, but it was the duty of tion: the referees to make distribution only to the improper parties entitled thereto. If they chose to form of employ a third party as their agent or check. instrumentality to effectuate distribution, they are bound for the faithful performance of his obligation. The check was not drawn payable to the administrator of the estate of Albert Sexauer, nor does it appear that anyone connected with the transaction knew who he was. A receipt was given to appellees for the check in question. The record does not disclose the exact form of the signature attached thereto. *Page 1308
We assume from the testimony that it was signed only by the attorney to whom it was delivered. The duty of appellees to pay the amount due the estate of Albert Sexauer to the person entitled thereto was as absolute as it was to pay it to living distributees. This is elementary, and needs no citation of authority. The record shows that the proceeds were turned over to Emma Sexauer, who, if all the claims against the estate of her deceased husband and the costs of administration were paid, would be entitled thereto. No other persons have any interest therein. The record shows that there are unpaid claims, so that the right of appellant to claim the fund is not a mere technical one, but it is his duty to recover the same, if possible, to the extent that same may be necessary to pay the claims of creditors and the costs of administration. The application to vacate and set aside the order of approval of distribution to the extent indicated should have been sustained.
The judgment must be reversed, and the order of distribution set aside. — Modified and remanded.
All the justices concur.
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On the 25th day of February, 1925, John Pauley and Elizabeth Pauley, his wife, executed and delivered to the Panama Savings Bank, of Panama, Iowa, a chattel mortgage covering live stock, a portion of the description being as follows:
"24 brood sows, average weight, about 250 lbs. each, mixed colors; about 40 head of stock hogs; and 15 fall pigs. * * *" *Page 451
"All of the above property owned by me and in my possession on the southeast quarter of Section 26, Township 80, Range 41, Harrison County, Iowa."
It is clearly proven that Pauley occupied and controlled but one farm in Harrison County, Iowa, during all of the time in controversy.
This mortgage was properly acknowledged and filed for record in Harrison County, Iowa, on the 15th day of April, 1925. The mortgage was given to secure the payment of two promissory notes, of even date with the mortgage, one for $1,800 and the other for $1,000, both payable in one year from date, with interest at 8 per cent, and payable to the Panama Savings Bank of Panama, Iowa. It is claimed that, between the 15th day of April, 1925, and the 15th day of February, 1926, the "defendant S.R. DeCou wrongfully and unlawfully appropriated to his own use 17 head of the hogs aforesaid, of the value of $600; that the defendant had knowledge and notice of the lien held by the plaintiff upon said property, and his act in such converting said hogs constituted a conversion thereof, wherein and whereby the plaintiff has suffered and sustained damages to the extent of $600, by reason of the wrongful appropriation thereof by said defendant."
Having in mind that the mortgage bears date February 25, 1925, the record shows, by stipulation, that, between April 17, 1925, and October 10, 1925, Pauley sold to the defendant 37 hogs, averaging approximately 200 pounds apiece, for a total of $765.06. The mortgagor, Pauley, was called as a witness, and he testified on this particular subject as follows:
"I sold the hogs at one place after April 15, 1925. I sold Nick Shafer four brood sows. I didn't sell any brood sows to anybody except Nick Shafer after April 15th, — I don't think so. We butchered two sows, and lost three of them pigging; and I don't remember where the others did go. * * *
"Q. Now, what were the weights of the hogs in February, 1925, — the brood sows? A. 250 lbs. Q. Well, now, you sold brood sows to Shafer, and the balance of the hogs to DeCou? A. Yes, sir. After April 15th, I don't think I sold hogs of any kind to any person except DeCou. All of the hogs that were sold by me were the four brood sows to Shafer, and the balance to DeCou; and that is right. Q. Well, now, you do know that the *Page 452
only person you sold hogs to during the year were Shafer, and the checks that these boys brought back made out by DeCou? A. Yes, sir."
While there is some confusion and apparent contradiction in the record on the subject, we think it fairly appears that the mortgagor had less than 40 stock hogs, and they were all (37 of them) sold to the defendant.
Mr. Welch, who was trustee in bankruptcy of the John Pauley bankrupt estate, and who took office in February, 1926, testified that, when he took possession, there were on the Pauley place only 25 pigs, "mostly all fall pigs, — fall or late summer of 1925." From this record it is quite evident that the hogs delivered to the defendant between April 17, 1925, and October 10, 1925, were covered by the said mortgage.
I. The first question which confronts us is whether said mortgage was notice to the defendant of the lien of the plaintiff on the hogs. It will be noted that the mortgage contains this language:
"All of the above property owned by me and in my possession on the southeast quarter, Section 26, Township 80, Range 41, Harrison County, Iowa."
It appears in the record that Pauley had but one place of business, — one place where he kept hogs in Harrison County, Iowa, — during all of the time in controversy. It is apparent that, if the language above quoted, specifying where the property was kept by Pauley in his possession, together with the language hereinbefore quoted concerning the number and kind of hogs, is not a sufficient description, as required by law, then the mortgage was not notice.
It will be noted that, while the mortgage specifies where the property is kept and owned by the mortgagor, it fails entirely to specify that "about 40 stock hogs" are all the hogs of that type or class owned and kept by the mortgagor on the particular farm described.
We think the lower court correctly held that this mortgage was not sufficient to impart constructive notice to third parties. The requirement has been variously stated by this court:
"The description of the property as contained in the mortgage *Page 453
must direct the mind to evidence whereby the precise thing conveyed may be ascertained, and if thereby absolute certainty may be attained, the instrument is valid; otherwise it is void as to third parties for uncertainty." Ormsby Bros. Co. v. Nolan,69 Iowa 130.
This has been approved in Westinghouse Co. v. McGrath, 131 Iowa 226.
There can be no absolute certainty by the mere statement "about 40 stock hogs," without the declaration that there are mortgaged all of that class of hogs owned by the mortgagor and kept by him at a certain definite place.
It is unnecessary to determine other questions raised in the case.
For the reasons hereinbefore stated, the case must be, and is, — Affirmed.
ALBERT, C.J., and EVANS, FAVILLE, and KINDIG, JJ., concur.
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[1] Appellants, both married women, are real-estate brokers who were associated together in the matter in controversy. Appellees Gaar and wife own and operate a typewriter business and appellee Shive is another real-estate broker. All live in Des Moines. On May 15, 1939, appellee K.W. Gaar acquired title to the Eddy Apartments in Des Moines. Appellants claim they were employed by the Gaars to act as their agents in the purchase of the property but that the three appellees conspired together wrongfully to deprive them of their commission. At the close of appellants' evidence the trial court directed a verdict against them, apparently on the theory that the evidence was insufficient to sustain their claim. We will briefly review the evidence offered by appellants. Appellees offered no testimony. Appellants are entitled to have the evidence considered in the light most favorable to them.
Trustees appointed by the Polk County District Court had been ordered to sell the Eddy Apartments, which were "in receivership." Accordingly the trustees listed the property for sale with several real-estate agents. Ninety thousand dollars was the original asking price. About March 24, 1939, Risser, the *Page 40
active trustee, told appellants the property was to be sold to the highest bidder and suggested they try to find a purchaser. Appellants then made an inspection of the apartment building. They then contacted Mrs. Gaar at the Gaars' place of business in an attempt to interest them in the purchase.
Mrs. Gaar manifested considerable interest and asked appellants to get full information on the income and expense of the apartment. Appellants obtained from Risser, the trustee, a statement of income and cost of operation and made an appointment with him for Mr. Gaar to look over the books in Risser's office. There is evidence that Gaar conferred with Risser pursuant to this appointment. Appellants showed the statement of income and expenses to Mrs. Gaar, who told them again that she and her husband were much interested. "Believe me, we are hot prospects," were her words.
The question of financing was discussed. Mrs. Gaar instructed appellants to make every effort to get a loan on the apartment. They wanted to borrow as much as $60,000 if they could. Accordingly, appellants contacted six different loan concerns. Mr. Hunter told appellants that he thought his company could loan Mr. Gaar $52,000 on the apartment and asked them to have Gaar see him at an appointed time. Appellants reported to Mrs. Gaar the result of their interview with Hunter. There is evidence that Mr. Gaar conferred with Hunter pursuant to the arrangements made with appellants.
In the course of one of the above conversations between appellants and Mrs. Gaar, it developed that appellee Shive, a real-estate broker, had done some business for the Gaars. They had previously listed for sale with Shive a property of their own known as the Colonial Apartments. It also appears that the trustees had listed the Eddy Apartments for sale with Shive, among others, and that he had talked to the Gaars regarding the Eddy property before appellants first contacted them.
When Mrs. Gaar informed appellants of their previous relations with Shive, appellants offered to withdraw if the Gaars preferred to have Shive represent them in attempting to purchase the Eddy Apartments. Mrs. Gaar then said she would talk to her husband regarding the matter and report to appellants. *Page 41
That evening Mrs. Gaar told one of the appellants over the phone, "My husband is sitting here now, * * * and he said for you to go ahead, Shive has known all along that we wanted the Eddy Apartments and he has not tried to get them for us, * * * he has had his chance."
In the fore part of April 1939, one Gulick had made an offer to buy the property from the trustees for $75,000, provided $2,500 of that amount would be paid to one Nielson, a real-estate agent, who had interested Gulick. Upon learning of this offer, appellants told Mrs. Gaar about it and offered to cut their commission to $2,000. "Mrs. Gaar said she thought that would be all right." Appellant Mrs. Shannon testified:
"We told them [Gaars] we would take $2,000 commission, which would make them a better offer, but it would have to come fromthem as the court paid no commission. * * * They said it wasagreeable. They thought it was nice of us to cut our commission to help make the deal." (Italics supplied.)
At about this time, appellants apparently were fearful that the Gaars would purchase the property through Shive, or in some other way attempt to deprive them of their commission. They called upon Risser and at his suggestion saw his attorney, told them of their dealings with the Gaars, and asked that they be protected on their commission. The Gaars learned of this move of appellants and professed that it offended them. On April 10th, Mr. and Mrs. Gaar told appellants they had "made a mess of this" by seeing the attorney. Gaar asked appellants "to withdraw from this * * * in favor of Shive," and offered them as an inducement an exclusive listing on Gaar's Colonial Apartments if they would "withdraw." This appellants refused to do. Gaar then told appellants he was through with them and that he would "have those Eddy Apartments" without going through them, intimating that he would deal through Shive. Appellants then "dropped out of the picture."
Two days later a hearing was had before the court on the sale of the apartments. Gulick, through Nielson, offered $75,000 with a deduction of a commission of $2,500. Shive made a tentative offer contingent upon obtaining a loan. The hearing was postponed for two days when, on April 14th, Shive made *Page 42
an offer of $75,500 net to the trustees without the deduction of any commission. The offer was accepted and the sale to Shive was approved. At this hearing Shive testified under oath he was purchasing the property solely for himself. On May 15, 1939, a deed from the trustees to Shive, a deed from Shive to Gaar, and a mortgage from the Gaars to Hunter's company for $52,600, were placed of record simultaneously. Shortly following the sale and before delivery of the conveyances Gaar had assumed at least partial control of the property. Notwithstanding Shive's testimony that he was purchasing for himself, there is ample evidence that Gaar was the real purchaser.
[2] I. Appellees argue that appellants wholly failed to show that Mrs. Gaar was the agent of her husband in dealing with appellants. We are not impressed with the argument. There was sufficient evidence that Mrs. Gaar purported to act not only for herself but for her husband; that Gaar had full knowledge of this, knew what transpired between appellants and his wife, and by clear implication, if not expressly, intended to and did ratify the acts of Mrs. Gaar. Furthermore, by taking the loan from Hunter, Gaar accepted the benefits of his wife's having acted in his behalf and he is in no position now to claim that her acts were unauthorized. Community Sav. Bk. v. Gaughen,228 Iowa 18, 34, 289 N.W. 727, and cases cited; Smith v. Miller,225 Iowa 241, 244, 280 N.W. 493; Edwards v. Foley, 187 Iowa 5, 11,173 N.W. 914.
[3] II. Appellants claim that appellees unlawfully conspired together to breach the contract between appellants and the Gaars and carried their plan into effect. As we hereafter point out, the claimed conspiracy is not essential to recovery. Nevertheless, we may observe that a combination between two or more persons to cause a breach of contract is generally recognized as an unlawful conspiracy. The right to the benefits of a contract is a property right which cannot be destroyed without entitling the injured party to damages. Kock v. Burgess,167 Iowa 727, 733, 149 N.W. 858; Holsinger v. Herring, 207 Iowa 1218,1225, 224 N.W. 766; Falstaff Brewing Corp. v. Iowa F. P. Co., 8 Cir., Neb., 112 F.2d 101, 108; 11 Am. Jur. 582, section 50; 15 C.J.S. 1020, section 13; annotation, 84 A.L.R. 43, 98. *Page 43
[4] Where, however, the parties are not liable severally for causing the breach of a contract, they are not liable jointly by reason of the allegation of conspiracy. McKay v. Barrick,207 Iowa 1091, 1094, 224 N.W. 84; 11 Am. Jur. 582, section 50; annotation, 84 A.L.R. 43, 99. Conspiracy does not give rise to a civil action unless something is done pursuant to it which, without the conspiracy, would create a right of action. Dickson v. Young, 202 Iowa 378, 380, 210 N.W. 452; Olmsted v. Maryland Cas. Co., 218 Iowa 997, 998, 253 N.W. 804, and cases cited; Community Sav. Bk. v. Gaughen, 228 Iowa 18, 27, 289 N.W. 727.
[5] III. The first essential of the cause of action here asserted is the existence of a valid contract. Annotation, 84 A.L.R. 43, 48. We think there was evidence from which the jury could find a contract between appellants and Mrs. Gaar for herself and her husband whereby appellants were to act as brokers for them in the purchase of this property and be paid a commission by them for their services. In the court below appellees practically conceded there was evidence of a contract between appellants and Mrs. Gaar. Appellees' principal contentions in the court below and in their written brief here are that appellants failed to prove a conspiracy and failed to prove a contract with Mr. Gaar or the authority of Mrs. Gaar to act for her husband. Their motion to direct alleged in substance:
"As to defendant K.W. Gaar, plaintiffs have failed to show any agreement on his part to pay any commission to plaintiffs and have failed to show that Mrs. Gaar was the agent of her husband. That plaintiffs have preferred to show only an agreement by Mrs.Gaar to plaintiffs to pay a commission for the purchase of the real estate."
In their written brief here appellees state the nature of their defense in these words:
"The defense interposed was that there was no conspiracy proven and that there was no contract established between Keith W. Gaar
and the appellants." (Italics supplied.)
[6] IV. We think appellants failed to make a case against appellee Shive and as to him the judgment must be affirmed. *Page 44
There is no evidence that Shive knew of the agreement between his codefendants and appellants nor that he acted with any fraudulent purpose to cause a breach thereof or to deprive appellants of their compensation. Appellants are nevertheless entitled to recover from Shive's codefendants if the evidence warrants. In a case of this kind recovery may be had against some of the parties charged. Faust v. Parker, 204 Iowa 297, 306, 213 N.W. 794, 215 N.W. 235; Dickson v. Young, 202 Iowa 378, 380, 210 N.W. 452; Heisler v. Heisler, 151 Iowa 503, 506, 131 N.W. 676; Young v. Gormley, 119 Iowa 546, 549, 93 N.W. 565; 11 Am. Jur. 588, section 59. See, also, Stambaugh v. Haffa, 217 Iowa 1161, 1166,253 N.W. 137.
[7] V. As to appellees Gaar, we think the evidence was sufficient to warrant a jury finding that they unlawfully and in bad faith conspired to deprive appellants of the benefits of their contract and carried that purpose into effect. It is, of course, elementary that a conspiracy may be proven by circumstantial evidence. It is frequently incapable of direct proof. Holsinger v. Herring, 207 Iowa 1218, 1226, 224 N.W. 766; 15 C.J.S. 1043, section 29; 11 Am. Jur. 585, section 56. Concert of action with a purpose to defraud makes a prima facie case. Stambaugh v. Haffa, 217 Iowa 1161, 1163, 253 N.W. 137.
[8] VI. Even if there were insufficient proof of a conspiracy between Mr. and Mrs. Gaar, appellants would still be entitled to have the case submitted to the jury upon proof that these appellees acted wrongfully and in bad faith to deprive appellants of the benefits of their contract. We think the evidence would warrant such a finding. The gist of an action such as this is not, as appellees assert, the conspiracy, but the wrong done and the resulting damage. It is well settled that an allegation of conspiracy may be regarded as surplusage and recovery had against all defendants shown to have participated in the wrongful act which results in damage. Dickson v. Young, 202 Iowa 378, 380,210 N.W. 452, and cases cited; Faust v. Parker, 204 Iowa 297, 306,213 N.W. 794, 215 N.W. 235; Dunshee v. Standard Oil Co., 152 Iowa 618,629, 132 N.W. 371, 36 L.R.A., N.S., 263; 15 C.J.S. 1040, 1041, section 27; ibid. 1037, section 25; ibid. 1031, section 21; 11 Am. Jur. 588, section 59. See Yocum v. Husted, 185 Iowa 119,125, 167 N.W. 663. *Page 45
[9] VII. Appellees contend that the Gaars had an absolute right to discharge appellants at any time before they became fully entitled to their commission. If these appellees did merely what they had a legal right to do, they are not liable to appellants, regardless of any claim of conspiracy. Olmsted v. Maryland Cas. Co., 218 Iowa 997, 1003, 253 N.W. 804; annotation, 84 A.L.R. 43, 63. However, it cannot be said as a matter of law that appellees had the absolute right to terminate the agency of appellants.
It is true that a principal who has not employed a broker for a specified period may ordinarily terminate the agency at any time before the broker's compensation is fully earned provided heacts in good faith. 8 Am. Jur. 1007, section 39; ibid. 1008, section 41; ibid. 1068, section 143; 12 C.J.S. 43, 45, section 16; annotation, 88 A.L.R. 711, 718. A principal cannot, however, during the course of negotiations instituted by the broker, which are approaching success, revoke his broker's authority as a mere device to escape payment of a commission. This is especially true where the time that has elapsed since the broker was employed has not been unreasonable, where a sale is completed soon after the broker's authority is revoked, and the principal benefits from the broker's services. The important and usually the controlling consideration in such cases is the good or bad faith of the principal as shown by the circumstances. Annotation, 88 A.L.R. 716, and cases cited 720, 721; 8 Am. Jur. 1066, section 141; ibid. 1068, 1069, section 143; 12 C.J.S. 150, 151, 152, section 66; II Restatement of Agency, 1069, 1070, section 454; Goodman v. Marcol, 261 N.Y. 188, 184 N.E. 755, 88 A.L.R. 714. See Benton v. Brown, 145 Iowa 604, 124 N.W. 815; Reynor v. Mackrill, 181 Iowa 210,216, 164 N.W. 335, 1 A.L.R. 523; Kellogg v. Rhodes, 231 Iowa 1340,4 N.W.2d 412, 415.
The evidence here would warrant a finding that appellants had not been employed for an unreasonable time and that the negotiations were nearing a successful completion. Mr. Gaar announced definitely to appellants on April 10th: "I will have those Eddy Apartments," and, "There are other ways of getting them besides going through you." A finding would be justified *Page 46
that appellants' efforts were the moving cause of Gaar's decision to purchase. The jury could find that on April 12th, Gaar submitted a bid through Shive; that another such bid was made and accepted on April 14th; that Gaar attempted to conceal the fact that he was the purchaser by having Shive act as a "straw man." The purchase price was about the figure appellants and Mrs. Gaar had talked of. Gaar availed himself of the offer of Hunter made through appellants to loan $52,000 on the premises.
The only excuse offered by the Gaars for asking appellants "to withdraw" was that they had interviewed Risser and his attorney in an attempt to protect their right to a commission. It was not improper for appellants to see the trustee and his attorney. The finding is warranted that the Gaars did the very thing that appellants feared — attempted wrongfully to deprive them of their commission; that the excuse given by Mr. and Mrs. Gaar for revoking appellants' authority was a mere device to avoid paying a commission.
As to appellee Shive, the judgment in his favor is affirmed. As to appellees Gaar, the judgment is reversed. — Affirmed in part; reversed in part.
WENNERSTRUM, C.J., and STIGER, SAGER, BLISS, OLIVER, HALE, and MILLER, JJ., concur.
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https://www.courtlistener.com/api/rest/v3/opinions/3432698/
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The defendant Ora Krapfel was the owner of a certain tract of land in Appanoose County during all of the time of the controversy herein. W.R. Krapfel was her husband. A.W. Judy, the other defendant, had a lease with the owner of the land, giving him certain rights of opening and conducting a coal mine on the property in controversy. At that time, Judy had met with financial reverses, and had nothing with which to open and conduct said coal mine, and he made a *Page 648
contract with Krapfel, the husband, to advance him sufficient money to open this coal mine. This was done by Krapfel from time to time, and the advances amounted to between $15,000 and $20,000. He also made a contract with plaintiff and several other parties, who were practical coal miners, the substance of which was that they were to put down a shaft and open the mine. Plaintiff and the other miners were to receive the going wage, as fixed by the agreement between the coal operators and the miners' union, but each miner was to be paid $2.00 a day in cash, and the surplus of that day's wage over and above the $2.00 was to apply on three shares of stock (par value of each share $100), which stock the miner was to receive in a corporation which was later to be organized. A detailed reference to the contents of this contract, so far as material, will be made later. The shaft was completed sometime about the 1st of August, 1922. At this time, the tipple and superstructure were not built, nor was the air shaft constructed, nor any of the machinery installed. To each of the miners who thus assisted in the preparation of this mine was given a receipt, dated September 5, 1922, which receipts were identical, except as to names, and read as follows:
"Received of John Whitehouse $300.00 for labor for stock in Empire Coal Company. [Signed] A.W. Judy, Pres. Mgr."
Later, the machinery was installed, the superstructure was built, and the air shaft was constructed in the summer of 1923.
In December, 1923, there was a conference among these parties, at which the question was discussed of organizing a corporation, and as to the amount of capital stock thereof. It seems to have been the consensus of opinion at that time that the capital stock of the corporation should be $50,000. At least there was no dissenting voice from fixing that amount as the capital stock. At the same time, it was discussed as to how soon the corporation was to be organized. One of the interested parties suggested that the organization of the corporation be deferred until later. There seems to have been no objection registered to such suggestion. Further than this, little seems to have materialized from this meeting. Most of the miners who helped to dig this shaft continued to work with Judy, who also worked in the mine. Prior to the December meeting, the books of the company were audited by a special auditor, and it was *Page 649
found that there was a loss of about $2,000 in the operation of the mine up to that point. Parties who held these receipts for stock became dissatisfied, as a result of the showing made by the auditor, and in May, 1924, each of the miners filed a mechanic's lien in the office of the clerk of the district court of said county for the labor thus performed by him in opening this mine, and started this action to foreclose on said liens. The corporation was not completely organized until June, 1924, and as soon as it was possible thereafter, the three shares of stock provided for in said receipt were tendered to appellee herein.
Whatever other facts are material will be referred to as occasion may require.
The first question discussed is whether or not the appellee is entitled to a lien against the property of Ora Krapfel, the owner of the fee title. Section 3105, Code of 1897, provides as follows:
"Every laborer or miner who shall perform labor in opening, developing or operating any coal mine shall have a lien upon all the property of the person, firm or corporation owning or operating such mine, and used in the construction or operation thereof, including real estate and personal property, for the value of such labor, to the full amount thereof, to be secured and enforced as mechanics' liens are."
In construing this section, we have held that, where the digging and constructing of a coal mine add to the value of the property, the miner is entitled to a lien in an amount not exceeding the increase in the value because of 1. MINES AND the improvements made by the lessees. See MINERALS: Mitchell v. Burwell, 110 Iowa 10; Rickabaugh v.
lien: Ferrick, 198 Iowa 868. A lien was provided for agreement appellee in his contract, and he testifies that for payment he relied on both his contract lien and his in stock: statutory lien. The evidence in the case also effect. shows that the construction of this mine added value to the real estate far in excess of the claims of these miners. The court therefore did not err in holding that appellee was entitled to a lien not only upon the mine and machinery, but also upon the real estate in question.
Appellant insists, however, that, under the contract between appellant and Judy, there could be no lien on either the land or the fixtures, because the contract in writing provided that they *Page 650
were to be paid $2.00 a day in cash (which the evidence shows they were paid), and were to take the balance of their pay in stock of the defendant organization. He argues from this that appellee was not depending upon his lien, either statutory or contract, but had waived the same. This argument might be good, were it not for the fact that the contract itself provides for the lien until the stock was delivered, and there is no waiver therein provided of the rights of the appellee to his statutory lien; and he testifies that he relied on both the statutory and the contract lien. We find no help for appellant in this contention.
It is next urged that, the contract herein sued on being for payment in property, no action would accrue 2. MASTER AND until demand had been made, and refused by the SERVANT: payer (citing Section 3056, Code of 1897). compensa- Appellant's contention is right in his claim as tion: to the force and effect of this statute, but the agreement to facts in the case show that repeated demands pay in other were made by the miner upon Judy for stock, and than money: that no delivery was made. This is sufficient to refusal: meet the requirements of the statute, and effect. thereby this contract was changed into a money demand.
It is next urged that the mortgage given by Judy to Krapfel for $10,000 is junior to the rights of these appellees. The evidence in the case shows that, on the 5th of September, 1922, being the date of appellee's receipt from Judy for $300 3. MINES AND work performed by appellee, Judy gave to Krapfel MINERALS: the aforesaid mortgage of $10,000 for money lien: advanced by Krapfel. It is apparent, therefore, mortgage: that the mortgage given by Judy to Krapfel was priority. after the services had been performed by appellee, but within the time within which appellee could file his lien. This being true, the lien would take priority over the mortgage; but appellant seeks to escape this rule of law by pleading, and claims that the evidence showed that appellee was negligent in not filing his lien, and that Krapfel knew of and relied upon the existence of the contract by which the balance of the pay for services performed by appellee was to be made in stock of the proposed company, and that appellee failed to file his claim for a lien, and therefore is estopped from now claiming such lien. If Krapfel knew of the existence of the contract, he is bound by its terms; and as the contract provides for a lien for appellee, Krapfel knew this as *Page 651
well as any of the other provisions of the contract, and therefore cannot now be heard to claim the estoppel. In the second place, Krapfel is not shown to have changed his position to his detriment by anything that appellee did. Therefore, a plea of estoppel is not available to him.
Judy insists that he tendered the stock to appellee as soon as he organized the corporation, and that such tender was within a reasonable time, within the requirements of the law, and therefore appellee should be required to accept 4. MASTER AND said stock. The trouble with this contention is SERVANT: that, when Judy organized this corporation and compensa- took over the property, it was heavily tion: incumbered by the mortgage to Krapfel; and stock non-money in a corporation with property heavily agreement: incumbered, as it was here, was not provided for justifiable in the contract between Judy and appellee. Had refusal. Judy tendered to appellee certificates of stock in a corporation in which the corporate property was not incumbered, we might have a different question.
It is further urged that, in fact, the relationship of Judy and the men who helped make this mine was that of 5. PARTNERSHIP: partners. To make a partnership, there must be the a mutual agreement or understanding between the relation: parties to share in the profits and losses of profit and the concern. The very history of this loss. transaction shows that there was, in fact, no partnership existing.
The court entered judgment against the Empire Coal Company for the amount of appellee's claim and costs. It is urged that this is error. We think that the contention of appellant in this respect is correct. The organization of the 6. JUDGMENT: Empire Coal Company was not complete until nature and sometime after this suit was commenced. The essentials: rights of Judy under the lease and all property non-party connected with the coal mine were duly to action. transferred to the Empire Coal Company at the time of its organization; and while, of course, it must take this property subject to the rights of appellee, the claim of appellee is wholly against the property, and not against the Empire Coal Company. It was not made a party defendant in this action, and no notice was served upon it. It must follow, therefore, that the court erred in entering this judgment against the Empire Coal Company for the claim of appellee herein. *Page 652
Some other questions are discussed, but are not controlling in this matter.
The judgment of the lower court will be modified in accordance herewith, and otherwise is affirmed. — Modified and affirmed.
De GRAFF, C.J., and EVANS and MORLING, JJ., concur.
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On July 29, 1924, Robert L. Leach, superintendent of banking of the state of Iowa, was appointed permanent 1. JUDGMENT: receiver of the Sanborn State Bank. Later, he vacation: was succeeded as such receiver by L.A. Andrew, unallowable superintendent of banking of the state of Iowa. equitable O'Brien County, Iowa, filed its claims in said action. *Page 355
receivership, and on the 25th day of October, 1924, it also filed a petition in said receivership, asking that its two claims, amounting to respectively $521.82 and $20,357.60, be allowed as preferred claims. On November 19, 1924, that matter came up for hearing, and the court made an order allowing the county's claim in the sum of $20,336, and a further sum of $516.34 as preferred claims, and ordered the same paid before the depositors' and general claims in said bank. From this order the receiver appealed, and on February 16, 1926, the appeal was dismissed in this court. Leach v. Sanborn State Bank, 201 Iowa 1323. Thereafter, this action was instituted by the plaintiffs herein, and brought, not only in their behalf, but on behalf of all of the creditors of said bank. They allege that they were depositors in said bank, and had filed their claims. They set up a history of the filing of the claims by the county, and their allowance by the court as preferred, and allege that the assets of the bank are insufficient to pay the claims filed therein; that the county's claim should not have been allowed as a preferred claim; that the plaintiffs and the persons they represent were not parties to the original action for the appointment of a receiver, nor were they parties to the proceedings allowing said county's claim a preference; and that the order so allowing said claim was without the knowledge and consent of the plaintiffs and the persons represented by them; that it was the duty of the receiver to make defense against said claims; that such receiver disregarded his duty, and failed to appear and make defense thereto, but purposely and intentionally failed to appear and defend against said claims, and when said claims were presented to the court, allowed the order to be made, without protest or objection; that said order was made without the hearing by the court of any evidence of any kind or character; and that the same was entered of record because of the fact that no protest or objection was made by the receiver; that said conduct on the part of the receiver was the result of a tacit and implied understanding with the county and treasurer thereof that no defense would be made, and that there would be no resistance thereto; and that the conduct and such understanding constituted a fraudulent agreement and collusion between the county, the treasurer thereof, and the receiver, to cheat and defraud these plaintiffs and the persons they represent, and to take away from *Page 356
them their just proportion of the assets of said bank; that, by reason of the fraud and collusion above set out, the court entered said order, which would not have been done, had there not been a conspiracy between the plaintiffs and defendants, as hereinbefore set out, to defraud and cheat these plaintiffs and the persons represented by them; that plaintiffs are the real parties in interest, and had a right to rely on the receiver in performing his duty; and that they did not know of said fraudulent implied understanding and agreement. Therefore they ask that the order allowing said claim be set aside and annulled, and they suggest such other relief as the court may deem equitable.
It will be noticed from the aforesaid summary of the petition that it is based on two contentions: (1) That the receiver breached his duty in failing to defend against said claim of the county, and (2) that said order was procured by fraud and collusion between the receiver, the county, and its treasurer. No evidence whatever was introduced in the case on the second proposition; hence, so far as plaintiff's petition is concerned, the only issue tendered was the failure and negligence of the receiver to make defense to the county's claim for preference.
It appears that, to secure the deposits made in the Sanborn State Bank, the county held two depository bonds: one with the American Surety Company of New York, and the other with the Fidelity Deposit Company of Maryland. At this point in the instant case, each of these surety companies intervened in this action, pleading that, after the decision of the appeal above referred to, each of said companies purchased from O'Brien County 50 per cent of the preferred claims as established under the order above referred to. They say in their petitions of intervention that the matters now sought to be litigated by these claimants are res adjudicata, and the order was properly made by the said district court, and that plaintiffs herein were parties to said action, having been made so by published notice; deny that there was any fraudulent agreement or collusion between the county, its treasurer, and the receiver; deny each and every other allegation of plaintiffs' petition herein not substantially admitted; and ask that the plaintiffs' petition be dismissed, and for such other and further relief as equity affords.
Andrew, superintendent of banking, filed a separate answer, in three divisions. He admits all the allegations of plaintiffs' *Page 357
petition, except that he denies that he purposely and intentionally failed to appear and defend against said claim; denies that the order was made without the hearing by the court of evidence; denies that no protest or objection was made by him; also denies that there was a tacit and implied understanding between the county, its treasurer, and the receiver that no defense would be made to said petition of intervention; denies that there was any fraudulent agreement or collusion between the receiver, the county, and its treasurer; denies that there was any conspiracy between them to defraud and cheat the plaintiffs and persons represented by them.
In Division 2 he pleads that, on the 10th day of January, 1925, he made to the court a report of claims filed, and reported the county claims as depositors' claims, and denied them any preference over other depositors' claims; and that the county treasurer filed objections to the jurisdiction of the court to act on said report, and said issue has not been disposed of.
In Division 3 he alleges that he had no personal interest in this controversy, but desired to act only in accordance with the order of court and the rights of the parties, as determined by the court; asks that the receiver's report classifying said claims of the county as depositors' claims be approved, and that this cause be consolidated with the original receivership, for further trial and disposition.
Answering the petition of intervention, plaintiffs deny each and every allegation contained in such petition, except that they admit that Andrew was the duly appointed receiver; admit the entry of record of the order of November 19, 1924, allowing O'Brien County's claims as preferred, admit that there was an appeal therefrom to the Supreme Court, and that the same was dismissed.
Interveners amended their petition, alleging that the plaintiffs in the case at bar permitted the receiver to represent them upon the hearing of the O'Brien County claim for preference, and did not intervene or resist said claim at any time on their own behalf, and that the same was true of the appeal of the county's claim to the Supreme Court; that plaintiffs did not bring this action for eight months after the original order allowing said preference, and the interveners were not aware that the plaintiffs in this case were asserting any rights against the *Page 358
county's claims until subsequent to the purchase by them in good faith of the said county claim; and that the plaintiffs are, therefore, estopped from denying the rights of the interveners to have said preferred claim paid in full by the receiver.
The order involved herein is as follows:
"Now, to wit, on this 19th day of November, 1924, it being one of the regular days of the November, 1924, term of said court, this cause comes on for hearing on the petition of intervention for preference of claim filed by the county of O'Brien, Iowa, and J.F. Yeager, asking that the county's deposits of $20,336 and $516.34 respectively be held to be preferred claims against all of the assets of said bank in the hands of said receiver. The court, being fully advised in the premises, finds that all the allegations of the petition of intervention are true, and that said claim should be and is a preferred claim, as prayed in said petition. It is therefore ordered, adjudged, and decreed that the sum of $20,336 and a further sum of $516.34 are preferred claims, and that the same are established as preferred claims against all the assets of said bank, and are to be paid before the depositors' and general claims of said bank are paid."
A preliminary matter should be disposed of here.
It appears that the receiver herein filed a list of creditors of the corporation and designated their status. Among others it designated the claims of the county herein as those of ordinary depositors' claims, without a preference. The record is not quite clear as to whether this report and recommendation by the receiver was made before or after the entry of the order attacked herein; but the county had filed objections to this classification of its claim, and the plaintiffs herein insisted that the question was still open before the district court by reason thereof. Regardless of whether this report of the receiver's was filed before or after the entry of the order herein, about which complaint is made, neither the plaintiff's herein nor the receiver can derive any benefit therefrom, because the order of the court was superior to the recommendations of the receiver. The real battle ground in this case is whether or not the plaintiffs are in a position to maintain this action, and if so, whether or not they have sustained the cause of action set out by them.
It is apparent that the difficulties in this case arose from a change in the law of this state by reason of an enactment by the *Page 359
general assembly. We held, in the case of In re Receivership ofMarathon Sav. Bank, 198 Iowa 692, that the county, under these circumstances, was entitled to a preference. By reason of the enactment of Chapter 189, Acts of the Fortieth General Assembly, we later held, in Leach v. Exchange State Bank of Stuart,200 Iowa 185, that the county was not entitled to preference. The receivership in the instant case was commenced, and the order entered by the lower court allowing the county's claim a preference, after the enactment of the fortieth general assembly, but before the decision in Leach v. Exchange State Bank ofStuart, supra. The record shows that, after the county had filed its claims, the receiver advised its attorney that it had no defense against the county's claim, and that the county was entitled to preference. The matter was called up in court for hearing on the county's claim, and, on the court's calling the matter to the attention of the attorney for the receiver, such attorney advised the court that he knew of no defense to the claim. Opposing counsel suggested that they would like to get an order of court with reference to these claims, and the judge asked the attorney for the receiver if it were satisfactory, or words to that effect, and he replied, "Yes, there is no defense to it." Thereupon the presiding judge signed the order. It is apparent that all of the parties at the time were laboring under the assumption that the case of In re Receivership of MarathonSav. Bank was controlling. Appellants insist that that order was based solely upon the ruling in the Marathon Bank case, which was a mistake, as the law had been amended by the legislature to change the rule, as shown in Leach v. Exchange State Bank ofStuart, supra.
Plaintiffs' petition herein is bottomed on the proposition that a fraud was perpetrated on these claimants and the parties and depositors they represent, in that the receiver made a fraudulent agreement or colluded with the claimant, the county, and that a conspiracy existed between them to allow this claim in violation of law. There is no evidence whatever in the record, and none tendered, to show any such agreement, collusion, or conspiracy between the receiver and the county. If there is any fraud in this case, it must be found in the mistaken view of the law entertained by the parties and the court at the time the order was entered, if such matters could be considered as fraud. *Page 360
The question, therefore, narrows itself down to the simple question of whether or not, where an order is made in a case of this kind by the court in which the receivership proceedings are pending, creditors of the estate may afterwards attack the same on the ground that the court was mistaken in the law governing the matter involved. To so hold would create too much uncertainty in proceedings of this kind. Litigation would be endless, and if one creditor could attack such an order, all could.
Various ones of our rulings have been called to our attention, in which matters of a similar character have been brought in estates; and it has been our unbroken rule that the validity of all of these intermediate orders might be considered in a hearing on the final report of the executor or administrator. This is our rule, not by reason of any general principle of law, but because of a statutory provision in this state, providing for such attack on intermediate orders made in an estate. We have no such provision, however, with reference to receiverships. We accept, without indorsing, the allegation of appellants that, if this order had been procured by fraud, these depositors had such an interest therein that they could maintain an action to set aside the same. In fact, such seems to be the general rule. But we are not inclined to hold that, where the record is absolutely silent on the question of fraud, the simple fact that the court or parties may have been mistaken as to the law governing the questions before it gives creditors circumstanced as are the plaintiffs in this case a right to attack the same in an equity action to set it aside, based on the mistaken apprehension of the law by the court in entering the order.
Another angle of this appears to us to be entitled to consideration; and this involves a double-edged sword, in that the plaintiffs claim that they are not bound by the action of the receiver herein, because no notice was served 2. RECEIVERS: upon them of the claim of the county, and they allowance were not parties to the hearing on the county's and payment claim. It does not seem possible to us that of claims: every claimant who files a claim in a notice. receivership is bound to serve notice on all other claimants before the court is entitled to make an order allowing or disallowing such claim. The plaintiffs in this case filed claims which were allowed. Is it possible that, at this late date, some other claimants can come in and ask to have allowance *Page 361
of such claims set aside because the court was mistaken as to the law governing the allowance of such claims? We think not. If we should so rule, the receiver in matters of this kind could not safely make any distribution of an estate until the five-year limitation had run, which would make an impossible condition. The aim and purpose in all of these receivership matters are that the receiver shall be as expeditious as possible in husbanding and distributing the estate that comes into his hands; and to thus hold that an order allowing the claim could be attacked by equity proceedings at any time within the statute of limitations would create such uncertainty, delay, and expense as would be unsufferable.
In the brief and argument of the plaintiffs much stress is laid on the case of Leach v. State Sav. Bank, 202 Iowa 97. In that case it was stipulated in the lower court that the rights of the county were to be determined under a certain section of the Code, and on appeal, this court refused to be bound by a stipulation as to the law, and in the course of the discussion said:
"We may add that it was not within the function or power of the receiver to stipulate the law adversely to his trust."
The Leach v. State Sav. Bank case, however, has no application to the case at bar, because that case was determined on direct appeal, and it is further distinguished in that there is no stipulation whatever in the case at bar governing the law of the case. The most that can be said is that the attorney for the receiver claimed that he knew of no defense, and the lower court, in passing thereon, had to, and did, determine for itself the law of the case, and held that the claim was entitled to a preference.
The next case called to our attention is that of Kane Co. v.Independent Sch. Dist., 82 Iowa 5. In that case the Independent School District of Rock Rapids suffered a judgment to be entered against it by default. The record shows that both parties to the original litigation knew that the claim sued upon was void because it exceeded the limit of lawful indebtedness. Article XI, Section 3, Constitution of the state of Iowa. Whatever virtue there may be in the Kane Co. case, the weight to be given to it has been minimized by our later cases, and especially the case ofRankin v. City of Chariton, 160 Iowa 265. In the Rankin case, as in the Kane Co. case, the action was *Page 362
brought to compel a levy of a tax to pay a judgment which had been previously obtained by a written agreement stipulating that the plaintiff should have such judgment. The city set up this stipulation and agreement as proof of collusion and fraud, as is done by the plaintiffs in the case at bar. We there said:
"Was the judgment entered in pursuance of such stipulation void? We think not, for that the element which would render it void was utterly wanting, i.e., fraud or collusion to avoid the constitutional limitation. Neither party in what was done was actuated by the purpose or intent to saddle an unjust or illegal indebtedness on the municipality. The facts are distinguishable from Kane Co. v. Ind. Dist. of Rock Rapids, supra. There, both parties were aware that the warrant to Kane Co. was issued after the indebtedness of the school district greatly exceeded the constitutional limit, and the fraud which nullified the judgment was that, in obtaining it, the parties, notwithstanding such knowledge, colluded to have it entered, and thereby to impose the obligation to pay in utter defiance of the fundamental law. The officers of a municipality are as wanting in power to agree to such a judgment as they are to create the alleged indebtedness on which it is based. But where judgment is entered, even on a void warrant, in absence of fraud or collusion, there is no ground for declaring it void merely because the claim was unjust. That was matter of defense. Howard v. Huron, 5 S.D. 539
(59 N.W. 833, 26 L.R.A. 493). Nor can it be said that a judgment is void where the parties, in adjusting differences or conflicting items, stipulate that one or the other have judgment for the balance in his favor, if they act in good faith and without the purpose of evading the Constitution, or in belief that it will have that effect, and it turns out that a part of the indebtedness on which it is based was in excess of the constitutional limit, though otherwise valid. As said, the element of fraud is utterly wanting in such a case, — that is, fraud which will nullify the judgment, — and the court did not err in finding it was not proven in the case at bar."
All that is held in the case of Stewart Lbr. Co. v. Downs,142 Iowa 420, is that a stranger to a judgment cannot, by an independent suit, challenge the judgment and have it corrected as to the amount, without a showing that the judgment was entered through fraud and collusion of the parties. *Page 363
In Edmundson v. Independent Sch. Dist., 98 Iowa 639, the holding was that the judgment against the school district could not be attacked in an action in mandamus, to compel the district to levy a tax to satisfy said judgment, on the ground that the debt upon which the judgment was rendered was in excess of the constitutional limitation, as such exercise was a matter of defense, and should have been interposed in the suit in which the judgment was obtained. Hence none of these cases have a bearing upon the question before us.
The other cases cited by appellants are probate proceedings, in which intermediate orders for the allowance of claims were attacked by other creditors of the estate. As heretofore suggested, they have no bearing upon the question before us, by reason of the following sections of the Code of 1924:
"12050. Any person interested in the estate may attend upon the settlement of his accounts and contest the same."
"12051. Accounts settled in the absence of any person adversely interested, and without notice to him, may be opened within three months on his application."
Appellants also cite Balch v. Beach, 119 Wis. 77 (95 N.W. 132), a Wisconsin case which is identical with our Kane Co. case above cited; and, as we have receded from the doctrine therein, the Wisconsin case will be of little use in consideration herein.
Appellants also cite Ramsey v. Hicks, 53 Mo. App. 190, which, in its holding, as a matter of fact, is antagonistic to the contention of appellants. The action was to set aside the allowance of a claim in a suit. The claim was alleged to be fraudulent, and without foundation in law or fact, and it was alleged that the allowance was the result of collusion between the defendants and the administrator, and that the administrator failed to notify the plaintiffs of the existence of the claim. The plaintiffs were the heirs to the estate. The rule therein announced is:
"The rule is that there must have been fraud in the procurement of the judgment itself to authorize a court of equity to set it aside. * * * Proof that the claim itself was tainted with fraud, or that the evidence adduced at the trial was insufficient to authorize the judgment, becomes admissible only when there is other evidence tending to prove fraud in obtaining the judgment, *Page 364
and then only to enable the court the better to judge of the criminating circumstances."
We have now made reference to all of the cases cited by appellants, and find little aid in any of them in determining this question.
Another matter that seems to be an insuperable obstruction to plaintiffs' cause of action herein is that they 3. APPEAL AND had a speedy and adequate remedy at law, by ERROR: who appealing from the order of the district court may appeal: allowing the county's claims a preference. Such receivership seems to be the general rule. High on Receivers creditor. (4th Ed.) 971, Section 819a. That the remedy by appeal existed is held in the following cases:
Eiswald v. Nautical Prep. Sch. (R.I.), 75 A. 262, holds, in substance, that, the rights of all claimants entitled to distribution of the funds in the receiver's hands being affected by the decree, the general estate is to be exhausted first in the payment of the costs and expenses of receivership, before any money can be taken therefor from the special funds, and appeal will lie therefrom.
In Links v. Connecticut River Banking Co., 66 Conn. 277
(33 A. 1003), the receiver refused to sue certain delinquent stockholders, and other stockholders attempted to sue the delinquent ones. It is there said that the remedy was to make application to remove the receiver, or to apply for an order to compel suit to be brought, and if this was denied, they should appeal.
It is our conclusion that the dissatisfied creditors in this matter, being the parties who were prejudiced by the order of court, had the right to appeal, and thus have 4. RECEIVERS: the matter adjudicated. Having failed so to do, general they waived their right. The remedy thus administra- afforded them would be complete without going tion: right into equity; or they could have appeared of credi- promptly when they discovered that this order tors. had been made, and made application in the receivership to have the order set aside. This they did not do, but waited for some eighteen months after the original order was entered, before they moved. We feel that, under the circumstances *Page 365
related, they had no remedy. Such was the holding of the district court. — Affirmed.
STEVENS, C.J., and EVANS, FAVILLE, De GRAFF, and WAGNER, JJ., concur.
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Katie Varney, a woman between sixty and seventy years of age, the wife of C.M. Varney, the executor herein, sustained a fractured hip on the 23d day of July 1930, and was taken to the hospital at Spencer, Iowa, where she died on the 5th day of August of the same year from clinical pneumonia. *Page 1242
The plaintiff herein, Lorena Flint, is a niece of C.M. Varney. The deceased owned a purse, which contained a check of C.M. Varney, payable to Katie Varney, for $10, drawn on the Farmers Trust Savings Bank of Spencer, and also a certificate of deposit in the same bank for $350, a watch, and $10 in money. This is the property involved herein.
The plaintiff claims that she is entitled to the same as a gift from the deceased donatio causa mortis. Defendant executor claims said property is part of the assets of the estate of said deceased. The purse and its contents were in the possession of the plaintiff at the time of the death of Katie Varney.
[1] The doctrine of donatio causa mortis has been repeatedly recognized by this court, and the subject is quite fully reviewed in Vosburg v. Mallory, 155 Iowa 165, 135 N.W. 577, 578, Ann. Cas. 1914C, 880. There are certain rules governing this matter which must have attention in the determination of this case. In the aforesaid case we said:
"A gift causa mortis is defined to be a gift of personal property made by a person in expectation of death then imminent upon an essential condition that the property shall belong fully to the donee in case the donor dies as anticipated leaving the donee surviving him, and the gift is not in the meantime revoked. 2 Schouler on Personal property, section 135. `Story observes that by our law there can be no valid donatio causa mortis (1) unless the gift be with a view to the donor's death; (2) unless it be conditioned to take effect only on the donor's death by his existing disorder or in his existing illness; and (3) unless there be an actual delivery of the subject of the donation.'"
The literal translation of the term "donatio causa mortis" is "a gift in prospect of death." This species of donation came down to us from the civil lawyers, who borrowed it from the Greeks, and it became a part of the common law. No writing or consideration is a necessary element of such a gift. The essential elements, as set out in 28 C.J. p. 687, section 97, are: (1) That the gift must be in view of the donor's impending death; (2) the donor must die of the disorder or peril; (3) there must be a delivery of the thing given; (4) the donor must be competent to make the gift; (5) there must be an intent on his part to do so; and (6) there must be an acceptance by the donee. *Page 1243
There must be an apprehension of death from some existing disease or impending peril. This apprehension may arise from illness or from a threat of peril or danger. It is not necessary, however, that the gift be made while the donor is in extremis or moved by apprehension of immediate death when there is no time or opportunity to make a will, or that he be confined to his bed or his room. Williams v. Guile, 117 N.Y. 343, 22 N.E. 1071, 6 L.R.A. 366; 28 C.J. p. 688. Technically, there must be an acceptance by the donee as well as delivery by the donor, but this matter is of slight practical importance; where the gift has been received by the donee and imposes no burden on him acceptance will be presumed. In re Estate of Podhajsky, 137 Iowa 742, 115 N.W. 590; Darland v. Taylor, 52 Iowa 503, 3 N.W. 510, 35 Am. Rep. 285; In re Bell's Estate, 150 Iowa 725, 130 N.W. 798; Kneeland v. Cowperthwaite, 138 Iowa 193, 115 P. 1026; Lewis v. Curnutt,130 Iowa 423, 106 N.W. 914. It seems to be quite well settled that, where the gift consists of certificates of deposit or checks on banks, payable to the order of the donor, the gift is good without indorsement of these instruments. Mellor v. Willows Bank,173 Cal. 454, 160 P. 567; Fagan v. Troutman, 24 Colo. App. 473, 135 P. 122; Philpot v. Temple Banking Co., 3 Ga. App. 742, 60 S.E. 480; Callahan v. Forest (Sup.) 118 N.Y.S. 541; Foster v. Murphy, 76 Neb. 576, 107 N.W. 843; Deneff v. Helms, 42 Or. 161, 70 P. 390; Royston v. McCulley (Tenn.) 59 S.W. 725, 52 L.R.A. 899; Basket v. Hassell, 107 U.S. 602, 2 S. Ct. 415, 27 L. Ed. 500.
[2] Mrs. Lorena Flint was a witness in the case. Objection is made to her competency under section 11257 of the Code. We have announced the rule that in equity cases, triable de novo in this court, any evidence introduced in the case from an incompetent witness under said section 11257 will be disregarded by this court in reaching its conclusion. O'Neil v. Morrison, 211 Iowa 416, 233 N.W. 708; Nortman v. Lally, 204 Iowa, 638, 215 N.W. 713.
Defendant by way of answer pleaded a general denial, and also that Katie Varney at the time of the alleged transaction was physically ill and mentally incompetent, and was unable at said time to know or comprehend the nature and extent of her property, etc., and that she was mentally incompetent to make gifts; also, that the alleged gift was the result of persuasion and *Page 1244
undue influence on the part of the plaintiff exercised on Katie Varney at the time in question.
The record in the case is wholly silent as to any evidence of the incompetency of the donor or that there was undue influence. All the evidence there is in the record affirmatively shows that the donor was mentally competent at the time the alleged transaction occurred. So we will give no further attention to this contention.
In the further consideration of this case we will recognize and deal only with the testimony given by this witness which she was competent to give. Her testimony, summarized, is that she knew Katie Varney prior to her marriage, and that they visited back and forth. She went to the hospital on the 23d day of July, where Mrs. Varney was, and visited at the hospital every day except one during Mrs. Varney's illness. Referring to the handbag, she says: "I have seen that handbag before. It was Mrs. Varney's handbag. I saw the handbag in the drawer in the dresser in the room in which Mrs. Varney was. I took the handbag to my home with me. This was the first week that Mrs. Varney was in the hospital. I don't remember the date. There was in the handbag a certificate of deposit, a check, Mrs. Varney's watch, and $10 in money. (These were identified as exhibits in the case.) After Mrs. Varney's death I cashed the $10 check, thinking it was my own. On the morning of Mrs. Varney's death Mr. Varney went with me to my home. I told him my aunt had given me the bag and the circumstances under which it was given and that she wished me to have it in case of her death. He told me I might keep it. I described everything that was in the handbag to him. It was then in my possession with its contents. I would remain a few minutes when I visited the hospital, perhaps a half hour. Sometimes I was there twice a day, just to call on her. Prior to Mrs. Varney's coming to the hospital I would see her in Dickens possibly once every two weeks, whenever I happened to go to Dickens. I never saw her delirious at the hospital. It was only two or three days before she passed away that I had to rouse her. There was nothing wrong with her except a fractured hip, so far as I observed. Her pain was located in her hip and leg. I don't know what she died of. I didn't know she was going to die until the morning of her death. Her death was unexpected and a surprise to me. Mr. Varney and I used to get along all right. *Page 1245
There was a little misunderstanding in the last few years perhaps. After that time there was not a friendly feeling between us, but I went to his home just the same."
Merry Miller testifies that she was superintendent of the Spencer Hospital for seven years. She was graduated as a nurse in 1920. She personally knew Mrs. Varney and Mrs. Flint, although, "My acquaintance with Katie Varney was casual. I recall the circumstance of Katie Varney being in the hospital up to the time of her death. I think I saw Mrs. Flint two or three times in Mrs. Varney's room, in the hospital. I was in her room a few days before her death when Mrs. Flint was there. Mrs. Flint asked me to go in. She said Mrs. Varney wanted to say something to me. I went in. Mrs. Flint asked Mrs. Varney to tell me what she said to her (Mrs. Flint) before. Mrs. Varney said she had wished Mrs. Flint to have a purse and its contents in case anything happened to her (Mrs. Varney). That is the conversation as nearly as I can remember it. I suppose those were not the exact words, but that was the substance as I remember it. I do not recall that I did take part in the conversation. I believe Mrs. Varney did comprehend what she was talking about. At the time Mrs. Varney made this statement I think she was sound mentally and knew and understood what she was saying and doing. When I went in to Mrs. Varney's room I presume I would talk to Mrs. Varney and engage in conversation with her. I don't remember what the conversation was." This witness had previously testified that she was the overseer of the nurses but sometimes assisted them with the work. "I am not sure how often I would be in Mrs. Varney's room. I don't remember giving her any attention as a nurse. From observation alone at the times I was in Mrs. Varney's room and up to and including the day when I was there with Mrs. Flint I believe Mrs. Varney was of sound mind."
Ada Smith testifies that she has known Mrs. Varney since she was a little girl. "The family visited back and forth. I remember when Mrs. Varney was brought to the hospital in Spencer, I visited her every day the first week from ten minutes to half an hour. She was in a coma state from Sunday afternoon at five o'clock and died the following Tuesday. I did not realize that she was going to die or was in serious condition until Sunday evening before her death when I called at the hospital. I saw her every day the first week and about every other *Page 1246
day the second week, up until Thursday or Friday before her death. I did not notice any difference in her mental condition. In my opinion she was of sound mind."
The testimony of Mrs. Mary Melissa Goff was taken in the form of a deposition. "I have lived in Dickens since 1914. Knew Katie Varney very intimately; belonged to the same church; visited back and forth two or three times a week. I recall she was injured and taken to the hospital at Spencer. She was there three or four weeks. It might have been less, but she did not expect to die, and I only called upon her once at the hospital about a week before her death. She was in bed and not very well and I did not stay long. I expected to come back to the hospital to see her again the next morning and she asked me to call at her house and get her handbag that was in her bedroom, and enumerated the things in the handbag, and she said she wanted Lorena Flint to have the contents. She said, `My watch, my purse, my glasses, and some papers, and I want Lorena to have them.' She said Lorena had been very nice and kind to her, and she needed it, and `I want her to have it because she has been kind to me.' I did not go but I told Mr. Varney that; I said, `You go up and get that handbag when you go as I am not going this morning.' Mrs. Varney said, `I want you to hand everything there is in that handbag to Lorena.' I don't know whether Mr. Varney took that or not." On cross-examination the witness said: "I did not consider that her illness was so serious as to result in death. Mrs. Varney told me that Mrs. Flint had been to see her every day. I don't remember how long Mrs. Varney was in the hospital. I should think I was at the hospital a week or two before Mrs. Varney died. My memory with reference to it is not clear. I don't remember anything else we talked about. Mrs. Flint was there all the time I was."
[3] It is to be remembered that the burden of proof in this case is on the plaintiff to establish this gift causa mortis. The fact that at the time of the death of the deceased the plaintiff was in possession of this personal property does not raise a presumption of a gift. See Roberts v. Morse, 190 Iowa 1344, at page 1349, 181 N.W. 678. In discussing this question as applying to the facts in this case, the undisputed evidence is that the deceased was in her lifetime the owner of the property in question, and continued to be the owner thereof until her death *Page 1247
unless such ownership had been divested by a gift thereof. Plaintiff claims that she acquired the ownership of this property by gift, and the burden is on her to prove it. Kirchner v. Lenz,114 Iowa 527, 87 N.W. 497; Samson v. Samson, 67 Iowa 253, 25 N.W. 233. Unless the fact of the gift was proven, then the conceded ownership of the decedent during life presumptively continued to the time of her death, and the possession of the plaintiff, if such, would become presumptively that of a bailee. Roberts v. Morse, 190 Iowa 1344, 181 N.W. 678.
[4] That delivery may be proven by circumstantial evidence, see Chicago Savings Bank Trust Co. v. Cohn, 197 Ill. App. 326; 28 C.J. p. 705; 12 R.C.L. p. 970. Prior declarations of the donor constitute part of the res gestœ. Dawson v. Waggaman, 23 App. D.C. 428; Parker v. Marston, 27 Me. 196; Matter of Swade, 65 A.D. 592, 72 N.Y.S. 1030; 12 R.C.L. p. 971. Subsequent declarations of the donor in the nature of an admission against interest are admissible in evidence as tending to show that he gave the property in question to the donee. 28 C.J. p. 704. In the case of Darland v. Taylor, 52 Iowa 503, at page 506, 3 N.W. 510, 35 Am. Rep. 285, we recognized this rule and held that the declarations of the donor are admissible from which a delivery may be inferred.
In the light of the rules of law that are laid down in this opinion, and the record in this case, the substance of which we have set out, we are of the opinion that the plaintiff was entitled to recover herein, and that the district court made no error in its ruling when it entered a decree in her favor. — Affirmed.
All Justices concur.
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A brief reference to the issues is essential in this case. The petition is in two counts. In Count 1, appellee alleges that, on or about November 29, 1924, it sold certain plumbing and heating fixtures to the appellant Ada S. Morrison for installation and use in a certain apartment and office building then in process of construction in the city of Carroll. It is further alleged that the transaction was had with appellant O.C. Morrison as the agent of his wife and co-appellant, who was the owner of the building. Count 2 asks recovery against the appellant O.C. Morrison, to whom it is alleged the material was sold and delivered. In addition to a general denial, the answer admits the purchase of the plumbing and heating fixtures, and that Ada Morrison is the owner of the building on which a mechanics' lien is asked; admits the filing of the account in the office of the clerk of the district court for a mechanics' lien; avers that they made no contract with appellee; denies that *Page 884
appellee furnished any of the supplies referred to; and, in a separate paragraph, avers that the person of whom they purchased the material described in the petition has been fully paid, and that the said material was so defective as that the defendant O.C. Morrison was compelled to expend the sum of about $200 for the purpose of obviating the defects. The answer asks that the petition be dismissed, with costs. The receipt of the items set out in the petition is admitted by counsel for appellants.
I. The evidence without material conflict shows that the materials described in the petition were sold to the appellant Ada S. Morrison, as alleged therein. It also appears from the testimony that appellant O.C. Morrison had, prior to the transaction involved herein, purchased materials from a man by the name of Kane, at Mason City. Appellee's agent, after a conversation with Kane, visited Carroll, and negotiations then begun for the purchase of the materials in question were later consummated, and the goods were shipped, and were received by appellants. The materials were not purchased of Kane, nor on his account. He figured in the transaction only as a friend of the parties'. Credits, all of which are admitted by appellee, leave a balance due on the account of $200. Damages due to alleged substitution of material are pleaded by way of set-off, to the extent of $200.
The appellant O.C. Morrison acted as the agent of his wife in all of the transactions referred to in the evidence. Counsel seek to limit the scope of the admitted agency to the original transactions, — that is, the purchase of the materials. The admission does not, in terms, so limit the agency, notwithstanding the fact that the word "transaction," instead of "transactions," is used therein. We think that the only inference to be drawn from the testimony is that O.C. Morrison assumed to, and did, act, in all matters involved, as the agent of his co-appellant. O.C. Morrison did not, however, as such agent, intend to bind or make himself liable for the purchase price of the materials. They were purchased for, and later installed in, the apartment and office building owned by his wife. The evidence does not sustain the cause of action set out in the petition against him. We need not discuss the evidence on this point.
II. It is, as stated, claimed that the radiator valves received from appellee were not the kind ordered. This is admitted by *Page 885
appellee, with explanations tending to show that, at the time the contract was made, O.C. Morrison was informed that the kind of valves ordered would be shipped to him if made by the manufacturer of whom the materials were purchased, and that otherwise, standard valves would be furnished. Testimony tending to show that the valves received were installed at a considerably greater expense than would have been necessary if the kind ordered had been furnished, was introduced. This additional expense constitutes the offset sought to be interposed against the account. The valves shipped, after some correspondence with the person with whom the contract was negotiated, were installed as a part of the heating system. As soon as appellants discovered that the valves were not the kind ordered, appellee was notified to that effect. Thereupon, appellee wrote to O.C. Morrison, informing him that the company of whom the supplies were purchased did not manufacture the kind of valves desired, and that, if those shipped were not satisfactory, appellants were privileged to return them. To this communication appellants made no reply, and no further objection, so far as the record shows, was made to the valves until the answer in this case was filed. The answer merely states that "the material was so defective as that the defendant O.C. Morrison was compelled to expend the sum of about $200 for the purpose of obviating the defects." The pleadings were not assailed by motion for more specific statements, and the trial proceeded on the issues joined.
After the trial was concluded, appellee filed a reply, purporting to conform the pleadings to the 1. APPEAL AND evidence, and setting up the acceptance and use ERROR: of the alleged defective materials by appellants review: as an estoppel. It is urged by appellants that harmless the reply was filed too late, and without error: permission of the court, and cannot, therefore, belated be considered. The law at this point is well reply. settled.
If, after due inspection by the purchaser, and with full knowledge that the valves were not the kind ordered, appellants accepted and used the same in the building, they may not, when *Page 886
payment is demanded, plead the defects as a 2. SALES: defense. Berthold Jennings v. Seevers Mfg.
performance Co., 89 Iowa 506; Schopo v. Taft Co., 106 Iowa of 612; Hoopes Sons v. Simpson Fruit Co., 180 contract: Iowa 833. acceptance of goods: estoppel.
But was the delay in the filing of the reply fatal to its consideration? Counsel for appellee in argument state that the attention of the court and counsel for appellant was called to the proposed reply during the trial, and that no objection was made to the filing thereof. Counsel for appellants do not in terms deny this claim of appellee's, but assert that the record does not so show. The record is, in fact, silent on this point. Manifestly, the pleading was not timely, and such delays in filing pleadings should be avoided. Nevertheless, we think appellants were not prejudiced by the delay, and that the reply should be considered, and effect given to the alleged estoppel, if proven. It is and has always been the policy of this court to indulge great liberality in the filing of amendments to pleadings where no new issue is set up or issues previously tendered substantially changed. Tiffany v. Henderson, 57 Iowa 490; Hansonv. Cline, 142 Iowa 187; Rice v. Bolton, 126 Iowa 654; Cole v.Laird, 121 Iowa 146; Larkin v. McManus, 81 Iowa 723; Le MarsBldg. L. Assn. v. Burgess, 129 Iowa 422; Sturman v. Sturman,118 Iowa 620; Story County v. Hansen, 178 Iowa 452; Cottong v.Zybell, 179 Iowa 1184; Blandon v. Glover, 67 Iowa 615.
The evidence of the acceptance by appellants of the valves received is not disputed. O.C. Morrison admitted that he knew they were not the kind of valves desired, before they were installed. The reply, therefore, does not tender an issue upon which either party apparently could have offered further substantial proof. At least, appellants do not now claim that they were deprived of the privilege of introducing all of their available evidence. The only possible question of fact suggested by the record which, if met by proof, might possibly have tended to obviate the estoppel, is that the valves were received and installed in January, when, it is suggested in argument, it was necessary for appellants to use them at once, to avoid greater injury which might result from the delay incident to the securing of the desired valves. The record does not show, however, *Page 887
whether the building was then ready for occupancy, or when it was finally completed and the heat turned on.
A certified copy of the record in the clerk's office shows that the cause was in fact submitted June 15th, which was 11 days after the reply was filed. It is claimed by appellants that it was understood, when the evidence was closed, that the cause would be submitted without argument. This is not disputed, but the record shows only as above. The only change in the issues made by the reply was the averment that the evidence already introduced estopped appellants from claiming damages on account of the failure to furnish the valves originally ordered. No new matter was alleged therein. No doubt, amendments to pleadings, to which the reply is analogous, setting out new causes of action, are properly stricken when the filing is not timely. Breen v.Iowa Cent. R. Co., 184 Iowa 1200; Boardman v. Drach Constr. Co.,123 Iowa 603; Roberdee v. Bierkamp, 160 Iowa 687; Winn v. Strong,196 Iowa 498.
Leave of court should also have been first had. The failure, however, of appellee to secure such permission is not alone a sufficient ground for disregarding the reply. Miller v. Perry Townsend, 38 Iowa 301; West Side Lbr. Co. v. Hathaway, 115 Iowa 654.
It would clearly have been an abuse of the court's discretion to refuse appellee permission to file the reply if it had been asked. In such case, the reply should be permitted to stand.Miller v. Perry Townsend, supra; West Side Lbr. Co. v.Hathaway, supra; Carlisle v. Sells-Floto Shows Co., 180 Iowa 549.
We have carefully considered all of the propositions urged by appellants in their brief and argument. It is not necessary to refer specifically to each of them. It is contended that much of the evidence relied upon to establish the alleged estoppel is incompetent. If we concede, without so holding, that testimony was improperly admitted, sufficient competent evidence was introduced to establish the estoppel. The bills of lading admitted in evidence have little materiality when weighed in connection with the other testimony. They may well be disregarded, without affecting the weight of the testimony. This, coupled with the admissions of appellants, established every essential element of recovery against Ada S. Morrison. Nothing is lacking. It *Page 888
is our conclusion, as stated above, that the cause of action alleged against O.C. Morrison is not made out. It follows that the judgment entered against him cannot be sustained. — Reversedon the appeal of O.C. Morrison; affirmed on the appeal of Ada S.Morrison.
MORLING, C.J., and De GRAFF, ALBERT, and WAGNER, JJ., concur.
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It is claimed by the plaintiff-appellee that, on or about November 15, 1920, he was employed by Aymer D. Davis to perform for him engineering and surveying services. Furthermore, the appellee asserts that, according to the contract of employment, he did the work requested by Mr. Davis. *Page 1250
These services were performed by appellee, it is said, during the years 1920 to 1924, both inclusive.
Aymer D. Davis, during his lifetime, was a practicing lawyer located at Eldora. Appellee was a civil engineer living in the same city. On October 17, 1928, Davis died as the result of a gunshot wound. His wife, Clara G. Davis, the defendant-appellant, was duly appointed executrix of his estate, and, on January 26, 1929, appellee filed his claim in the probate proceedings for the amount here sought. During his lifetime, Davis, as an attorney, represented several clients who improved their farms by ditching. An arrangement was made between Davis and his clients, appellee asserts, under which those clients employed Davis to do, not only the legal work for them, but also to furnish the required engineering services. In order to comply with such arrangement, appellee maintains that Davis hired him to do the engineering work.
[1] By way of answer to appellee's claim, the appellant denies the said employment and asserts that Davis acted only as attorney in the matter, performing legal services for his clients. Also, it is contended by appellant that appellee was hired, not by Davis, but by the aforesaid clients. Such employment of appellee may have been accomplished, appellant concedes, through Davis, the attorney, but it was the clients, she insists, and not Davis who actually hired appellee. Moreover, appellant in her answer declared that appellee's claim was barred by the statute of limitations, and that the same is within the statute of frauds. Then by way of a further and inconsistent answer, appellant pleaded that appellee's claim had been paid.
When presenting the issues to the jury, however, the district court did not submit the issue of payment. All other issues were submitted. Therefore, because the district court did not present to the jury the issue of payment, a reversal is asked by the appellant.
I. The district court enumerated the issues, but, as before stated, did not include the one relating to payment. By thus enumerating certain issues, the district court naturally gave them prominence, and such prominence was sufficient to exclude from the jury's thinking the unnamed issue of payment. Following the statement of the issues, the district court then charged *Page 1251
the jury concerning a collateral agreement under the statute of frauds, and also instructed them as follows:
"The burden is on the plaintiff (appellee) in this case to establish by a preponderance of the evidence each and all of the following propositions claimed by him:
"1. That on or about the month of November, 1920, A.D. Davis orally employed the plaintiff (appellee) to do certain engineering and surveying work for him and personally obligated himself to pay the plaintiff (appellee) therefor.
"2. That pursuant to such employment, the plaintiff (appellee) did do the matters and things, or some of them, as set out in plaintiff's (appellee's) statement of account, Exhibits A, B, C, C-1, D and E.
"3. The fair and reasonable value of the items for which claim is made."
As a part of the same charge, the district court, after telling the jury what appellee must prove, continued with the following conclusion:
"Now, if the plaintiff (appellee) has established, by a preponderance of the evidence, each and all of the foregoing propositions, then plaintiff (appellee) is entitled to a verdict at your hands in some amount, unless you find by a preponderanceof the evidence that the items of plaintiff's (Appellee's)account for services so rendered by plaintiff (appellee) pursuantto such employment are barred by the statute of limitations."
(The italics are ours).
[2] Payment again is impliedly excluded from the issues presented to the jury. Consequently the appellant did not have the benefit of the jury's finding on that subject. While the issue of payment may be inconsistent with some of the other defenses interposed, yet such inconsistency does not preclude the defense. Section 11199, Code, 1927. A defense properly pleaded should be submitted to the jury, providing there is evidence to sustain it. Whyte v. Union Mutual Casualty Co., 209 Iowa 917; Busch v. Tjentland, 182 Iowa 360; Snipps v. The Railroad Company,164 Iowa 530.
[3] There is evidence in the record tending to sustain the plea of payment. This evidence is substantial, as distinguished *Page 1252
from mere scintilla. Such evidence consists of the following facts and circumstances. The engineering work in question was performed during the years last named, but no demand was made on Aymer D. Davis for compensation. So the account is long past due. Much of the work was performed seven years before Mr. Davis died. Appellee and Mr. Davis both lived in Eldora, and, so far as appears from the record, Mr. Davis was financially able to have paid appellee at any time. Yet the account was not paid, and no demand made on Mr. Davis therefor. That is a circumstance to be considered when determining whether there was payment. See Wilson v. Else, 204 Iowa 857; Finley v. Thorne, 209 Iowa 343.
After Mr. Davis died, the appellee first presented his alleged account to the appellant. Before the death of Mr. Davis, appellee was frequently in his office talking to the secretary concerning accounts which appellee held against the clients for engineering services performed. According to the secretary, however, appellee did not claim that Mr. Davis personally owed these accounts. Not only is the foregoing true, but in addition thereto, Mr. Davis, on September 7, 1928, wrote a letter to appellee in which it is indicated that Davis was not indebted to appellee. Said letter rather suggests that appellee was indebted to Davis. In words and figures the letter is as follows:
"Eldora, Ia., September 7, 1928.
Mr. Guy Baker (Appellee), Eldora, Iowa.
Dear Sir:
We have checked up the fees in re. Drainage District #45 a little more closely and find the following:
In regard to the balance owing by F.A. Gogerty as set out in the statement we rendered to you yesterday:
We find that F.A. Gogerty made a claim for meals which you and your men took at his place and that we finally settled with him for the balance due, by accepting a check for $33.00 in full settlement. We endorsed this check which he gave to us and sent the same to you on September 14, 1925.
In regard to the S.H. Brand account: We find that we did not turn over to you your fees of $77.40. There is a balance of $60.00 due us in the Baker Estate matter and the court costs in *Page 1253
this matter are $19.70. We are, therefore, holding this $77.40 to apply on these items."
An admission was made by appellee that he received the foregoing letter on or about the date named therein. Although appellee did receive the letter wherein Mr. Davis suggested that the former was indebted to him, yet, as before explained, no demand had been made upon Mr. Davis by the appellee for the account now in question. It would indeed be inconsistent with appellee's present claim for him to remain silent when receiving the Davis letter wherein it was stated that appellee is indebted to Davis. Notwithstanding, however, that Davis claimed appellee was indebted to him, appellee made no demand upon Davis for the present account, but remained silent until after the latter's death. All these facts and circumstances furnish some substantial evidence of payment.
Of course, appellee presented evidence tending to contradict the aforesaid facts and circumstances, yet the weight of all the testimony was for the jury, and the issue of payment having been raised by the pleadings, the same, together with the aforesaid evidence, should have been submitted to the fact finding body for their determination.
II. By way of reply to appellant's complaint because the court did not submit that issue to the jury, the appellee says that the point was waived. The basis for such contention is that the appellant requested no instructions upon this particular proposition. Manifestly appellee's position is not well-founded. At all times it is the duty of the trial court to submit to the jury issues properly pleaded if they are supported by substantial evidence. A request for instructions is not necessary to have the issues presented. Such presentation must be made regardless of a request. Busch v. Tjentland (182 Iowa 360), supra; Snipps v. The Railroad Company (164 Iowa 530), supra.
If an issue is submitted, although not amplified, and a party desires elaboration, a request for an instruction is necessary. Here, however, we do not have that situation. Before us is a case where the issue was not submitted at all. Necessarily, then, appellant has a right to complain, although she did not request instructions on the subject. Her complaint is not that the issue was not elaborately stated, but rather that it was not presented *Page 1254
at all. Under the circumstances, the appellant was denied the benefits of her defense of payment. There was prejudicial error in this failure.
Wherefore, the judgment of the district court must be, and hereby is, reversed. — Reversed.
FAVILLE, C.J., and STEVENS, MORLING, ALBERT, GRIMM and WAGNER, JJ., concur.
EVANS, J., takes no part.
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In 1918, 1920, and 1924 the defendant county constructed drainage ditches in various districts in Winnebago county, and sold bonds to the plaintiff and others to pay the cost of their construction. Assessments were duly and timely levied against the property in various districts to redeem the bonds when the assessments were collected. The assessments and other general taxes were not all paid and the land was sold to the highest bidder at a scavenger sale and certificates were issued therefor.
The bonds issued were "a lien upon, and * * * payable solely
out of the proceeds of the special assessments * * * levied; * * * and the special assessments were irrevocably pledged. * * * For the performance of all the covenants, recitals and stipulations of the bonds; and for the collection and application of the assessments * * * the faith and resources of said County were pledged."
The facts in the case were all agreed on by stipulation under which it appears that all proceedings in the levying of the assessments, issuing the bonds, collecting that part of the assessments paid, and advertising the sale and selling the land for the unpaid assessments, were all duly made, and were regular, valid, and legal. This action is brought to compel the county to effect a reassignment and repossession of the tax sale certificates under section 7590-c1 of the Code, which authorizes the board of supervisors so to do when the tax sale certificates were issued for less than the amount necessary to pay the outstanding bonds.
The only question for determination, therefore, is whether or not the statute authorizing counties to repossess tax sale certificates is "mandatory" or "permissive" and discretionary only. Section 7590-c1 provides substantially as follows:
"When land in a drainage * * * district * * * is subject to an unpaid assessment and levy for drainage purposes and has been sold for taxes the board of supervisors of that county, * * * may purchase the certificate of sale issued by the county treasurer by depositing with the county auditor the amount * * * *Page 253
to which the holder of the certificate would be entitled if redemption was made at that time, and thereupon the rights of the holder of the certificate and the ownership thereof shall vest in the board of supervisors, * * * in trust for said drainage district."
Section 7590-c4 authorizes the county to issue warrants for said certificates against the drainage district, but if there are not sufficient funds in the district for that purpose the board is authorized to borrow sufficient money for that purpose on a warrant for that amount drawn on the funds of the district.
It was stipulated that the county treasurer advertised the land for tax sale at two successive years, and at a scavenger sale the third year. He sold the land to the persons now in possession of the certificates, and who are now rightfully entitled to apply for a deed. The amount bid was not sufficient to redeem the bonds. The plaintiff offered to loan the county sufficient money on county warrants to enable it to effect a reassignment of all of the tax sale certificates.
The bonds are payable solely out of the proceeds of the special assessment which was a lien on the real estate. The requirements of the bonds were all met by the county, but the amounts received from the tax sales were not sufficient to pay the bonds in full. There was no lack of diligence or negligence on the part of the county, in failing to collect the assessments, and the bonds do not require the county to make up the deficiency. Plaintiff contends that the terms of the statute providing that the county "may" purchase the sale certificates is mandatory, and that the word "may" should be interpreted as "shall" or "must". The solution of this case depends entirely upon the meaning and interpretation of section 7590-c1.
Paragraph 2 of section 63 of the Code provides that:
"Words and phrases shall be construed according to the context and the approved usage of the language."
There are no technical words or phrases presented for construction, and therefore the word "may" as used in this statute must be construed according to the context and approved usage of the word in connection with the subject relating to the purchase of sale certificates. The legislation here contemplated authorizes the county to effect a reassignment of tax sale certificates.
The ordinary meaning of the word "may" is "to have permission; to be allowed; and to have power or ability." *Page 254
The word "may" is sometimes interpreted to mean "shall" or "must", where, from a consideration of the legislation and its context, it appears that the legislature intended to impose a positive duty, rather than a discretionary power. A mandatory construction will usually be given the word "may" when public interests are concerned, but never for the purpose of creating a private right. 59 C.J. 1082, and cases cited.
As a general rule, the word "may" when used in a statute is permissive only and operates to confer discretion. The great weight of American authority is that the word "may" when used in a statute is permissive only, and operates to confer discretion, unless the contrary is clearly indicated by the context of the statute. 59 C.J. 1079, section 635; 39 C.J. 1393; 25 R.C.L. 769, section 16; Downing v. City of Oskaloosa, 86 Iowa 352, 53 N.W. 256; Kelley v. City of Cedar Falls, 123 Iowa 660, 99 N.W. 556; Van Shaack v. Robbins, 36 Iowa 201; Queeny v. Higgins et al.,136 Iowa 573, 114 N.W. 51; Parish Porterfield v. Elwell, 46 Iowa 162; Rowenhorst v. Johnson, 48 S.D. 325, 204 N.W. 173; Henry v. Meade County Bank, 34 S.D. 369, 148 N.W. 626; Wadsworth v. Eau Claire County, 102 U.S. 534, 26 L. Ed. 221; and numerous cases cited in 59 C.J. p. 1079 under section 635.
Sometimes the words "shall" and "must" are considered directory only and not mandatory. State ex rel. Weir v. Davis County,2 Iowa 280; Parish Porterfield v. Elwell, 46 Iowa 162; Jordan v. Wapello County, 69 Iowa 177, 28 N.W. 548.
In Downing v. City of Oskaloosa, 86 Iowa 352, 53 N.W. 256, we said:
"It is insisted * * * that the word `may,' use in the statute, is to be construed to mean `shall' or `must'; that the power therein given is mandatory, and is not simply permissive or discretionary. * * * The rule of construction is well stated in 14 Amer. Eng. Enc. Law, p. 979, thus: `the word "may" in a statute is sometimes used in a mandatory, and sometimes in a directory and permissive, sense. * * * It is only where it isnecessary to give effect to the clear policy and intention of thelegislature that it can be construed in a mandatory sense, and,where there is nothing in the connection of the language or inthe sense and policy of the provision to require an unusualinterpretation, its use is merely permissive and discretionary.'
Black's Law Dict. tit. `May.'" (Italics ours.) *Page 255
The word "may" in the statute there under consideration was held to be permissive and discretionary.
In Kelley v. Cedar Falls, 123 Iowa 660, 99 N.W. 556, we said:
"The controlling question for our determination is whether its provision that `vertical curves of grade "may" be used * * *' was `mandatory' and required that the grade of alleys conform to the natural surface of the ground for the convenience of owners of abutting property, or was permissive and discretionary only. The appellant contends that the provision was mandatory, and that the word `may', as used therein, should be construed `must' or `shall'. The statute provides that words and phrases shall be construed according to the context and the approved usage of the language * * * The primary or ordinary meaning of the word `may' is undoubtedly permissive and discretionary. Century Dict. And in a statute or ordinance it can be construed in a `mandatory' sense only `when such construction is necessary to give effect to the clear policy and intention of the legislature; and where there isnothing in the connection of the language or in the sense orpolicy of the provision to require an unusual interpretation, itsuse is merely permissive and discretionary.' Downing v. City of Oskaloosa, 86 Iowa 352, 53 N.W. 256." (Italics ours.)
In Van Shaack v. Robbins, 36 Iowa 201, loc. cit. 205, we said:
"Where the word [void] is used to secure a right to or confer a benefit on the public, it will, as a rule, be held to mean null and incapable of confirmation. But if used respecting the rightsof individuals capable of protecting themselves, it will often be held to mean `voidable' only. Just as the word `may' will be construed to mean `must' where that appears to be the intent of the statute, and generally, where the public interests and rightsare concerned. * * * But if private rights only are spoken of itwill be interpreted as `may' or `permissive' at discretion."
(Italics ours.)
Statutes authorizing school boards to transport pupils to and from school have quite universally interpreted the word "may" aspermissive and discretionary only. Such cases hold that unless the terms of the statute are imperative, they are usually construed as vesting the school officers with a discretionary power only. Queeny v. Higgins, 136 Iowa 573, 114 N.W. 51; Pasadena High School v. *Page 256
Upjohn, 206 Cal. 775, 276 P. 341, 63 A.L.R. 408; and numerous cases in exhaustive note in 63 A.L.R. 418.
In Rowenhorst v. Johnson, 48 S.D. 325, 204 N.W. 173, the court said:
"It is the general rule, and one which has been recognized by this court, that the word `may' when used in a statute is permissive only."
While the statute authorizes the board of supervisors to effect a reassignment of the tax sale certificates, and while such action might be for the benefit of the bondholders, it cannot be said to be solely for the public benefit. The county would not necessarily receive a benefit from such action, because the drainage bonds are by their very terms payable "solely" out of the proceeds of the assessment levied and collected from the property assessed. The county complied with every requirement of the statute in attempting to collect the assessment levied. It offered the property for sale at three different times. There were no bidders at the first or second sales. Under the statute it was then required to sell at "scavenger sale", the following year. All the necessary steps were taken and notices were duly published before the sale.
The board of supervisors was authorized to purchase the certificates at any one of the tax sales. Section 7589. If the provisions of section 7590-c1 should be considered mandatory, then for the same reason section 7589 should also be considered mandatory. Section 7589, however, cannot be so considered or it would not have been necessary to enact section 7590-c1, authorizing a repurchase of the tax sale certificates. The provisions of that section simply created another method of authorizing the county to purchase the property at tax sale. The authority granted in each of these sections is of a similar import, i.e., each authorizes the purchase of tax sale certificates. The latter section simply extends the authority already granted to include the additional power of purchasing the certificates after a sale to others. If the first section could not be considered mandatory, neither could the second, because both, in effect, grant a similar right. The ultimate purpose of each is to enable the county to get possession of the tax sale certificates if they so desired. Both sections grant a permissive right. There is no language in either making it a positive duty of the county to purchase the tax sale certificates, and without such language, express or implied, the word *Page 257
"may" in section 7590-c1 must be construed as permissive and discretionary only.
Section 7590-c6 makes it the duty of the county treasurer to report immediately all property sold at tax sales for less than the amount due thereon. This statute provides: "The county treasurer shall immediately report that fact to the board of supervisors." Thus by this section the mandatory legislative intent is shown by the use of the word "shall." If the legislature also intended to make the provisions of section 7590-c1 "mandatory", it is reasonable to presume it would also have used the word "shall" instead of "may" in that section.
It does not appear that any public right would be protected by exercising the power of repurchase authorized in either section, and there is no assurance that even private individuals would be benefited thereby, as there is no evidence in the record in any manner tending to show that any more would be realized by a reassignment of the tax sale certificates.
Some doubt might have been cast upon the intention with which the word was used if the bondholders were not enabled to protect themselves; but a sale of this property was duly advertised at three different times. No bids were received at the first two sales, and at the scavenger sale, at the end of the third year, the property was sold to the highest bidder as required by law. Section 7246. Nothing prevented the bondholders individually or collectively from buying the certificates at one of the tax sales. By so doing they would have been enabled directly to receive any and all benefits that could possibly have been derived by the indirect method of having them purchased by the county. As the bondholders had ample opportunity of protecting their own interests by purchasing the property at tax sale, they cannot now complain because the board of supervisors did not do so under section 7590-c1. They were under no obligation so to do. The supervisors might have concluded that the county could sustain a loss by repurchasing the certificates as requested.
In general, statutory provisions directing the mode of proceeding by public officers which, if disregarded, would not injuriously affect the rights of others, are not regarded as mandatory. "Where the words are affirmative and relate to the manner or time in which power or jurisdiction is to be exercised * * * they have been construed to be directory." 25 R.C.L. 769, section 16. *Page 258
Nothing in the context of the act indicates an intent contrary to the ordinary permissive sense in which the word "may" is generally construed.
From the entire context of this act we are satisfied that the word was used in merely a permissive sense.
We believe the judgment of the trial court was correct, and it is hereby affirmed.
ALBERT, C.J., and STEVENS, ANDERSON, KINDIG, MITCHELL, and CLAUSSEN, JJ., concur.
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In November, 1915, at Waterloo, Iowa, Bessie Mason was granted a decree of divorce from the petitioner, Robert L. Mason. She was awarded the custody of their five children, then minors. The decree provided alimony of $25 per week, for the support and maintenance of the plaintiff and the children. The decree was twice modified, first in January, 1921, and again in April, 1923. On September 28, 1928, a citation was issued by Judge Wood, of the district court of Black Hawk County, Iowa, to the petitioner, to show cause why he should not be adjudged guilty of contempt of court for the failure to obey the order of April 17, 1923, concerning the payment of alimony. On October 1, 1928, the petitioner filed an application for a modification of the decree, which application was consolidated with the citation to show cause why the petitioner should not be punished for contempt. The court denied the petitioner's application for a modification of the decree, and found the petitioner guilty of contempt.
I. Limited as we are in certiorari, we will not disturb the finding of the lower court on the question of a modification of the decree of April 17, 1923.
II. It is claimed that an order of court confining a party in jail until alimony is paid, violates Article I, 1. CONSTITUT- Section 19, of the state Constitution, because IONAL LAW: it amounts to imprisonment for debt. This personal, question is fully reviewed and decided adversely civil, and to this contention in Roberts v. Fuller, 210 political Iowa ___. rights: imprisonment for "debt:" award of alimony.
III. The court in its order and judgment provided that if, within five days from the date of the filing of the opinion, Mason paid into court, for the use and benefit of the plaintiff and the minor son, the sum of $250, and deposited with the clerk a bond in the penal sum of $1,000, the terms of which bond would provide security for the payment to the clerk, for the use and benefit of the plaintiff and minor son, on the 1st and 15th of each month, of the sum of $25, the order of commitment to the county jail for contempt of court should be withheld for such times as the bond above referred to remained in force and *Page 776
effect and such payments were made. The petitioner indulges in an extensive argument against the power of the court to make an order requiring the posting of a bond. We do not decide any question raised upon this part of the order, for the reason, among others, that manifestly it was a mere option or election given to the petitioner, which the petitioner did not accept, and for that reason, if for none other, the whole matter is now moot.
IV. A part of the court's finding is as follows:
"It is, therefore, the finding of this court that the defendant has willfully and premeditatedly failed to obey the orders of this court in relation to the payment of 2. CONTEMPT: alimony, and that the defendant is in contempt power to of the orders of this court. It is, therefore, punish and the order of this court that the defendant be proceedings confined in the county jail of Black Hawk County therefor: until such time as he complies with the order of certiorari: the court made by the Honorable E.B. Stiles, review of and that he be so confined until such back finding of payments of alimony are paid into the hands of contempt. the clerk of this court."
This court said, in State ex rel. Hammond v. Hamilton, 200 Iowa 343
:
"The judgment of the lower court does not, in such cases, possess, in full measure, all the attributes of the verdict of a jury. Nies v. Anderson, supra [179 Iowa 326]; Schraeder v. Sears,
supra [192 Iowa 604]; Arcuro v. Utterback (Iowa), 195 N.W. 734 (not officially reported). But, on the other hand, the case is not triable here de novo; and the findings of the trial court are entitled to weight in our consideration of the questions of fact presented by the record, especially where the testimony is conflicting, and much depends upon the credibility of the witnesses. Cheadle v. Roberts, 150 Iowa 639; Dutton v. Anderson,163 Iowa 613; Nies v. Anderson, supra; Rist v. District Court,162 Iowa 244; Sawyer v. Hutchinson, 149 Iowa 93; McNiel v. Horan,153 Iowa 630; Arcuro v. Utterback, supra."
In Andreano v. Utterback, 202 Iowa 570, the holdings of this court in reference to the force and effect of the finding *Page 777
of the lower court and the practice in certiorari are collected and reviewed, and the following rule announced:
"Clearly, the finding of the court that a contempt has been committed is not conclusive on review, and, if it appears from all the facts, as shown by the return, that the act charged and found does not constitute a contempt, the writ issued by this court will be sustained. The findings and decision of the lower court should not be `lightly reversed,' but the guilt of the accused must be shown by clear and satisfactory evidence. This makes it unnecessary to state the governing rule by way of comparison to a jury verdict. The search is to find the evidence to sustain the act charged, and it is for this court to say, having due regard for the findings of the lower court, but without viewing the findings as conclusive, whether or not the facts in any case before us clearly and satisfactorily establish and constitute the contempt."
See, also, St. George's Society v. Sawyer, 204 Iowa 103, in which, in a certiorari proceeding, this court said:
"The findings made by the respondent court are not conclusive on review, but it is for this court to say, having due regard for the findings of the lower court, whether the facts clearly and satisfactorily establish and constitute the contempt."
The only witnesses before the court on behalf of the complainant were Bessie Mason, the plaintiff in the divorce proceedings, and Robert Mason, a son, then 15 3. DIVORCE: years of age. On behalf of the defendant, the alimony, only evidence was that of Robert L. Mason, the allowances, petitioner. At the time of the hearing in and October, 1928, two of the children were still at disposition home with Mrs. Mason. The daughter Helen was of property: then 19 years of age, and Robert 15. The financial daughter, prior to that time, had occupied a inability clerical position in Ottumwa, and at the time of to pay the hearing, was employed in Waterloo. The son alimony: Robert was attending high school, but worked in contempt. the summer time.
The record discloses that the complainant has been compelled to work, a portion of the time, and has at other times *Page 778
been handicapped by illness. She and the youngest son were, at the time of the hearing, living in very poor quarters, deprived of most luxuries, and some of what many people would regard as necessities. There had been a failure on the part of the petitioner to make all the payments of alimony as specified in the decree. This had been going on, to a greater or less extent, for years. At different times, stipulations had been entered into, whereby the amount specified in the decree was reduced, but even these reduced payments were not regularly paid.
On the other hand, the testimony disclosed that, at the time the original divorce was granted, the petitioner had no property and no money. In fact, he had no well defined trade or occupation. He had been, prior to the divorce, engaged in a more or less unstable advertising business. It appears without contradiction that, at times, before the divorce, petitioner was so unsuccessful that some of the family furniture had to be sacrificed. Moreover, there is neither charge nor proof of any kind that, either before or after the divorce, petitioner's failure to produce was the result of either bad habits or shiftlessness.
The petitioner married again, about a year after the divorce. The present wife had, at the time of the marriage, and still has, some property. The record shows, on the part of the petitioner, a more or less unfortunate career of failure. He has been engaged in various enterprises, having to do more or less with advertising and circularizing, but the net profits have been very meager. A portion of the time, the petitioner has worked for his wife, on a salary. While not thus engaged, he has been much of the time away from home, canvassing, and conducting advertising schemes. Part of the time, he had one of the boys with him, engaged in this advertising work, but they were unsuccessful. The petitioner related at great length what he had been doing, and the results thereof. He testified several times that he had paid every dollar he could pay on alimony.
There is no evidence in the record even tending to show that the petitioner has had or now has any property, or even any money. True, he has had small amounts, from time to time, a substantial portion, if not all, of which he has sent in payment of alimony. The petitioner does not even own an *Page 779
automobile, new or secondhand, and is not shown to have expended money for any luxuries. On the record, he appears to be just another unsuccessful man. The record does not show that he has deliberately and willfully violated the orders of the court in relation to the payment of alimony.
V. This case has previously been before this court. Mason v. District Court, 227 N.W. 517. On the former 4. CONTEMPT: hearing, the submission was set aside. At that power to time, as the record appeared, the trial court in punish and his findings referred to a telephone proceedings conversation between the petitioner and therefor: respondent, but the record contained no further evidence: evidence of said conversation. This court said: facts personally known to judge, but not made of record.
"It does not appear in the abstract whether the facts personally known to the trial judge were made of record. This would be essential to a proper review of the case, and essential likewise to the validity of the order of commitment."
On January 13, 1930, the appellees filed in this court what is denominated an additional abstract of the record, which contains a statement to the effect that, on January 9, 1930, the learned trial judge filed in the office of the clerk of Black Hawk County, Iowa, a statement, to be considered as filed October 5, 1928, in which the court said, in substance, that, when the petitioner was arrested on citation, and while he was still in the county jail, the petitioner called the respondent judge on the telephone, and asked to be permitted to give to the sheriff a check, in lieu of bail of $500; that the respondent judge asked the defendant if he had money in the bank, and the petitioner said that he and his wife had the money in the bank; that, upon further questioning, the petitioner said that the money was in his wife's name, and that he, the petitioner, had been drawing checks upon it, by arrangement with his wife, and that it was all right for him to issue the check in question, — that the account contained twice the amount of the $500 bond.
The only evidence in this record on the subject appears in cross-examination, when the petitioner was asked whether he had told Judge Wood that he (petitioner) had authority to check on this account in his wife's name, and he emphatically *Page 780
denied that he had so stated, and further testified that he couldn't give a check upon that account without permission from his wife. He further testified, in answer to a question whether he had told the court he had authority to draw on the account, as follows:
"No, sir, I didn't say that. I telephoned for her authority. She wasn't home, and the bank told me that they wouldn't accept a check signed by me unless it was `O.K.'d' by her."
It will be noted that the record made on the hearing contains no evidence whatever that the petitioner had advised Judge Wood over the telephone to the effect that the petitioner and his wife had money in the bank, or that he, the petitioner, had authority to draw on that account. What the trial court secretly knew did not become a part of the record. Section 12548, Code, 1927;Crosby v. Clock, 208 Iowa 472; Sergio v. Utterback, 202 Iowa 713;Storie v. District Court, 204 Iowa 847.
Section 11265 of the Code of 1927 provides as follows:
"The judge of the court is a competent witness for either party, and may be sworn upon the trial. In such case it is in his discretion to order the trial to be postponed or suspended, and to take place before another judge."
Moreover, it matters not how much money or property the petitioner's wife may have. The fact that she has, as the record shows, issued some of the checks which have been used in the payment of alimony, is not material. The question here is whether the petitioner is able to pay, and if able to pay, whether he has willfully and deliberately refused to obey the orders of the court in the matter of payment of alimony. As was said in Peel v.Peel, 50 Iowa 521:
"Misfortune, mistake, inability arising from disease of mind or body, or from poverty, if shown as the reason of nonpayment, would surely have purged defendant from contempt."
The petitioner has never been successful. However, so far as the record shows, he has been diligent and hard-working. A careful examination of the entire record leads to the conclusion that it fails to show a proper basis for the contempt order made by the learned trial judge. It follows that the writ must be, *Page 781
and is, sustained, and the petitioner is discharged from the contempt order. — Writ sustained.
MORLING, C.J., and EVANS, FAVILLE, and KINDIG, JJ., concur.
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This case is before us on rehearing, granted in order that the court might receive additional argument and give further consideration to the question whether the case should have been submitted to the jury.
The main question is whether the purported consent of the defendant to an assignment of the policy before loss, indorsed upon the policy by defendant's agent, is binding on defendant. *Page 1292
1. INSURANCE: The policy covered a stock of merchandise and agents: fixtures, and was issued to the then owner, unauthorized Fett. Fett sold out to plaintiffs, and assigned act: failure the policy to them October 1, 1918. Land was to defendant's local agent. Land, under date of repudiate. October 1, 1918, indorsed upon the policy, and signed as agent, defendant's purported consent to the assignment in proper form. Defendant's contention is that Land was only a soliciting agent, and exceeded his authority in giving the consent. Plaintiffs plead the consent as having been made and approved by defendant, and plead also waiver and estoppel. The allegation that the act was performed by the defendant is supported by proof that it was performed through an agent, and the act of the agent ratified. McColl v. Jordan, 200 Iowa 961;Long v. Osborn, 91 Iowa 160. We assume, for the purpose of the appeal, that Land was only a soliciting agent, and that, merely as such, he had no authority to consent to the assignment. He was, however, the local agent of the defendant, and the policy was issued through him. A loss occurred October 7, 1918. On the same date, Land notified defendant's general agent thereof, and asked him to send an adjuster. We will, for convenience, speak of the transactions had with the general agent as having been with defendant, as no question arises concerning his authority. On October 11, 1918, defendant referred the loss to Carl Miller, an independent adjuster. Miller proceeded to make a personal inspection and investigation, in the course of which he was shown the assignment and the indorsement of consent. On October 20, 1918, Miller made a written report to the defendant. In this report the plaintiffs were named as those with whom the negotiations for adjustment were being carried on, and who said that the companies would have to settle with their attorney; but in it the assignment and consent were not mentioned, Miller assuming evidently that defendant knew about them. The defendant's claim is that it did not then have such knowledge. On October 23, 1918, Mr. Hart, attorney for the plaintiffs, wrote defendant:
"Messrs. L. Terry and H. Rosenberg have employed me to take charge of claim against you under your policy No. 94678, bearing date March 4, 1918, issued by and through Luana, Iowa, agency, by W.F. Land, agent to R.W. Fett, and by R.W. Fett transferred with sale of property to Messrs. Terry Rosenberg, *Page 1293
and under which a fire loss was recently sustained. * * * the amount tendered in payment of damage sustained was so insignificant and out of proportion with loss actually sustained that Messrs. Terry Rosenberg could not accept same. They have now turned the policy over to me, with instructions to * * * take the necessary steps to enforce payment * * * Will you give this matter your earliest practicable attention * * * "
It will be noted at this point that the adjuster employed by the defendant to give attention to this particular loss knew of the assignment of the policy and of the giving in form of defendant's consent thereto by defendant's agent. Defendant also, through its general agent, knew from Mr. Hart's letter that the insured had sold the insured property to plaintiffs and transferred the policy with the property to them, and that it was because thereof that the plaintiffs were claiming the insurance. The knowledge thus acquired by the adjuster was the knowledge of the defendant. Hemmings v. Home Mut. Ins. Assn., 199 Iowa 1311, and cases cited; Allen v. Phoenix Assur. Co., 14 Idaho 728 (95 P. 829); Western Reciprocal Underwriters' Exch. v. Coon,38 Okla. 453 (134 P. 22); Corson v. Anchor Mut. F. Ins. Co.,113 Iowa 641. In its further dealings with the plaintiffs or their attorneys, the defendant was chargeable with the knowledge of Miller and of the general agent, whether those representatives knew of each other's knowledge or not. Smeesters v. New DenmarkMut. H.F. Ins. Co., 177 Wis. 41 (187 N.W. 986). It must be remembered also that Land was the defendant's agent, and acting as such in consenting to the assignment. The case is not that of one acting voluntarily, or an intruder acting wholly without authority, but that of an agent, who, while acting for his principal, is claimed by his principal to have exceeded his authority. The defendant, charged as it was with knowledge of the sale of the insured property and of the assignment to the plaintiffs and the consent given by its agent, and of the fact that the assignee, through such assignment and consent, was claiming the rights of owner and of insured in the property and the loss sustained, and charged with knowledge that its agent had given the consent, and that in doing so he had exceeded his authority (if such was the fact), was put to its election whether to confirm or repudiate its agent's act. The defendant would not be permitted to play fast and loose with *Page 1294
the plaintiffs, to blow hot and cold, to recognize the assignment and the policy as being in force, induce the plaintiffs to act accordingly, and later repudiate the act of the agent. If the defendant desired to escape liability for the act of its agent, it was bound to disavow such act promptly after it came to its knowledge. Failure to do so would operate as a ratification.Argus v. Ware Leland, 155 Iowa 583; Story County Tr. Sav.Bank v. Estate of Youtz, 199 Iowa 444, 447; Windahl v.Vanderwilt, 200 Iowa 816, 823. In this situation, under date of October 28, 1918, the defendant replied to Mr. Hart's letter as follows:
"This acknowledges receipt your letter of the 23rd relative to claim, loss and damage to the property described under policy No. 94678 — R.W. Fett, and in reply beg to say that you will find the policy in question provides the manner and form in which any claim for damage should be made, and if there is any loss and damage claimed or sustained to the property for which claim is made, then such claim should be presented in accordance and with the terms and conditions of the policy."
This letter is a plain recognition of the policy as still in force, and an invitation for the presentment of claim, — that is, proofs of loss in accordance with its terms. The defendant did not, in any communication with plaintiffs or their attorneys, disavow the consent or deny Land's authority or question the continued existence of the policy. It appears from the record that the point of disagreement between the adjusters for the defendant and the other insurance companies, on the one hand, and the plaintiffs, on the other, was the amount of the loss; and it appears from the correspondence between defendant and its adjuster that absence of authority in Land to consent to the assignment was, as between them (not, however, communicated to plaintiffs), to be made use of only in the event that plaintiffs would not make what defendant would regard as a reasonable settlement. In the course of this correspondence, and under date of November 7, 1918, Miller informed defendant specifically of the assignment and consent. On November 9, 1918, defendant wrote the adjuster:
"You understand that this agent at Luana is a mere soliciting agent * * * I don't believe his acknowledgment to an assignment would be good, but as stated if he made the acknowledgment *Page 1295
we would be willing to recognize it if the assured comes off his high horse and will recognize the loss in proper frame of mind. I am willing to leave it to you."
A number of letters between plaintiffs' attorney and the defendant followed, in none of which was there any question or repudiation of Land's consent to the assignment. On December 4, 1918, plaintiffs furnished to defendant proofs of loss. During this period, the negotiations between the company and plaintiffs appear to have been limited to a discussion of the question whether one of the adjusters represented defendant, and the amount of the loss. In the course of this correspondence, defendant, in a letter to Mr. Hart, denied that one Allen was authorized to represent it. In a letter dated December 9, 1918, by defendant to Miller, it says:
"Our suggestion therefore was to say nothing about our policy whatever and to take no action * * * We are holding in abeyance the alleged notice of loss and alleged proof of loss that has been submitted by Terry Rosenberg and we shall reply to it in effect that our policy is in the name of R.W. Fett and there was no assignment. Perhaps this may ultimately raise the question of the validity of the assignment * * * "
On December 10, 1918, Mr. Hart inquired of defendant whether Miller represented it. On December 31, 1918, defendant wrote a letter to plaintiffs as follows:
"A document dated Waukon, Iowa, December 4, 1918, and signed `L. Terry and H. Rosenberg by L. Terry' was received at this office and which document as we take, alleges of a certain fire loss and damage to the property described under `policy No. 94678 of the American Insurance Company of Newark, New Jersey,' and in reply of acknowledgment of receipt by us of said document, we take the liberty of advising that we do not appear, according to the records of this office, to have any policy of insurance of such number in said names; that the only policy we have of said number, 94678, of the Luana, Iowa, agency, is the name of R.W. Fett, of which you will kindly please accept notice."
On this record, it is uncontrovertible that the defendant did not promptly repudiate its agent's act, but, on the contrary, that, in its dealings with the plaintiffs, it recognized the contract as in effect. Ratification is equivalent to prior authority, and *Page 1296
makes the unauthorized act effective from the time it was done.Long v. Osborn, 91 Iowa 160; 2 Corpus Juris 516. Ratification cannot be recalled, or the agent's act, after ratification, repudiated. 2 Corpus Juris 519. Moreover, defendant was purposely refraining from denying the validity of the consent to the assignment. While the position which it took with plaintiffs was intended to be equivocal, the effect of its action was to distract the plaintiffs' attention from any alleged invalidity of the policy, and to cause them to make proofs of loss and bring suit on the induced assumption that the policy was in effect.Huff v. Century Fire Ins. Co., 136 Iowa 464; Farmers' Milling Co.v. Mill Owners Mut. Fire Ins. Co., 127 Iowa 314.
We see no reason why the ratification should be invalid because given after the fire occurred. The property was not destroyed. It was merely damaged. The subject-matter of the policy had not, as defendant contends, ceased to exist. Many considerations might be taken into account by the defendant in determining whether it should ratify or disaffirm. These considerations were for the defendant, in making its determination, and not for the court. Ratification after loss was valid. Huff v. Century Fire Ins. Co.,136 Iowa 464; National Fire Ins. Co. v. Oliver (Tex. Civ. App.), 204 S.W. 367; Northern Assur. Co. v. Grandview Building Assn.,183 U.S. 308 (46 L. Ed. 213); Western Reciprocal Underwriters'Exch. v. Coon, 38 Okla. 453 (134 P. 22); Ferrar v. WesternAssur. Co., 30 Cal. App. 489 (159 P. 609); Marqusee v. HartfordFire Ins. Co., 119 C.C.A. 251 (198 Fed. 475, 42 L.R.A. [N.S.] 1025); Todd v. German American Ins. Co., 2 Ga. App. 789
(59 S.E. 94); Boutwell v. Globe Rutgers F. Ins. Co., 193 N.Y. 323
(85 N.E. 1087). Defendant's contention that the rights of the parties became fixed at the time of the fire, and its citation of Hall v.Fire Assn. of Philadelphia, 64 N.H. 405 (13 A. 648), are irrelevant. In that case the policy was made payable to a mortgagee. After the property was destroyed, defendant, by agreement with the insured, without the mortgagee's knowledge or authority, referred the question of loss to a referee. It was merely held that, when the loss occurred, the mortgagee's rights were fixed, and could not be defeated or adjusted by agreement with the insured.
We are of the opinion that the defendant must be held to have ratified the act of its agent in granting its consent to the *Page 1297
assignment of the policy. Further, if the question were one of forfeiture, then, on the facts related, defendant ought not to be permitted to deny that the assignment and consent were in full force and effect, or that the policy, so far as Land's authority was concerned, was a valid contract in the hands of the plaintiffs. Petroff Co. v. Equity Fire Ins. Co., 183 Iowa 906, 914; Griffith v. Anchor Fire Ins. Co., 143 Iowa 88; Hollis v.State Ins. Co., 65 Iowa 454; Brown v. State Ins. Co., 74 Iowa 428; Lutz v. Anchor Fire Ins. Co., 120 Iowa 136; Huff v. CenturyFire Ins. Co., 136 Iowa 464.
As has been noted, the letter of October 28, 1918, was, in effect, an invitation to furnish proofs of loss and a recognition of the policy as an existing contract. The plaintiffs went to the trouble and incurred whatever expense might be involved in furnishing proofs. The other letters written to plaintiffs and their attorney, in dealing with the question whether Allen or Miller was in the defendant's employ, carry with them the assumption that plaintiff's rights might depend upon that (the latter) question. The letter of December 31, 1918, if it raises any question at all, merely objects that the designated policy is in the name of Fett, and that the company's records do not show any policy in the name of the plaintiffs. It in no wise suggests any lack of authority on the part of the local agent to consent to an assignment, or any claim of invalidity because of the absence of assignment and consent. If the letter may be construed as a refusal to pay, it is upon the ground that Fett was the insured in the policy named, and entitled to the insurance, and not the plaintiffs.
While we have discussed the case principally with reference to the question whether the allegation that the defendant consented to the assignment is supported by the proof, we are of the opinion that, under the facts, and for analogous reasons, the defendant has waived the right to assert that the contract had terminated because of inadequate authority in its agent to consent to the assignment, and that, by recognizing the contract to be in effect, inviting proofs of loss, and giving as its only excuse for not paying, the fact that the policy was in the name of Fett and that its records did not show any policy of that number in the names of the plaintiffs, thereby in effect stating its reasons for its action, it is estopped, after suit is brought, from *Page 1298
mending its hold and setting up as a defense that the policy was assigned by Fett to the plaintiffs and that the assignment voided the policy because its agent exceeded his authority in consenting to it. Huff v. Century Fire Ins. Co., 136 Iowa 464; Farmers'Milling Co. v. Mill Owners Mut. Fire Ins. Co., 127 Iowa 314; and other cases above cited. The question of ratification, the question of waiver (ordinarily the intentional relinquishment of a known right, and involving knowledge and 2. INSURANCE: intention), and the question of estoppel, agents: involving reliance by the opposite party, are unauthorized usually for the jury. Ordinarily, different act: waiver minds might come to different conclusions on the per se. evidence presented on such questions. Here, it is undisputed that Land was defendant's agent, and countersigned the policy. He was furnished with matter advertising him as agent. The defense is merely that he exceeded the limitations upon his authority. It is undisputed that defendant acted with full knowledge and intentionally, and that the attitude assumed toward plaintiff was intentionally taken. One is presumed to intend the natural consequences of his own acts. His intention, as respects his relation to others, is to be determined by his acts, and not by what he may have secretly, in his own mind, intended. The facts and circumstances are established without conflict, and the question of waiver is, on the record in this case, one of law, and was properly ruled as such. Swedish Am.Nat. Bank v. Koebernick, 136 Wis. 473 (117 N.W. 1020); Foiles v.Detroit Fire M. Ins. Co., 175 Mich. 716 (141 N.W. 879); Holt v.New England Tel. Tel. Co., 110 Me. 10 (85 A. 159); Rogers v.Whitney, 91 Vt. 79 (99 A. 419); Pittsburg Const. Co. v. WestSide Belt R. Co., 227 Pa. St. 90 (75 A. 1029); Helvetia SwissFire Ins. Co. v. Allis Co., 11 Colo. App. 264 (53 P. 242);Harlow v. Jaseph, 183 Mich. 500 (149 N.W. 1047); Sovereign Campof W.O.W. v. Smith, 22 Ariz. 1 (193 P. 758); Warner v. Hill,153 Ga. 510 (112 S.E. 478); Holland v. Blanchard (Tex. Civ. App.), 262 S.W. 97.
We have assumed, for the purpose of the discussion, that Land, though defendant's agent, exceeded his authority originally in giving consent. It is, therefore, unnecessary to consider questions raised as to the admissibility of evidence bearing on his authority, or the point that the extent of Land's authority was a question for the jury. *Page 1299
The judgment is — Affirmed.
EVANS, C.J., and STEVENS and ALBERT, JJ., concur.
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In June, 1919, the deceased, Peter Schram, entered into a contract of purchase from the claimant, Kissinger, of a tract of land in Nebraska, containing slightly less than 480 acres, at the price of $40 per acre, amounting to a sum total of $19,100. $2,100 of the agreed price was paid. The contract was to be fully performed on March 1, 1920. Of the purchase price, $8,000 was to be obtained by Kissinger by means of a first mortgage loan upon the tract. The tract was to be conveyed subject to this mortgage on March l, 1920, upon which date Schram was to pay the balance of the purchase price. Schram died in October, 1919, leaving a family of five minor children. Walling was appointed as executor in December. The statutory period of one year for filing claims expired December 2, 1920. This claim was not filed until June, 1924. There was no lack of knowledge on the part of Kissinger concerning the death of Schram and the progress of the administration of his estate.
The equitable circumstances relied on in the application *Page 326
presented by him may be summarized as follows: (1) That the executor Walling had promised to file the claim; (2) that the claimant supposed that such claim had been filed by the executor; (3) that the estate is still open and unsettled, and that the allowance of the claim would work no injury to any other person.
The evidence does not sustain the foregoing grounds. The argument for claimant is predicated only on statements contained in the brief itself. The facts appearing in the record are that, prior to March 1, 1920, both Walling and Kissinger believed that the land was worth more than $40 an acre, and that the interest of Kissinger would not be subserved by filing any claim. He held the legal title to the land and the possession thereof, and he has continued to so hold ever since. He was protected by a forfeiture clause in the contract. To avoid a forfeiture, Walling paid, on February 27, 1920, $2,700. At a later time, and long after the expiration of one year, he paid the further sum of $500. Walling listed the contract in his inventory as "personal property." He proposed that Kissinger should sell and convey the land to some other purchaser. Kissinger assented to this, with the understanding that he should receive one half of the profits in the transaction. When he failed to find a suitable purchaser at the price ($50 per acre), the oral agreement was modified to the effect that, in the event of a sale by Kissinger, he should receive all the profit. At this stage, Walling was content if he could save the estate from loss. No purchaser was found at any price. At the hearing below, the claimant introduced evidence of the present value of the tract at from $35 to $40 per acre. The contention for the appellee in argument is that the allowance of this claim against the estate would render it insolvent. But the record itself does not disclose either the assets or the net worth of the estate. On the other hand, the claimant has not shown that the allowance of his claim would not operate to the prejudice of other creditors.
No other inference is fairly deducible from the actual record than that Kissinger knew at all times that his claim was not filed, and that he relied primarily upon the security of his contract. He has received $5,300. The contract has been subject *Page 327
to forfeiture at all times since March 1, 1920, and is subject thereto now. According to the testimony introduced by him, the land is now worth the original contract price. The executor deems it to be worth much less, and deems it to the interest of the estate to suffer a forfeiture of the $5,300 paid.
We deem it clear, upon the record, that at no time during the year for filing claims did Kissinger intend to file his claim, or deem it to his interest to file the same. He has not at any time been deceived or mistaken as to any material fact pertaining to his rights. The only surprise which he has suffered has been the persistent depreciation in the value of the subject-matter of the contract.
The claimant's special reliance for authority in support of his claim is Wilcox v. Jackson, 57 Iowa 278. We find no substantial support for him in the cited case. In that case, the claimant did have reason to believe that his claim had been filed within the initial six months. He did file it later, before the expiration of one year. He was unable to bring the claim to a hearing within the one year, because the executor of the estate interposed a defense, and because the trial docket of the court and the pending cases thereon took priority over the claimant's case, and rendered it impossible for him to bring the same to a hearing.
On the other hand, the following cases are more to the point, and are quite controlling against the claimant: In re Estate ofFatland, 197 Iowa 1231; Bentley Olmstead v. Starr, 123 Iowa 657; Colby v. King, 67 Iowa 458.
We think that the trial court properly denied the application for leave to file.
Its order is, accordingly, — Affirmed.
De GRAFF, C.J., and ALBERT and MORLING, JJ., concur.
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Plaintiff demised the premises to defendant by lease dated September 20, 1928, for the term beginning September 19, 1928, and ending March 1, 1932, on shares, and for annual cash rent for pasture after the season of 1929. The lease provided:
"First party [landlord] has the right to cancel this lease and the second party [tenant] may also in case the farming conditions are not satisfactory, the cancellation to be by written notice and to become effective on March 1, 1930, or March 1, 1931."
The petition alleges that:
"On the 30th day of July, 1929, the plaintiff, said first party in said lease, had become greatly dissatisfied with the defendant as a tenant on said premises, and with his manner or method of farming the same and the results obtained, and was not satisfied with the farming conditions on and relating to said premises; and by reason of said farming conditions' not being satisfactory to the plaintiff, he did, on the 30th day of July, 1929, serve a written notice upon said defendant, canceling and terminating said lease, the same to become effective on March 1, 1930. * * * That the plaintiff also on the 23rd day of January, 1930, gave the defendant notice in writing that said written lease would be finally and fully terminated and canceled by the plaintiff, on the first day of March, 1930; and also therein notified the defendant to quit and surrender possession to him of all of said premises on the first day of March, 1930."
The copy of the notice attached to the petition states:
"You are hereby notified, as provided by stipulation in the lease, * * * that said lease is canceled and terminated, effective March 1, 1930, the farming conditions not being satisfactory with the undersigned."
Surrender March 1, 1930, was demanded.
Defendant moved to require plaintiff to make his petition more specific by setting out his reasons for his alleged *Page 1269
dissatisfaction and for attempting to cancel the contract. The court sustained the motion. The plaintiff elected to stand on his petition, and refused to plead further, and his petition was thereupon dismissed.
It is to be observed that the right reserved was to terminate the contract relations. It is not contended that the right was not reserved to both parties. The right reserved was to cancel the lease "in case the farming conditions are not satisfactory," — meaning, not satisfactory to the promisor who should choose to exercise the option. Though the rule is different in some jurisdictions, in this state, under a provision such as this, entitling the promisor to reject or annul if he is dissatisfied, he is the exclusive judge of whether or not he is dissatisfied, unless he acts in bad faith. If dissatisfied, he is not deprived of the benefit of the reserved right merely because a reasonable person ought to be or would be satisfied. It is only required that he act honestly and in good faith in his determination.Balcom v. Serenado Mfg. Co., 193 Iowa 668; McCormick Harv. Mach.Co. v. Okerstrom, 114 Iowa 260; Haney-Campbell Co. v. PrestonCream. Assn., 119 Iowa 188; Stotts v. Miller, 128 Iowa 633;United States Tr. Co. v. Incorporated Town, 181 Iowa 992; InmanMfg. Co. v. American Cer. Co., 124 Iowa 737.
Bad faith is not presumed. The notice of election to cancel was given seven months in advance, and the notice to vacate more than a month in advance, of the time when the cancellation was to be effective. On the face of the petition, plaintiff was dissatisfied, and his election to cancel and the notice were fair, and in apparent good faith. Plaintiff was not required to set out his reasons for dissatisfaction. On the face of the petition, the plaintiff had the right to determine whether or not "the farming conditions" were satisfactory to him; and, on his determination, made in good faith, that they were not satisfactory, he had the right to cancel the lease, as he did. On the allegations, it must be held that "the farming conditions [were] not satisfactory" to plaintiff. Presumptively, he acted in good faith. Consequently, on the face of the petition, he rightfully canceled the lease. He was not, as the case stood at the time of the ruling on the motion, required to submit the reasonableness of his action and the grounds of his dissatisfaction as an issue for the determination of the triers of fact. Defendant *Page 1270
relies upon Barr v. Van Duyn, 45 Iowa 228, and Clark v. Kelly
(Iowa), 109 N.W. 292 (not officially reported). While there is language in these cases somewhat inconsistent with our other cases above cited, such language cannot be held to correctly declare the law of Iowa.
Defendant argues that forfeitures are not favored. No question of forfeiture is involved. The motion involved more than the discretion of the court. It asked that the plaintiff be required to tender an issue which did not devolve upon him. The motion should have been overruled. — Reversed.
EVANS, STEVENS, De GRAFF, ALBERT, KINDIG, WAGNER, and GRIMM, JJ., concur.
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This cause presents the familiar picture of an automobile accident occurring at an intersection. It calls for the announcement of no new principles nor the extension of those heretofore laid down by us. For this reason we purposely refrain from analyzing the numerous cases cited by the parties hereto. These have been spread upon our records in recent years so frequently that "he who runs may read."
This accident occurred at the south edge of the city of Des Moines, at the intersection of McKinley avenue and South Union street. McKinley runs east and west, and South Union north and south. At the time of the accident, Colonel King, plaintiff's husband, was approaching the intersection from the north, his wife sitting beside him. His approach was upgrade, and, according to his testimony, he was driving at a speed of between 35 and 40 miles an hour. As he entered the intersection, the defendant came from the west on McKinley avenue. Defendant's approach was down a slight decline to the intersection. He was driving a gravel truck which, with its load, weighed approximately 10,000 pounds. The King car was a 1935 Chevrolet sedan. Its weight is not stated.
There is no direct conflict in the testimony of the principals to the accident because it happened so suddenly that neither *Page 892
could cast much light on the movements of the other; and the arguments of the parties are devoted largely to drawing inferences from what plaintiff terms the "physical facts." While numerous cases have been cited by both parties, there is really little, if any, difference between them as to the rules of law applicable to accidents of this kind. Their differences arise from the deductions which they make from the circumstances disclosed by the record.
Without attempting to give the many details which may be found in the testimony of Colonel King (plaintiff's husband), this, in substance, appears to be his version of the accident:
He had never driven over this road before. As he approached McKinley avenue from the north he came by way of "quite a steep grade." On the morning of this accident, June 23, 1936, as he was going south on South Union street, the uphill road upon which he was proceeding was lined on both sides with undergrowth, brush, and saplings, with high weeds on both sides. He testifies that he had no knowledge that there was an intersection at the top of the hill, and saw neither it nor a stop sign which was located approximately 30 feet north of the graveled portion of McKinley avenue. Quoting him as to the method of his approach, he says:
"I wasn't looking for a stop sign as I was watching the road straight ahead. As I was driving down South Union Street I was watching the road ahead. I wasn't gazing around looking at the scenery, and the road comes right over the top of the hill. I didn't notice or see the intersection until I was right on it. I was into the intersection when there was a — just a sort of a flash out of the tail of my eye and something struck me from the right rear, hit my car on the right rear corner."
According to his, and other, testimony, his car proceeded from 80 to 90 feet after the collision and landed on its right side on the east side of South Union street, and to the south of the intersection where the collision occurred. According to his view the truck went about 30 feet down a slight grade and stopped. The truck was not overturned and the gravel it was carrying remained undisturbed until dumped before the truck was taken away.
Plaintiff adds nothing to this testimony beyond saying that she could not see the intersection and saw no stop or other sign *Page 893
as they approached the intersection. The accident occurred so suddenly that she was unable to cast much light upon it.
This, in substance, constitutes plaintiff's case. There are, of course, many incidental features not here set out, and which plaintiff claims were sufficient to have carried the case to the jury.
Turning then to defendant's testimony, it appears that he was thoroughly familiar with this intersection; in fact, he had been engaged for several weeks, and was then engaged, in hauling gravel for the repair of McKinley avenue. A fellow-worker, one Hartley, was driving behind defendant at a distance of about 20 or 30 feet. Hartley says that defendant came into the intersection so slowly that he (Hartley) had to come to a stop; that as defendant got into the intersection and into the traffic lane north and south, a car "shot through like a flash" and struck defendant right in the front part of the truck. This witness goes on to describe a second contact, and the final release of the car and its passage to the point where it turned over. He claims to have talked with plaintiff's husband, who, he says, admitted that he was going pretty fast, but claimed he could not see the stop sign or the intersection. This witness made no attempt to go north of the stop sign which he said was there, but he knew of its presence and testifies that there was quite a bit of brush along the road at that point. It is his view, contrary to that of plaintiff and her husband, that the intersection could be seen without any trouble whatsoever. This witness further testifies that the horn signalled as the defendant slowed down at the intersection. He differs somewhat in his statement of the distances given by plaintiff's husband in this: That he says the cars were 60 to 70 feet apart when they came to rest, and that it was 119 feet from where the accident started.
The defendant admits the driving of the truck involved and makes no denial of his familiarity with the crossing. He says the accident happened on a bright, sunshiny morning. He knew of the stop sign at the northwest corner of the intersection, which he located about 30 feet back from the edge of the gravel. As he came to the corner he "tooted" his horn from one to two or three times. He heard no signal from any other vehicle, and as he entered the intersection looked north and saw a car about 100 feet or so away. He was just about in the right-hand wheel track when he discovered that the approaching car was not *Page 894
going to stop. At that instant the two cars came together. The truck was taken out of its course and came to rest at approximately the southeast corner of the intersection, where it broke a stop sign. The defendant said that as he entered the intersection he was going not over three or four miles an hour; and that plaintiff's husband did not veer his car or change its course from the time defendant saw him until the crash came. It is his testimony that three or four miles an hour was about as fast as he could go, and that he entered the intersection at about that rate of speed; that he brought his truck to practically a stop before going across the west line of the intersection, and kept going until he saw that the King car was not going to stop. At that instant the collision occurred, with the resulting injuries of which plaintiff complains.
[1] Plaintiff relies upon three allegations of negligence which may be summed up as: First, driving at an excessive and unreasonable rate of speed in view of the conditions; second, failing to keep a proper and timely lookout; third, driving voluntarily into a zone of danger, knowing of its existence and knowing of the close proximity of the King car.
The motion to direct, of course, is in substance predicated upon the claim that plaintiff had failed to carry the burden of proving any or all of these grounds. The court, accepting the defendant's view, sustained the motion at the close of all the testimony. We are satisfied that in so ruling the court was right.
[2] Without passing upon the question whether plaintiff's husband was exercising the proper degree of care in approaching this intersection, the presence of which was unknown to him, it is sufficient to say that the defendant could in nowise be charged with any fault on that account. Though Colonel King may not have known of the presence of the stop sign and may have been blameless in not seeing it because of the obstructions, the undisputed fact is that the defendant knew that the stop sign was there facing north against the traffic coming down South Union from that direction. Moreover, had no such sign been there, defendant would have had the right of way against traffic coming from the left, under the statute, Code 1935, § 5035, and under our decisions.
[3] There is an intimation in plaintiff's argument that there is no proof that the stop sign was placed there by proper *Page 895
authority. There is no merit in this contention for the reason that a traveler must have the right to assume that highway signs having the appearance of regularity are placed by proper authority.
There is no contradiction of the testimony of the defendant with reference to his movements, except, as plaintiff contends, the nature of the accident, the position of the cars, and marks on the intersection. This, plaintiff contends, warranted the submission of the question of defendant's negligence. Without presuming to pass upon the weight of the testimony, which would have been for the jury had a jury question been presented, we can say that the circumstances would seem to negative rather than affirm plaintiff's claim of negligence in this regard.
This will be sufficient to illustrate our view: The defendant was driving down a decline a truck which, with its load, weighed approximately 10,000 pounds. His speed was not to exceed four miles an hour. The King car, driven uphill at a speed of thirty-five or forty miles an hour, came in contact with this heavy truck, deflecting the course of the truck to the southeast corner of the intersection, and then proceeded a considerable distance beyond. We have examined and re-examined the testimony and have been unable to discover wherein the court would have found justification for submitting to the jury any charge of negligence on the part of the defendant.
Plaintiff places considerable stress upon Parrack v. McGaffey,217 Iowa 368, 373, 251 N.W. 871, 873, and quotes therefrom the so-called "physical fact rule," and goes on to quote:
"It is the settled rule of law, where one voluntarily places himself in a position of danger which can be seen and appreciated, he is guilty of contributory negligence, as a matter of law." (Citing cases.)
This rule, and others announced in cited cases, may be admitted as stating the law without affording any relief to plaintiff. So, too, the citation of Sexauer v. Dunlap, 207 Iowa 1018,222 N.W. 420, to the effect that one unfamiliar with the highway and unaware of his approach to an obscured intersection is not guilty of negligence in failing to observe the laws of the road. This rule may well justify the conduct of Colonel King without attributing any negligence to the defendant. *Page 896
What has been said obviates the necessity of commenting on the further complaints urged by plaintiff on the refusal of the court to submit various questions of negligence involved or presented by the pleadings.
[4] One other complaint remains to be considered. That has to do with the alleged error on the part of the court in taking a part in the examination which was being conducted by plaintiff's counsel of the witness Hartley. While the court might well have refrained from the comment of which complaint is made, we have been unable to find any prejudicial error therein, particularly since the subject-matter of the record at this point would not change the result we have announced.
Finding no error in the action of the trial court, this case is affirmed. — Affirmed.
HAMILTON, C.J., and ANDERSON, DONEGAN, RICHARDS, KINTZINGER, MITCHELL, and STIGER, JJ., concur.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3211183/
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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0961
State of Minnesota,
Respondent,
vs.
Patrick Charles Bonga,
Appellant.
Filed April 11, 2016
Affirmed
Reyes, Judge
Becker County District Court
File No. 03CR132397
Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and
Gretchen D. Thilmony, Becker County Attorney, Detroit Lakes, Minnesota (for
respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Nathan R. Sellers,
Special Assistant Public Defender, Fabyanske, Westra, Hart & Thomson, P.A.,
Minneapolis, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Johnson, Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
REYES, Judge
Appellant argues that the district court erred by denying his petition for
postconviction relief, claiming that his trial counsel was ineffective by failing to properly
calculate his criminal-history score when the state offered him a plea deal. On direct
appeal, he also alleges that his trial counsel was ineffective on various other grounds. We
affirm.
FACTS
On November 4, 2013, appellant Patrick Charles Bonga went to the complainant
T.D.’s home where they consumed alcohol together. At some point, appellant left T.D.’s
home, but when he returned, he was upset and aggressive. Appellant suddenly demanded
money from T.D., but T.D. refused because he needed the money to pay rent. Appellant
then shoved T.D. into the closet door, breaking it. Appellant stabbed T.D. in the leg and
punched him in the face.
When T.D. could not get the bleeding to stop, he called 911 for medical assistance.
Officers Phillips and Vaughn came to his house, and he told them that appellant had
stabbed him. T.D. also texted and called his mother, G.D., informing her that appellant
had stabbed him. Appellant was arrested on November 14, 2013. The state charged him
with two counts of second-degree assault.1 Prior to trial, appellant’s trial counsel met
with him to discuss a plea offer from the state. On November 25, 2013, based on
1
The second charge of second-degree assault was dismissed prior to the trial.
2
appellant’s criminal-history score and the applicable sentencing guidelines, the state
offered him “the low end” or 44 months to plead guilty to the charges. Appellant rejected
the state’s offer.2 He proceeded to a jury trial and was found guilty of second-degree
assault. After trial, appellant informed his trial counsel that there was an error in the
calculation of his criminal-history score in his preplea worksheet. Appellant’s criminal-
history score and the applicable sentencing guidelines were corrected to reflect a score of
four, which would have resulted in a low end of 39 months. The district court sentenced
appellant to 54 months in prison.
The trial
T.D. was scheduled to testify on the first day of trial, but his testimony was
rescheduled because he came to court intoxicated. As a result, prior to T.D.’s testimony,
Officers Phillips and Bergren testified that T.D. told them that appellant stabbed him.
Appellant’s trial counsel did not object to the officers’ testimony as hearsay in
anticipation that T.D. would testify, but preserved his objection in the event that T.D.
failed to appear.
T.D. testified the next day. He stated that appellant shoved him against the closet
door, punched him in the face, and stabbed him in the leg. He also stated that he was
afraid of appellant and that appellant threw a lit cigarette in his face. Appellant’s trial
2
We note that a correct calculation of appellant’s criminal-history score would result in a
low end offer of 39 months to plead guilty to the charges. However, the record is silent
as to whether the state would have, indeed, offered appellant 39 months to plead guilty to
the charges, and appellant does not challenge the second prong in Missouri v. Frye, 132
S. Ct. 1399, 1402-03 (2012).
3
counsel made no objection to this statement. Following T.D.’s testimony, G.D. testified
that T.D. called her and told her that appellant had stabbed him. Appellant’s alibi
witness, J.N., testified that appellant was with her the night the incident occurred. But on
cross examination, the state impeached J.N.’s prior statement that she had not previously
observed appellant use drugs or alcohol by introducing evidence of her probation from a
recent felony controlled-substance conviction. The state also introduced Officer Kuhn’s
testimony that J.N. previously stated that appellant arrived at her house after 9:00 p.m.,
which impeached her trial testimony and statement to officers that he arrived around 5:00
p.m. Appellant’s trial counsel did not object to any of the impeaching testimony. Last,
Officer Vaughn also testified that T.D. identified appellant as the person who stabbed
him.
Appellant filed a direct appeal from the judgment of conviction. He then moved
to stay the appeal to pursue postconviction proceedings. He argued that his trial counsel
was ineffective for failing to correctly calculate and investigate his criminal-history score.
When appellant’s trial counsel was appointed, he received the court-information
summary.3 The court-information summary reflected, on two separate pages, that
appellant was previously convicted on the same date for kidnapping and assault. Because
his felony offenses for kidnapping and second-degree assault were impermissibly counted
twice, the preplea worksheet, dated December 3, 2013, incorrectly reflected that
appellant’s total criminal-history score was five, rather than the correct score of four.
3
The court-information summary is a prebail evaluation form that details appellant’s
criminal history.
4
The district court determined that appellant did not prove that his trial counsel’s
representation during plea negotiations fell below an objective standard of reasonableness
and failed to show that there “was a reasonable probability that, but for counsel’s errors,
[he] would have accepted the [s]tate’s plea offer.” After the postconviction order, the
stay of the appeal was dissolved, and the appeal was reinstated.
DECISION
Appellant alleges that the district court erred by denying his petition for
postconviction relief. In addition, on direct appeal, appellant argues that his trial counsel
(1) inappropriately shifted the burden of proof to appellant during his opening statement;
(2) failed to object to four prosecution witnesses who identified appellant as the
perpetrator through hearsay; (3) failed to object to inadmissible Spreigl evidence; and
(4) failed to object to the state’s impeachment of appellant’s alibi witness through an
inadmissible prior conviction and inadmissible hearsay. We address each argument in
turn.
I. Appellant’s postconviction claim of ineffective assistance of counsel
Claims of ineffective assistance of counsel are analyzed under the two-prong
analysis from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).
First, the defendant must show that his or her counsel’s representation fell below an
objective standard of reasonableness. Id. On review, “[t]here is a strong presumption
that counsel’s performance was reasonable.” Schleicher v. State, 718 N.W.2d 440, 447
(Minn. 2006) (quotation omitted). Second, the defendant must show that “a reasonable
probability exists that the outcome would have been different but for counsel’s errors.”
5
State v. Bobo, 770 N.W.2d 129, 137 (Minn. 2009) (quotation omitted). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. 693, 104 S. Ct. at 2068 (1984). “We review the denial of
postconviction relief based on a claim of ineffective assistance of counsel de novo
because such a claim involves a mixed question of law and fact.” Hawes v. State, 826
N.W.2d 775, 782 (Minn. 2013). “The court’s factual findings will not be disturbed
unless they are clearly erroneous. We review the court’s legal conclusions de novo.”
State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013) (citations omitted).
In Missouri v. Frye, the Supreme Court articulated a two-prong test that a person
must satisfy when asserting an ineffective-assistance-of-counsel claim involving a
rejected guilty plea. 132 S. Ct. at 1402-03. Under Frye, appellant “must demonstrate a
reasonable probability. . . that they would have accepted the more favorable plea offer
had they been afforded effective assistance of counsel and that the plea would have been
entered without the prosecution’s canceling it or the trial court’s refusing to accept it.”
Id. Appellant challenges only the first prong of the Frye test.
Here, the district court rejected appellant’s argument that, had trial counsel
investigated and communicated the correctly calculated plea offer, there is a reasonable
probability he would have accepted the state’s plea offer. Specifically, the district court
found that the testimony of appellant’s trial counsel and appellant demonstrated that
appellant “showed no interest in pleading guilty, but instead focused on proving his
innocence at trial.”
6
The district court’s factual findings are supported by the record. At the
postconviction hearing, appellant testified that he could not be 100% sure, nor could he
be certain that he would have accepted the offer at 39 months because that chance is now
lost, but it is possible that he would have pleaded guilty. He also testified that he was
unsure if there was an offer of a “certain number” where he would have “tapped out”
(given up or pled), but he felt that he would not receive a fair trial.4 “There is a chance
that I may have pleaded guilty to it. But 39 certainly sounds more attractive than 44.”
Despite these representations at the postconviction hearing, appellant consistently
maintained his innocence at the pretrial hearing, sentencing, and the evidentiary hearing.
Appellant’s trial counsel testified that he was surprised by appellant’s assertion
that he might have accepted a 39-month plea bargain. More specifically, he testified that
if he “had any inkling that this was a settleable case, [he] would have pursued
[settlement].” Appellant’s trial counsel further testified that appellant consistently
maintained his innocence and did not feel that this was a “settleable case.” Although he
testified at appellant’s sentencing hearing that there was a possibility that “decisions
could have been made prior to the trial” and “some agreement could have been reached,”
he was merely zealously advocating for appellant, but did not believe that appellant
would have accepted the plea offer even at a lower number.
4
Appellant also offered an affidavit that stated there was no “magic number,” below
which he would have pleaded to the state’s offer, but had the correct offer been made
prior to trial, “there is a reasonable probability that [he] would have accepted the offer.”
7
Appellant’s testimony fails to establish a reasonable probability that, but for the
alleged error, he would have pleaded guilty. Appellant’s testimony as to whether he
would have accepted an offer of 39 months was only that it was “possible” or “there is a
chance,” not that there was a reasonable probability he would have accepted it.
Furthermore, his trial counsel’s testimony showed that appellant had no intention to plead
guilty, and appellant maintained his innocence throughout the proceedings. See Leake v.
State, 767 N.W.2d at 11 (reaching similar conclusion on similar facts). As such,
appellant failed to meet his burden on the first prong of the Frye test, and the district
court therefore did not err by denying his petition for relief. Because we conclude that
appellant is unable to establish a reasonable probability that, but for the alleged error, he
would have pleaded guilty, we need not consider the first Strickland prong. 466 U.S. at
687, 104 S. Ct. at 2064.
II. Appellant’s claims on direct appeal of ineffective assistance of trial counsel
A. Claim of improper shifting of the burden of proof
Appellant next contends that he was denied effective assistance of trial counsel
because his trial counsel improperly shifted the burden of proof to appellant regarding
appellant’s alibi defense.
Here, appellant used an alibi defense at trial. During opening statement,
appellant’s trial counsel stated:
In the end, the defense has no way to prove to you who
actually did do a stabbing, but then again, we don’t have to.
We have the burden of proof only to establish to you that
[appellant] has an alibi. That is the heart of the defense in this
8
case. And in no way does [appellant] have a burden of proof
to show you who did it instead.
However, in closing arguments appellant’s trial counsel more clearly articulated the
state’s burden to prove appellant’s guilt beyond a reasonable doubt. And the district
court provided the following curative statement:
The lawyers’ arguments are intended to help you
understand the evidence and to apply the law. . . . you must
disregard any statement by a lawyer about the law which
differs from my instructions concerning the law.
See State v. Yang, 627 N.W.2d 666, 681 (Minn. App. 2001) (highlighting the district
court’s use of curative instructions to a jury and rendering improper remarks as
innocuous), review denied (Minn. July 24, 2001). The district court further instructed the
jury that “[t]he defendant is not required to prove his innocence. The burden of proof
rests upon the prosecution to establish the guilt of the defendant beyond a reasonable
doubt.” See State v. McDonough, 631 N.W.2d 373, 389 n.2 (Minn. 2001) (illustrating
that, where the district court clearly and comprehensively instructed the jury regarding
the burden of proof, attempts to shift the burden of proof are often nonprejudicial).
Appellant thus cannot prove that he was prejudiced. Strickland, 466 U.S. at 691, 104
S. Ct. 2066 (“An error by counsel, . . . does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.”). Trial counsel’s conduct
did not fall below an objective standard of reasonableness. Id. Therefore, appellant’s
claim fails under the Strickland analysis.
B. Failure to object to alleged hearsay evidence
9
1. Alleged hearsay from various witnesses
Appellant argues that he was denied effective assistance of trial counsel because
his counsel failed to object to inadmissible hearsay evidence. More specifically,
appellant argues that the testimony of Officers Vaughn, Phillips, and Bergren, and G.D.
identifying appellant as the perpetrator based on T.D.’s statements to them were
inadmissible hearsay. This argument is without merit.
Appellant’s trial counsel testified that he did not object to the officers’ testimony
because he anticipated that T.D. would testify, at which point their statements would be
admissible. But he preserved his objection in the event that T.D. failed to testify. Under
Minn. R. Evid. 801(d)(1)(B) a statement is not hearsay when “[t]he declarant testifies at
the trial . . . and is subject to cross-examination concerning the statement, and the
statement is consistent with the declarant’s testimony and helpful to the trier of fact in
evaluating the declarant’s credibility as a witness.” An out-of-court statement is helpful
to the trier of fact to evaluate the witness’ credibility when, the witness’ credibility has
been challenged, and the statement bolsters “the witness’ credibility with respect to that
aspect of the witness’ credibility that was challenged.” State v. Nunn, 561 N.W.2d 902,
909 (Minn. 1997).
T.D.’s statement that appellant stabbed him was admissible as a prior consistent
statement. T.D.’s credibility was challenged in the state’s opening statement with regard
to his statement that appellant was the perpetrator and his consistent statement to various
witnesses that appellant stabbed him. Appellant challenged the credibility of T.D.’s
statement in opening statements by (1) introducing alibi testimony; (2) introducing an eye
10
witness who failed to identify appellant or T.D.; (3) stating that T.D.’s facts regarding the
encounter changed; and (4) stating that T.D. “chose to falsely accuse [appellant] in an
attempt to cover up what really happened.” Because T.D.’s credibility was challenged,
the officers’ testimony was helpful to the trier of fact and bolstered T.D.’s credibility with
respect to his statement.
Because T.D. testified at trial regarding the statements previously made to the
other witnesses, the witnesses were subject to cross-examination regarding T.D.’s
statement, and their testimony was helpful in evaluating T.D.’s credibility, the statements
were admissible as prior consistent statements and were not hearsay. Minn. R. Evid.
801(d)(1)(B). Moreover, trial counsel’s decision to not object was reasonable under the
circumstances. Dukes v. State, 660 N.W.2d 804, 810 (Minn. 2003) (stating that court’s
“judge the reasonableness of counsel’s challenged conduct on the facts of the particular
case, viewed as of the time of the conduct”). Further, he preserved the right to object if
T.D. did not testify. And the record reflects that appellant’s trial counsel carefully
considered the decision to allow officers Phillips and Bergren to testify before T.D.5
Moreover, T.D.’s statements to officers Phillips and Vaughn are also admissible as
an excited utterance. Under Minn. R. Evid. 803, “[a] statement relating to a startling
event or condition made while the declarant was under the stress of excitement caused by
5
Appellant also challenges the testimony of Officer Vaughn and G.D., but they testified
after T.D. and meet the requirements under the rule. Minn. R. Evid. 801(d)(1)(B).
Accordingly, we need not consider his argument with respect to those witnesses.
11
the event or condition” is not excluded by the hearsay rule even when the declarant is
unavailable.
Here, Officers Phillips and Vaughn responded to T.D.’s apartment in response to
his 911 call and arrived within approximately three minutes of receiving the call. Phillips
testified that T.D. was in distress and in a state of shock. Vaughn testified that T.D. was
“in a panic and shock” and was “kind of freakin[g] out.” While T.D. was under the stress
of excitement caused by the assault, he identified appellant as the person who stabbed
him. See Minn. R. Evid. 803. Therefore, the statements were admissible as an excited
utterance and were excluded by the hearsay rule.
We conclude that appellant failed to show that his trial counsel rendered
ineffective assistance of counsel by failing to object to the alleged statements.
2. Alleged hearsay from officer Kuhn
Appellant further alleges that his trial counsel was ineffective because he failed to
object to hearsay testimony from Officer Kuhn regarding appellant’s alibi witness J.N.
and J.N.’s neighbor. We disagree.
Officer Kuhn testified that J.N. was not at her house when he went to speak with
her, but he was able to locate her by talking to J.N.’s neighbor. The neighbor told Kuhn
that J.N. came to his residence and asked for a ride. The neighbor also told him that J.N.
said she was “frightened because [appellant] was there.” But the officer testified that J.N.
told him that she was not afraid of appellant. Similarly, at trial when J.N. was asked
whether she ever told anyone that she was afraid of appellant, she responded, “No.”
12
First, Officer Kuhn’s statements are admissible because J.N. testified at trial and
was subject to cross-examination regarding her statement to the neighbor and the officer.
Minn. R. Evid. 801(d)(1). Second, J.N.’s statements do not demonstrate that she was
fearful of appellant. Third, and most importantly, the neighbor’s statement that appellant
was at J.N.’s house bolstered appellant’s alibi. Therefore, trial counsel’s decision not to
object to the neighbor’s hearsay statement was related to trial strategy because it
supported appellant’s alibi. “We will generally not review an ineffective-assistance-of-
counsel claim that is based on trial strategy.” Andersen v. State, 830 N.W.2d 1, 10
(Minn. 2013).
C. Failure to object to alleged Minn. R. Evid. 404(b) evidence
Appellant argues that he was denied effective assistance of trial counsel because
his counsel failed to object to rule 404(b) evidence, known as Spreigl evidence. State v.
Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965).
Prior to the alleged Spreigl evidence elicited during the complainant’s testimony,
the state provided testimony regarding the nature of the relationship between T.D. and
appellant.
Q: Were you ever scared of the defendant before?
A: I had seen some aggressive behavior, I just blew it off I
guess.
Q: When you say aggressive behavior, what do you mean?
A: I’ve seen his temper flare and [he] threw a cigarette, a
lit cigarette in my face once because I asked him to
leave my apartment and he just got mad for whatever
reason. I don’t know.
Q: So he threw a cigarette at you?
A: Yes.
Q: Did anything happen beyond that?
13
A: No. I had people in the house, you know. I’ve been
scared of him before, I mean he scares me sometimes.
But I guess I didn’t think anything of it, you know.
The supreme court has long held that Spreigl notice is “not intended to apply with respect
to evidence . . . which bears directly on the history of the relationship existing between
one accused of the [crime] and the victim.” State v. Boyce, 284 Minn. 242, 243, 170
N.W.2d 104, 106 (1969); see State v. Waukazo, 374 N.W.2d 563, 565 (Minn. App. 1985)
(discussing with approval the admission of relevant evidence “to illuminate [the]
relationship [between defendant and victim] and place the incident with which
[defendant] was charged in proper context”). Appellant mischaracterizes the state’s
examination of T.D. This testimony simply provided context related to appellant and
T.D.’s prior interactions and relationship. Moreover, even if the relationship testimony
could be construed as Spreigl evidence, appellant was not prejudiced from the lack of
notice related to T.D.’s relationship testimony. “The purpose underlying the Spreigl
notice procedure is to ensure that a defendant is not forced to defend himself against
unexpected testimony of prior offenses.” State v. Schweppe, 306 Minn. 395, 404, 237
N.W.2d 609, 616 (1975). Here, appellant should have reasonably expected T.D.’s
testimony given that the trial was regarding an assault between appellant and T.D.
Therefore, appellant has failed to show that his trial counsel’s conduct fell below an
objective standard of reasonableness by deciding to not object to the alleged Spreigl
evidence.
D. Failure to object to impeaching testimony
14
Last, appellant argues that he was denied effective assistance of counsel because
his trial counsel failed to object to the improper impeachment of appellant’s alibi witness,
J.N. We are not persuaded.
Decisions on whether to object at trial are matters of trial strategy. White v. State,
711 N.W.2d 106, 110 (Minn. 2006). As stated above, we generally do not review claims
of ineffective assistance of counsel based on trial strategy. See Andersen, 830 N.W.2d at
10. And, it is presumed that, in making substantial decisions, trial counsel exercised
“reasonable professional judgment” while providing sufficient assistance to appellant.
Dukes, 660 N.W.2d at 810-11.
Here, J.N. testified that appellant was with her the night the incident occurred. But
on cross-examination, the state introduced evidence that J.N. is “on probation for a felony
controlled substance conviction” from 2012. The state impeached J.N.’s prior statement
on direct examination that she had not previously observed appellant use drugs or
alcohol. The state also introduced Officer Kuhn’s testimony that J.N. previously stated
appellant arrived at her house after 9:00 p.m., which impeached her trial testimony that
he arrived around 5:00 p.m. Appellant alleges this was hearsay. But, J.N.’s prior
inconsistent statements are admissible for impeachment purposes. State v. Saporen, 205
Minn. 358, 364-65, 285 N.W. 898, 902 (1939). J.N.’s statements were not hearsay and
were not offered as substantive evidence. Her statements were offered to show that she
was not offering truthful testimony.
Prior to Officer Kuhn’s testimony, appellant’s trial counsel discussed J.N.’s
inconsistencies in her testimony during her direct examination. This suggests that it was
15
trial strategy to discuss the inconsistent statement on direct examination and not call
additional attention to it during the officer’s testimony. Given our reluctance to second-
guess trial counsel’s strategic decisions, based on the record before us, appellant’s trial
counsel’s decision to not object did not fall below an objective standard of
reasonableness. Appellant’s claim of ineffective assistance of trial counsel fails.
Affirmed.
16
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01-03-2023
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06-09-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3432791/
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Carleton B. Toy died testate on March 20, 1932, a resident of Woodbury county. His will was probated and the executors filed an inventory, a part of which was designated as schedule 4. By its terms this schedule 4 purported to be merely informative that on May 22, 1926, decedent had executed a written instrument transferring in trust all of the property set out in schedule 4 and that this property was not subject to inheritance tax on account of its alienation by decedent by the trust instrument prior to his death. In subsequent proceedings establishing the amount of the inheritance tax due from the estate, the property set out in schedule 4 was included as a part of the estate subject to such tax. The executors *Page 826
filed objections to such inclusion of the property of schedule 4. Upon a hearing the district court sustained the objections of the executors and annulled the tax assessed against the property set out in schedule 4. From that determination by the district court, the treasurer of state has taken this appeal. The only question before us is whether the property set out in said schedule 4 was rightly excluded by the trial court in determining the extent of the assets of said estate subject to inheritance tax.
At the date of the execution by decedent of the trust instrument above mentioned there had been enacted certain statutes relative to taxes upon succession to assets of decedents, contained in chapter 351 of the 1924 Code of Iowa, which chapter, after providing that the estates of all deceased persons shall be subject to inheritance tax as provided in said chapter, contains the following section:
"7307. Property included. The tax hereby imposed shall be collected upon the net market value and shall go into the general fund of the state to be determined as herein provided, of any property passing:
"1. * * *
"2. By deed, grant, sale, gift, or transfer made in contemplation of the death of the grantor or donor, or any such deed, grant, sale, gift, or transfer made or intended to take effect in possession or enjoyment after the death of the grantor or donor. * * *"
The contention of appellant is that the above-mentioned trust instrument was a transfer made or intended to take effect in possession or enjoyment after the death of said decedent, and that consequently the property so transferred was subject to the imposition of an inheritance tax, by reason of the terms of above section 7307, and likewise by reason of the terms of section 7307 of the Code of 1931, hereinafter referred to, in force at the time of decedent's death. It being appellees' contention that section 7307 of the Code of 1924 must govern because section 7307 of the 1931 Code includes amendments enacted subsequent to the execution of the trust instrument, we will first view the contention herein in the light of said section as contained in the Code of 1924. The trust instrument itself is voluminous, but the following is a sufficient description of its material features: The instrument was executed by decedent *Page 827
as the settlor and by a corporation and two individuals as the trustees of the trust therein created; by the terms of the instrument, decedent, in consideration of one dollar, sold, assigned, transferred, and set over to the trustees the property in question for the uses, trusts, and purposes thereinafter provided, for a trust period measured by the lives of first party, his wife, his two children and five nephews and nieces, and twenty-one years from and after the decease of all said persons; the instrument provides that the trustees shall have the same power, management, control, rights of disposition, investment, transfer, and conveyance of said property as first party himself has with reference to his estate during his own lifetime, except that first party reserves right at all times to direct second parties to retain any investment and the right to direct the sale or exchange of any investment and to designate the property real or personal in which the trust fund shall be invested and the right to direct the issuance of voting proxies to vote any stock that may be a part of said trust property; said instrument also contains two express provisions which we consider determinative of the question before us, namely: first, a provision that the trustees were to collect all income from said property, and, after paying the necessary expenses, were to pay over to decedent, during his lifetime for his own use, the annual net income in regular monthly installments, any income not so paid to become a part of the trust funds, and, second, an express provision that decedent retained the power to amend, alter, revoke, or cancel the instrument wholly or in part during his lifetime. It should also be added as descriptive of the trust instrument that it provides that after the death of first party the trustees shall pay the income from the property to various beneficiaries, with some shifting upon certain contingencies, with an eventual vesting of the property at the end of the trust period.
It should also be noted that the decedent did not revoke the trust instrument during his lifetime, but did execute an amendment on January 30, 1930, the provisions of which are not material herein, unless it be that in the amendment decedent provided that said original instrument remains in full force and effect except as changed by the amendment. Also, it should be noted that the property transferred by the trust instrument is identical with the property described in schedule 4, supra.
As stated, the trust instrument required that the trustees *Page 828
pay over to decedent during his lifetime for his own use the annual net income from the property in regular monthly installments, any income not so paid to become a part of the trust. Appellant contends that by reason of this provision the transfer of the property of schedule 4 to the trustees was a "transfer made or intended to take effect in possession or enjoyment, after the death of the grantor or donor." We are satisfied appellant is sustained by the authorities. In the case of Blodgett, Tax Com. v. Guaranty Tr. Co. of N.Y., 114 Conn. 207,158 A. 245, decedent had executed an irrevocable deed of trust transferring certain securities and by the instrument it was provided that the trustee should collect the income and pay same to decedent during her lifetime, and pay the income thereafter to her husband during his lifetime and thereafter pay the principal of the trust to certain other persons. The question before the court was whether the property of the trust was subject to an inheritance tax under a statute of Connecticut imposing such tax on any gift of property passing by deed, grant, or other conveyance intended to take effect in possession or in enjoyment at or after the death of the grantor or donor. The Connecticut court held that the statute recognized the distinction between taking effect in possession or enjoyment, and vesting in right, title, or interest, and held that the statute was intended to reach a shifting of the enjoyment of property, although such shifting followed necessarily from a prior transfer of title inter vivos; that within meaning and description of the statute the transfer in question was a gift intended to take effect in possession or enjoyment at or after the death of the donor, and, therefore, was subject to the succession tax. In Coolidge v. Commissioner, 268 Mass. 443, 167 N.E. 757, in sustaining the imposition of an inheritance tax under statutes similar in their essentials to the Iowa statutes, held that it is not necessary to the validity of an excise or succession tax that an interest in the property pass directly from the grantor or settlor of the trust at the time of his death, if the beneficiary under the instrument of gift, succeeds to an interest not previously enjoyed which bears a distinct and necessary relation to the death of the settlor or grantor. That a conveyance directly to the beneficiary with reservation to the grantor of a life estate or full use and control during grantor's life, or a conveyance in trust for grantor during his life falls within the meaning *Page 829
of transfers "intended to take effect after death of the grantor or donor" and that such transfers are the very type that such inheritance tax statutes are intended to reach has been held in numerous jurisdictions. See In re Brix, 181 Cal. 667, 186 P. 135; People v. Tavener, 300 Ill. 373, 133 N.E. 211; In re Brandreth,169 N.Y. 437, 62 N.E. 563, 58 L.R.A. 148. In Lamb v. Morrow,140 Iowa 89, 117 N.W. 1118, 1121, 18 L.R.A. (N.S.) 226, it is said:
"It is no doubt true that the owner of an estate cannot defeat the tax by any device which secures to him for life the income, profits, or enjoyment thereof. The conveyance must be such as passes the possession, the title, and the enjoyment of the property in the grantor's lifetime. This is the rule in other states having statutes similar to our own (see Seibert's Appeal,110 Pa. 329, 1 A. 346; Du Bois' Appeal, 121 Pa. 368, 15 A. 641; Reish v. Com., 106 Pa. 521; In re Brandreth's Estate, 169 N.Y. 437, 62 N.E. 563, 58 L.R.A. 148; In re Green's Estate, 153 N.Y. 223, 47 N.E. 292), and should be the one adopted here."
In Brown v. Gulliford, 181 Iowa 897, 899, 165 N.W. 182, 183, it is said,
"It is unquestionable it [the legislature] has the power to put a succession tax upon those who receive a deed in praesenti, with such a reservation in the grantor as is found in the deed here." The deed referred to reserved a life estate in the grantor. The court further says: "That is to say, though the grantee in such deed becomes the owner upon delivery of the deed in such sense that his title may be the subject of levy and seizure, and that only time is wanting to make a title which includes the right to possession and enjoyment, the legislature may subject him who takes such a conveyance to a collateral inheritance tax. It is well settled that reservation of a life estate is such postponement of possession and enjoyment as that the tax attaches under such a statute as we have."
In view of the authorities, we conclude in the case at bar that the reservation of the income by decedent during his lifetime characterizes the transfer as one made or intended to take effect in possession or enjoyment after his death within the intendment of the legislature in the enactment of section 7307, *Page 830
Code of 1924, and accordingly we hold that the district court erred in sustaining the executors' objections to the inclusion of the property set out in schedule 4 of the inventory as a part of decedent's estate in determining the amount of inheritance tax payable upon the succession to said estate.
Section 7307 of the Code of 1931, which we have mentioned above, contains the same substance as section 7307 of the 1924 Code, and, in addition thereto by amendments, the legislature has added a provision that a transfer of property in respect of which the transferor reserves to himself a life income or interest shall be deemed to have been intended to take effect in possession or enjoyment at death, provided that if the transferor reserves to himself less than the entire income or interest, the transfer shall be deemed taxable only to the extent of a like proportion of the value of the property transferred. Appellees suggest that this addition to the statute was undoubtedly intended to reach property which could not have been reached under section 7307 as it stood at the time of the execution of the Toy trust instrument. There appears nothing in the amending act sustaining appellees' thought that it was a recognition that such transfers could not be reached under the earlier form of the section in question. Appellees might perhaps with more reason surmise that this addition to the statute was intended to meet a line of authorities in other jurisdictions in which it had been held that transfers providing for a sharing between the trustor and his beneficiaries of the enjoyment of the income of the trust estate during the lifetime of the trustor lie outside the contemplation of statutes similar to section 7307, Code 1924.
We advert now to the provision in the trust instrument by which decedent reserved the absolute right to himself to revoke during his lifetime the trust instrument and the transfer therein contained. Appellant contends that this reservation of itself compels the conclusion that the transfer by decedent was made or intended to take effect in possession or enjoyment after the death of decedent. In support appellant cites Reinecke v. Northern Trust Co., 278 U.S. 339, 49 S. Ct. 123, 73 L. Ed. 410, 66 A.L.R. 397, and other cases. It being apparent from the first part of this opinion that this case must be reversed, it becomes nonessential to consider any additional grounds for reversal urged by appellant, and we leave undetermined appellant's proposition referred to in this paragraph. We also leave *Page 831
undetermined whether, on account of the reservation of the power of revocation, the liability of the estate would be determined by the statutes in effect at date of decedent's death, rather than the date of the execution of the trust instrument.
The decree and order of the district court appealed from being erroneous, it follows that this cause must be and is reversed. — Reversed.
KINTZINGER, C.J., and ALBERT, DONEGAN, and HAMILTON, JJ., concur.
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This is a proceeding in probate, wherein the Reconstruction Finance Corporation, on September 26, 1939, filed a claim against the estate of Hannah Thornwall, deceased, and asked that same be allowed as a claim of the third class, basing said claim upon two promissory notes made and delivered by Hannah Thornwall, decedent, to the Farmers State Bank of Maxwell and later assigned to the claimant. One note was for $1,500, dated April 27, 1932, due in six months, with seven per *Page 628
cent interest until due and thereafter eight per cent. Claimant alleges that on September 15, 1939, there remained unpaid on principal $150, with unpaid interest amounting to $442.35, a total due of interest and principal of $592.35. The other note was for $3,900, dated October 10, 1932, due in six months with seven per cent interest until due and thereafter eight per cent. Claimant alleges that on September 15, 1939, there remained unpaid on principal $3,600, with unpaid interest amounting to $2,114.19, a total due of principal and interest of $5,714.19. Copies of these notes were attached to the petition. The executor filed no written answer or resistance to the claim.
The probate court referred the claim to Dring D. Needham, referee in probate in and for Polk County, Iowa, who, after hearing the evidence, filed with the court on September 4, 1941, a written report in which he held in effect that on October 26, 1939, the executor of the estate, Martin H. Troup, on the one hand, and claimant on the other, had entered into an agreement wherein said claim was to be settled and compromised by the payment of the sum of $1,117.92. He further held that there was no further liability thereafter on the part of the estate. Due objections and exceptions were filed by claimant to this report. This report, together with the exceptions and objections, was reviewed by the court; and thereafter and on February 26, 1942, the district court overruled said exceptions and objections and confirmed the report of the referee holding that claimant was not entitled to claim in excess of $1,117.92 without interest. Costs were taxed to the claimant and appeal was taken to this court.
In the further discussion of this appeal the claimant, Reconstruction Finance Corporation, will be referred to as the RFC.
We will make a brief outline of some of the facts in order to obtain an understanding of the matters involved herein. Hannah Thornwall, maker of the notes involved herein, died testate a resident of Polk County, Iowa, on February 27, 1939. Her will was probated on April 4, 1939, and thereunder Martin H. Troup was appointed executor. He qualified and is still acting in that capacity. Hannah Thornwall left six children, all adults. There were three daughters, Gertrude, Esther, and Emma, and three sons, Henry, Harry, and Wilbur. At her death she owned 180 *Page 629
acres of land in Polk county but no personal property. To Henry she devised an 80-acre tract, and the balance to her six children share and share alike. Under this will Henry received .538 per cent of the real estate.
Hannah Thornwall made, executed, and delivered the notes involved; they are now held by the claimant; they are unpaid, and the amounts set forth, principal and interest, as being due thereon, are matters not in dispute. It is a liquidated claim and was filed September 26, 1939.
On October 26, 1939, a Mr. Graham, a representative of claimant, had a conference with the executor at his office in Maxwell, Iowa. It concerned the claim filed. During a part of the conference Henry Thornwall was present. Following the discussion Mr. Graham left, and on February 10, 1939, a draft for the sum of $1,117.92, made payable to claimant, was mailed by the executor, and in the letter accompanying the draft Troup stated that the draft was considered as a full and final settlement for the release of the claim. The claimant refused to accept the sum sent as payment in full but did offer to apply the same on the claim and returned the draft to the sender. At that time the total due on said claim was $6,306.44.
The executor makes the claim that Graham, the representative of the claimant acting in its behalf and with its authority, entered into a binding agreement with the executor and Henry Thornwall to compromise and settle the claim for the sum of $1,117.92, and that the draft mailed to claimant by the executor on February 10, 1939, was in full payment of said claim.
In essence, the executor claims that Graham, as a representative of claimant, was an agent of said claimant, with power and authority to settle and compromise the claim, and that he did so and that the claimant is bound thereby; also that there was consideration for said agreement.
[1] The burden of proving this defense is upon the executor. He filed no pleading controverting said claim and raised his contention in argument. The principal issue herein is whether he has shown the matters necessary to establish his resistance. *Page 630
During the trial of the case, when the authority or status of Graham was under consideration, the parties entered into the following stipulation:
"Graham is a field representative of the Reconstruction Finance Corporation; his duties consist of collecting indebtedness and receiving payments on account of any notes held by the corporation."
The executor does not challenge the validity of the claim; he contends that it has been compromised and settled and that claimant is concluded thereby. The claim was filed within the six-months' period following the opening of the estate.
Graham came to Maxwell on October 26, 1939, and there talked over the matter of the claim with the executor. The record is silent as to how Graham happened to come to Maxwell. There is no evidence to the effect that Graham then had possession of the two notes. Graham was not a witness in the trial of the case, and so far as the record shows he made but the one trip. Troup testified that Graham represented himself to be a representative of the RFC. He further said that up to that point he knew nothing about what the compromise was between the Thornwalls and the RFC. Troup says that he had some of his own figures which he and Graham went over, and these showed a settlement was being discussed wherein $850 was on the notes, $254.72 on interest, a total of $1,104.72, and that Graham wanted to know when they could pay it. He recalled that Henry Thornwall was called in and he said, "We can't pay it until we get our corn in and sealed," and he told him as near as he could when that time would be. There was some delay in sealing the corn and Henry Thornwall came in on February 10th. The executor states that Graham had left with him (Troup) a notation that the accumulating interest would be twelve cents per day and they figured interest from October 26th to February 13th as $13.20, or a total sum due on the settlement to claimant of $1,117.92. He states that he sent this in but that claimant returned it and refused to accept it in settlement of its claim.
The executor testifies that when he remitted the $1,117.92 to claimant he wrote a letter to claimant enclosing the draft. *Page 631
He states that in this letter, "I asked that we consider this as a full and final settlement and for a release, but it wasn't accepted, except that they would accept [it] as applying. We objected to that applying when it was to constitute a full settlement." He further said that he was "assuming" that there was a full settlement arrived at. He said, "It was my understanding that that amount was to be a full compromise settlement."
Henry Thornwall, as a witness for the executor, says of the talk of October 26th with Mr. Graham, "who represented the RFC":
"* * * Troup was also present. It was a general conversation, so when we took it up and he brought the amount that he owed, so he went on to state that he figured out what our interest was. I think our sum was something like around $800. I believe the principal and interest made up the difference. So then we told him the time we could make settlement and they figured the amount of the check eleven hundred something, I can't recall. When I say `we' I refer to the estate's indebtedness. I have to talk for the estate. We were trying to get this settled and out of the way. * * * We didn't get any response whatever when the check was mailed in to the office in Chicago. We didn't know that they accepted the check until Mr. Bale came out. We took for granted that Mr. Graham was the representative of the claimant's office. The basis for any agreement was just the amount that we owed prior to that time. By we, I mean it is really us boys * * * This is the estate debt, but what I am after is us boys agreed to pay the compromised amount and when they refused to accept that I told Mr. Bale we were out of it, they would have to go through the estate if they wanted to get the balance we owed them."
The record shows that Mr. Bale was an employee of the claimant as a field representative and examiner. As a witness he testified that the field representative had no authority to make agreements on behalf of the corporation. He stated that he had been with the corporation six years and knew of no instances where a field representative had entered into binding agreements on behalf of the corporation. *Page 632
It will be noted that there was but one meeting when Graham was present. The two witnesses for the executor were the executor and Henry Thornwall. The latter, under the will of his mother, was devised .538 per cent of the real estate. This real estate was liable for the entire debt represented by the two notes. The executor and Henry Thornwall were evidently acting together in the settlement attempted. In the evidence dealing with that matter the terms "compromise and settlement" are used several times. This offer amounts to about seventeen per cent of the claim.
It is well to keep in mind that the burden was upon the executor to show a binding settlement of the claim, or a binding ratification of the claimed settlement. Sheldon v. Thornburg,153 Iowa 622, 133 N.W. 1076; Kern v. Kiefer, 204 Iowa 490,215 N.W. 607; section 11962, Code of 1939. We do not think that the executor has met the burden cast upon him. As a matter of fact, the record shows that the referee in his finding evidently proceeded upon the theory that the burden was upon the claimant to show that Graham did not have authority to bind the claimant in making a settlement. In his finding the referee assumes that certain things must have been done, all in the face of a silent record. The referee assumes that because of its size the RFC was not in a position to consider all relatively minor matters. He attaches significance to the fact that the claim was signed and verified by the acting manager, who recited therein that he had authority to execute and file the petition. In his finding he refers to the stipulation that Graham was a field representative of the RFC and that his duties were to collect indebtedness and receive payments on account of any notes held by the corporation. He further states that the conclusion was inescapable that Graham represented to the executor and Henry Thornwall that he had authority to do what he did. We quote from the finding of the referee as shown in his report:
"There may have been no express statement by him that he had authority to do what he was doing and there is no evidence in the record that he made any such statement but his conduct amounted to just that, namely, that he was carrying out *Page 633
his duties within the scope of his authority. Had that not been the case, there would have been something in this record to show that he was taking the proposed settlement home to submit to his employer for approval."
There is no fair inference in the record to support such conclusion.
The referee did not base his conclusion that Graham was an agent of the RFC with authority to settle or compromise upon any express statement of Graham, but rather upon the "apparent authority" of such person. The record is barren of any evidence that the RFC did anything which would have had a tendency to lead the executor or Henry Thornwall to believe that Graham had any authority to settle or compromise the claim for less than the amount due. In effect, the referee seems to stress the fact that inasmuch as Graham, a representative of the RFC, came to see Troup, he must have had authority to settle the claim. The bare fact that Graham was there would be of slight weight upon the question of his authority. Both Troup and Henry Thornwall "assumed" that Graham had authority to settle and compromise. Henry said: "We took for granted that Mr. Graham was the representative of the claimant's office." Troup on two occasions stated that Graham represented himself as a representative of the RFC. He also said that he "assumed" a definite settlement was arrived at, and it was his "understanding" that the amount was to be a full compromise settlement.
[2] It is a well-settled rule of law that the apparent authority of an agent is not measured by what the agent represents himself to be or his authority, but by what the principal knowingly permits or holds him out to third persons as authorized to do. Grismore v. Consolidated Products Co., 232 Iowa 328,5 N.W.2d 646; Federal Land Bk. v. Union Bk. Tr. Co.,228 Iowa 205, 290 N.W. 512, 292 N.W. 852; First Trust JSL Bk. v. Diercks, 222 Iowa 534, 267 N.W. 708; Holden v. Batten, 215 Iowa 448,245 N.W. 750.
[3] The record shows that the duties of Graham were to collect indebtedness and receive payment on account of any notes held by the RFC. The word "payment" or "collect" *Page 634
means in full and not in part or a compromise for a part. Glenwood Lbr. Co. v. Hammers, 226 Iowa 788, 285 N.W. 277; McCarver v. Nealey, 1 (G. Greene) Iowa 360, 362. In this case the court said:
"The principle is not controverted that an attorney has no right to receive anything but money in satisfaction of a demand placed in his hands for collection, unless especially authorized to do so by his client. And it is equally well settled, that if he applies such a claim in payment of his own debts, his client is not bound thereby, and may still proceed against the defendant. Gullet v. Lewis, 3 Stew. 23; Cost v. Genette, 1 Porter, 212, 34; Craig v. Ely, 5 Stew. and Porter, 354; Tankersley v. Anderson, 4 Des. 45; Smock v. Dade, 5 Rand. 639; Langdon v. Potter, 13 Mass. 320."
In Bigler v. Toy, 68 Iowa 687, 28 N.W. 17, this court held that an attorney who has a claim for collection has no power, in the absence of special authority, to accept as payment a less amount of money than the whole sum due. A rule otherwise would raise all manner of complications and would lead to grievous abuses. The court in the last-cited case adds that such a doctrine is elementary. In this case the executor has not shown any special authority to Graham to compromise the claim or to accept any sum less than the full amount due. The executor not having shown that Graham had authority, either express or apparent, to compromise the claim for less than the amount due, it follows that the action of the lower court in confirming the report of the referee cannot be approved. The executor argues that the compromise agreement is supported by a sufficient consideration in that Henry Thornwall, a stranger to the transaction, obligated himself to make payment of the amount alleged to have been agreed upon. We have already held that the executor had failed to show that the alleged compromise agreement of October 26th was binding upon the RFC. However, in view of the fact that the parties have discussed the point raised, we will consider it.
[4] Henry Thornwall claims that he is a "stranger" to the transaction, and, such being his status, that his obligation to pay the amount agreed upon is sufficient consideration to *Page 635
support it. As we read the record, we do not find that Henry was a stranger to the transaction within the meaning of the law. While he is not a party, in a strict sense, yet he is vitally interested because this claim might be urged against the property which he receives under the will of his mother, the maker of the notes. We think that the record shows affirmatively that he is not a stranger to the transaction. It is conceded that Henry is to receive .538 per cent of the real estate, subject to the payment of debts and charges against the estate. Consequently, any claims collected through the medium of the real estate of decedent would fall heaviest on the share devised to Henry Thornwall. In paying such claims thereby his share of the real estate would have to bear .538 and the shares of his brothers and sisters .462 per cent. In legal effect, Henry was not a stranger to the alleged settlement. Durante v. Eannaco, 65 A.D. 435, 72 N.Y.S. 1048; Hoffman v. Habighorst, 49 Or. 379, 89 P. 952, 91 P. 20. The settlement as claimed by Henry was highly to his advantage and the record abundantly shows that he was anxious to have it go through and was active in its negotiation.
[5] While the executor and Henry Thornwall claim that in the negotiations they entered into a binding settlement wherein the claim of the RFC was compromised, we think, under the record, that the very most that can be said is that it amounted to an offer on the part of the estate and Henry Thornwall to compromise the estate debt. Possibly it may have been suggested by Graham. Under our holdings he would have no authority to settle or compromise except by payment in full. Moron v. Tuttle, 211 Iowa 584,233 N.W. 691. Restatement of the Law, Agency, section 72 (a).
Certainly the remittance was not accepted and was returned to the sender. Such being the case, there can be no ratification. The burden would be upon the executor to show ratification. Ratification arises where a party alleged to have ratified has full knowledge of the facts, and if done without such knowledge there is no ratification. Marion Sav. Bk. v. Leahy, 200 Iowa 220,204 N.W. 456; 2 C.J.S., Agency, 1359, 1361, section 136 c., Ratification; Miller v. Chatsworth Sav. Bk., 203 Iowa 411, *Page 636 212 N.W. 722. We think that no other conclusion can be arrived at under the record. On this point we again quote the evidence of Henry Thornwall:
"* * * Us boys agreed to pay the compromised amount and when they refused to accept that I told Mr. Bale we were out of it, they would have to go through the estate if they wanted to get the balance we owed them."
Troup, the executor, testifying as to the same matter, said:
"I have my letter accompanying this draft, in which I asked we consider this as a full and final settlement and for a release, but it wasn't accepted, except they would accept as applying. We objected to that applying when it was to constitute a full settlement."
That an offer to settle or compromise not accepted is not binding is too well settled to call for citation of authority.
In conclusion, we are of the opinion that the court erred in overruling the objections and exceptions to the report of the referee. We think that the record shows affirmatively that claimant is entitled to have its claim filed allowed in full against the estate. — Reversed and remanded.
All JUSTICES concur.
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Briefly stated, the facts are that, on December 12, 1928, the plaintiff issued to George J. Doyen the policy of life insurance in controversy. The said Doyen gave the plaintiff a premium note, as payment of the first premium. On April 11, 1. TRIAL: 1929, the plaintiff filed in the district court dockets: of Marshall County a petition in equity, transfer: alleging, in substance, the issuance of the waiver: policy; that Katharine Doyen, widow of the petition at insured, is the named beneficiary; that she is law in the administratrix of the estate of George equitable Doyen, deceased; that the policy in question was action: issued December 12, 1928, by which the plaintiff non-transfe- company agreed to pay the beneficiary the sum of rability. $25,000, upon the filing of satisfactory proofs of death, and in compliance with the terms of the contract; that the policy or contract of insurance was issued by the plaintiff in consideration of and in reliance on said statements, answers, and representations of the insured made to it and to the company's medical examiner in the application dated December 8, 1928, and medical examination dated December 9, 1928, copies of which were attached to the petition.
The misrepresentations referred to pertain to the use of intoxicating liquors. The plaintiff alleged that, if the answers of the insured to the questions asked pertaining to intoxicating liquors had been truthful, the policy would not have been issued. The plaintiff alleges that it did not discover the false and fraudulent character of the representations until after the death of George J. Doyen.
There is an allegation of tender to the administratrix and widow of the premium paid. The plaintiff further alleges "that, so long as the said policy of life insurance remains outstanding, there is a grave risk that the evidence of the false and *Page 428
fraudulent character of the representations made by the said George J. Doyen may become unavailable, and further avers that defendants are deliberately delaying action for that reason and on that account."
There is an allegation that it (plaintiff) has no full, complete, and adequate remedy at law, and the plaintiff prays "that it be ordered, adjudged, and decreed that the contract of life insurance be rescinded, and that Policy No. 1,380,042, issued by the Penn Mutual Life Insurance Company, of Philadelphia, Pennsylvania, on the life of George J. Doyen, and hereinbefore described, be delivered up and surrendered to it for cancellation, and the court may hold the same to be null and void, and of no further force or effect; and for such other and further relief as this court may deem just and equitable." Attached to the petition is a copy of the policy and application, together with the report of the examining committee.
On July 13, 1929, the defendant Katharine Doyen, widow of George J. Doyen, as administratrix of his estate, filed her answer, in the nature of a general denial, except as to certain specific admissions of allegations set out in the petition. On the same day, there was filed by "Katharine Doyen, plaintiff," a cross-petition at law, but filed in the same suit and under the same suit number, in which she sought to recover in an ordinary law action against the plaintiff company on the policy of insurance. On August 15, 1929, plaintiff insurance company filed a reply to the answer, and on the same day, the insurance company filed an answer to the cross-petition.
On December 31, 1929, Katharine Doyen, as plaintiff, filed an amendment to her cross-petition at law. On March 11, 1930, Katharine Doyen filed her reply to the answer to the cross-petition, and on March 14, 1930, Katharine Doyen filed a motion to transfer to law, in two divisions, in the first of which she asked to have her cross-petition transferred to law, for assignment and trial, and in the second division, she asked to have her entire cause transferred to law, for assignment and trial. On March 19, 1930, the court sustained Ground 1 of said motion to transfer, and transferred said cause to the law side of the docket, and overruled Ground 2 of said motion. Both sides appealed.
I. The appeal of Katharine Doyen cannot be here considered, because there have been filed no list of errors relied upon *Page 429
for reversal, no brief points of law, and no argument. This is too plain to require the citation of authorities.
II. It will be noted that nowhere does Katharine Doyen in any manner challenge the sufficiency of the petition filed by the insurance company as an action in equity. She has not, by a motion or otherwise, challenged the jurisdiction of the court to try the plaintiff's case, as set forth in its petition, upon the allegations therein set forth. The petition alleges that the plaintiff has no full, complete, and adequate remedy at law. Furthermore, the plaintiff alleges that "there is a grave risk that the evidence of the false and fraudulent character of the representations made by the said George J. Doyen may become unavailable, and further avers that defendants are deliberately delaying action for that reason, and on that account."
The prayer of the petition is that the contract of life insurance and the policy be delivered up and surrendered by cancellation, and that the court hold the same to be null and void. There is no claim made by the defendant that the court did not have jurisdiction to entertain and determine the cause of action filed by the plaintiff. A mere general denial is not sufficient to raise the jurisdiction of the court to try plaintiff's cause, as set forth in the petition, in equity.
Certain statutory provisions (Code, 1927) have a bearing on the question involved:
"10944. Error — effect of. An error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings, and a transfer to the proper docket.
"10945. Correction by plaintiff. Such error may be corrected by the plaintiff without motion at any time before the defendant has answered, or afterwards on motion in court.
"10946. Correction on motion. The defendant may have the correction made by motion at or before the filing of his answer,
where it appears by the provisions of this Code wrong proceedings have been adopted. [Writer's italics.]
"10949. Errors waived. An error as to the kind of proceedings adopted in the action is waived by a failure to move for its correction at the time and in the manner prescribed in this chapter; and all errors in the decisions of the court are waived *Page 430
unless excepted to at the time, save final judgments and interlocutory or final decrees entered of record."
The defendant Katharine Doyen having failed to challenge the jurisdiction of the court to try the issues tendered by the plaintiff's petition in equity, and having answered and having filed her cross-petition of the counterclaim in the equity action, although having denominated it at law, can she thereafter move to have either her so-called cross-petition at law transferred to law, or the entire proceeding transferred to law? The appellee cites three cases which she claims are determinative of the matter before the court. They are Biermann v. GuarantyMut. Life Ins. Co., 142 Iowa 341; Des Moines Life Ins. Co. v.Seifert, 210 Ill. 157 (71 N.E. 349); Insurance Co. v. Bailey, 13 Wall. (U.S.) 616 (20 L. Ed. 501).
In the Biermann case, a suit was brought at law on a policy of life insurance. The defendant insurance company, by way of answer, alleged, in substance, that the insured had made false warranties, and that the policy had been procured by fraud and misrepresentations. After the action had been pending some time, the defendant insurance company filed a cross-petition, praying for a rescission and cancellation of the policy. The cross-petition was denied by the plaintiff, and the defendant moved that the issue thus joined be tried in equity, before trial of the law issues. The court refused to make the transfer. This court sustained the lower court, holding, among other things, as follows:
"The defendant had been brought into a court of law to answer to an action upon its contract. If that contract had been procured by fraud or false representations, such fact was a full, complete, and perfect defense to the action, and, if that defense was made good, the policy would be deprived of all vitality, as fully as could have been accomplished by a decree in equity, formally canceling it. The appropriate law issue for that purpose had already been joined, and was waiting trial before the cross-bill was filed."
In Des Moines Life Ins. Co. v. Seifert, 210 Ill. 157
(71 N.E. 349), the insurance company brought suit in equity, asking for the surrender and cancellation of a policy of insurance on *Page 431
the ground that the policy was obtained by means of false and fraudulent representations. The opinion contains the following language:
"The bill was amended, an answer and replication were filed, and, upon the motion of the appellee to set down the case for hearing, the court found that the bill as amended set forth nofacts giving a court of chancery jurisdiction, and of its own motion entered a decree dismissing the amended bill for want of equity * * *." (Writer's italics.)
In Insurance Co. v. Bailey, 13 Wall. (U.S.) 616 (20 L. Ed. 501), a suit was brought by the insurance company to enjoin the beneficiary from assigning or in any manner disposing of the policies, and it also prayed that she might be compelled by the decree of the court to deliver up the policies to be canceled, and for further relief. The opinion contains the following:
"Proofs were taken on both sides, and, the cause having been duly transferred to the general term, the parties proceeded to final hearing, and the Supreme Court of the district entered a decree dismissing the bill of complaint with costs, but without prejudice, and the complainants appealed to this court."
It nowhere appears that the plaintiffs alleged equitable grounds, for the maintenance of the suit in equity was not questioned. The opinion contains the following:
"Suits in equity, the Judiciary Act provides, shall not be sustained in either of the courts of the United States in any case where plain, adequate, and complete remedy may be had at law, and the same rule is applicable where the suit is prosecuted in the chancery court of this district."
There is not here before us, and we do not here decide, the question whether, had Katharine Doyen, in a proper way, challenged the jurisdiction of the court to try the cause set forth in the petition in equity filed by the insurance company, she might have been entitled to transfer the entire cause to the law side of the calendar for trial to a jury. We have here a case where, without in any manner challenging the sufficiency of the petition as one in equity, alleging that the plaintiff had no plain, speedy, and adequate remedy at law, the defendant answered by way of *Page 432
general denial the said petition in equity, and thereafter filed in said equity action, although denominated in the cross-petition at law, a "cross-petition or counterclaim," by which she sought to recover on the policy which the insurance company sought to have canceled.
If Katharine Doyen considered that the plaintiff's action had been erroneously brought, she was permitted, under the provision of Section 10946 hereinbefore quoted, to file a motion to have the error corrected, provided this is done "at or before the filing of his answer." This she failed to do, and she must be held to have waived the right to file the motion to transfer the cause of action set up by the insurance company in its petition in equity. Has she any greater right to have her own cross-petition transferred? She was under no obligation to file a cross-petition in the equity action. She might have brought an independent action at law, to recover on the policy. Even if, after she filed her cross-petition in the equity action, she discovered that she desired to have her claim on the policy tried as a law action, she could have dismissed her cross-petition and brought an independent action at law. She could do this at any time, at least before the assignment of the cause for trial.
The defendant, by filing her answer to plaintiff's petition, acquiesced in the jurisdiction of the court over the cause of action pleaded by the plaintiff. By filing in the equity action, as a part of her answer, the cross-petition or counterclaim, she also acquiesced in the jurisdiction of the equity court over the cause of action set forth in her cross-petition or counterclaim. This was the situation when she filed her motion to transfer. Manifestly, she was not entitled to have the entire cause of action transferred to law.
In the case of Ryman v. Lynch, 76 Iowa 587, the plaintiff brought a suit in equity, to foreclose a mortgage. The defendant pleaded a counterclaim, asking damage against the plaintiff for slander. The court, on motion of the defendant, refused to transfer the case to the law docket, to try the counterclaim to a jury. Afterwards, when the cause was reached for trial, the defendant demanded a jury for the trial of his counterclaim, which was refused; and these refusals are assigned as error. This court said, quoting Section 2517 of the Code, 1873 (now Section 10947 of the Code of 1927): *Page 433
"`Where the action has been properly commenced by ordinary proceedings, either party shall have the right by motion to have any issue heretofore exclusively cognizable in equity tried in the manner hereinafter prescribed in cases of equitable proceedings; and, if all the issues were such as were heretofore cognizable in equity, though none were exclusively so, the defendant shall be entitled to have them all tried as in cases of equitable proceedings.' It will be observed that the language of the section is: `Where the action has been properly commenced by ordinary proceedings, either party may, by motion,' etc. Does it follow, as a legal sequence, that, in actions properly commenced by equitable proceedings, the same rule is to follow as to law issues tendered? The letter of the statute surely does not warrant it. We have no right to carry the law further than the legislature intended, and, having the subject of the separation of such issues for trial before it, if more had been intended, it would naturally have been expressed. Under familiar rules for statutory construction, there is reason for thinking that, having provided in terms for such a separation in one class of actions, it was designed to exclude it in the other. Add to this Section 2740, and we see little room for doubt. It is as follows: `Sec. 2740. Issues of fact, in an action in an ordinary proceeding, must be tried by jury unless the same is waived. All other issues shall be tried by the court, unless a reference thereof is made.' The tendering of the opposite issue does not change the character of the proceeding. It retains its character for the purpose of trial, until changed by the court. This, then, after the answer was filed, was an issue of fact in an equitable proceeding, and must, under Section 2740, be tried by the court."
It is a general rule that, when equity has once obtained 2. EQUITY: jurisdiction of a controversy, it will determine jurisdic- all questions material or necessary to the tion: accomplishment of full and complete jurisdiction complete between the parties, even though in doing so it relief may be required to pass upon some matters granted ordinarily cognizable at law. Johnson v. Carter,
though 143 Iowa 95, 100; Clinton v. Shugart, 126 Iowa subject- 179, 188; Reiger v. Turley, 151 Iowa 491. See, matter also, Fisher v. Trumbauer Smith,
partly legal. *Page 434 160 Iowa 255; Williamsburg Sav. Bank v. Donohoe, 203 Iowa 257.
In the recent case of Pace v. Mason, 206 Iowa 794, the plaintiff brought a suit in equity to recover upon a promissory note executed by the defendants Mason. One Oxford was made a defendant, as having a subsequent interest in the mortgaged premises. He answered, admitting the execution of the note and mortgage, but alleging that the interest was paid, and that only the principal remained unpaid. Oxford filed also a cross-petition, alleging various matters, demanding judgment for $2,000; and the plaintiff, Pace, moved to transfer to the law docket Oxford's cross-petition. This motion was sustained, and, on appeal, was by this court reversed. This court said:
"This action was properly a case in equity. The plaintiff elected to pursue his remedy in a court of chancery. The statute makes no provision, in a suit properly brought and maintainable in equity, for transferring to the law docket issues at law arising on the answer, though it does make provision for transfer of equitable issues arising in an action properly brought at law. The statute decides the forum in which the issues are to be tried. When a suit is properly brought in equity, all issues arising therein are triable by equitable proceedings, without a jury. The statute does not, in such case, permit separation of issues for trial in different forums. Eller v. Newell, 159 Iowa 711,715; Fisher v. Trumbauer Smith, 160 Iowa 255; Marquis v.Illsley, 99 Iowa 135; Wilkinson v. Pritchard, 93 Iowa 308; Rymanv. Lynch, 76 Iowa 587; Klopp v. Chicago, M. St. P.R. Co.,156 Iowa 466, 469; Crissman v. McDuff, 114 Iowa 83; Williamsburg Sav.Bank v. Donohoe, 203 Iowa 257; Bennett Sav. Bank v. Smith,171 Iowa 405. Most, if not all, of the cases in which the question has arisen have been those in which the defendant has raised and attempted to have transferred issues at law, but the principle must be applicable, whether invoked by plaintiff or by defendant."
This court also said:
"The issues arising on the cross-petition have not been tried. The defendant is entitled to the judgment of the court upon them, and the case should be remanded for trial accordingly." *Page 435
Under the provisions of the statutes and the rulings of this court hereinbefore referred to, the lower court erroneously transferred defendant's cross-petition for trial as a law action, and therefore the cause must be, and is, reversed. — Reversed.
MORLING, C.J., and EVANS, FAVILLE, and KINDIG, JJ., concur.
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Bonds Enforceable as Stay Bonds: VALIDITY. A bond conditioned for
1 the payment of the price of property sold by order of court, in such sums as the court may direct, and providing that, in case of
2 default, it is to have the force and effect of a stay bond, and execution may issue against the obligors, is a valid obligation, *Page 528
4 enforceable by an action, as the provision giving it the force of a stay bond, etc., applies only to the remedy, and is not, by its terms, made the exclusive remedy.
WHERE VOID IN PART. Whether such provision, giving it the force
5 of a stay bond, is invalid, is immaterial, since, if invalid, it does not affect the remainder of the bond.
CONSTRUCTION. Where the obligation of a bond to a receiver is to pay whatever sums the court requires, not exceeding a specified
10 amount, the receiver cannot complain of the refusal to allow him the full amount of the bond.
ATTORNEY FEES. An obligee, in an action on a bond, cannot have 10 judgment for attorney's fees, where he failed to show that he is entitled thereto.
INDEMITY TO SURETY: Consideration. An agreement to save a surety 3 harmless, if he would execute a bond, made to induce the surety 7 to sign, is not without consideration.
LAW PARTNERS AS OBLIGORS: Scope of business. An agreement by a partner in the name of his firm, engaged in the practice of law,
7 to save a surety harmless if he would execute a bond in a case in 8 which the firm was engaged, being outside the scope of the partnership business, is not binding on a partner who did not authorize or ratify the signature.
EVIDENCE OF AUTHORIZATION BY PARTNER. A partner in a law firm executed an agreement, in the name of the firm, to indemify a surety if he would execute bond in a case in which the firm was engaged. Another partner had control of the litigation, but testified that he did not know of the instrument until after it was
8 given. The former testified that he obtained the surety at the latter's request, and that they discussed the matter before and after the security was given. The principal was unable to secure the bond, and applied to the firm to obtain it, and it was agreed that he would pay them to do so. Held, sufficient to charge such partners with liability.
RIGHT OF ACTION: Judgment against surety. A surety is not precluded from maintaining an action to ascertain the liability of others on
9 an agreement to save him harmless, because no judgment had been rendered against him on his obligation, where, by the bond, his obligation was fixed by a judgment against his principal.
RELEASED BY APPEAL. A surety on a bond executed to a receiver, in an action for payment of such judgment as the court might
6 direct, is not released by his principal taking an appeal, where he knew that the appeal was taken, and assented, thinking it might release him, and where it was not authorized or assented to by the receiver. *Page 529
1
2
The transactions out of which this action grew are as follows: Prior to September, 1890, Eliza Laing and Will Scoville were partners in the plumbing business. Eliza Laing died, and R. F. Young, as administrator of her estate, brought an action in the district court of Polk county for the settlement of the partnership affairs. In December, 1890, John Wyman was appointed receiver, with authority to take possession of the partnership property, and in the same month the district court authorized him to sell the 1 property on terms stated as follows: "The purchaser will be required to pay twenty-five per cent. of purchase price in cash or certified check; and for the remaining seventy-five per cent., the purchaser will be required to give bond, with sureties to be approved by the court, for the payment of the balance of the purchase price, at such time as the VOL. 108 Ia — 34 *Page 530
court shall hereafter order and direct, and bond will have the force and effect of a stay bond, upon which the court will order execution to issue in default of payment, in pursuance of its orders to be hereafter made." The property was sold to the surviving partner Scoville, one-fourth of the purchase price was paid by him, and a bond signed by himself as principal, and the plaintiff Seeberger and others as sureties, was given for the remainder. The bond was entitled as in the case of the administrator against Scoville, and contained the following: "Whereas, an action was begun in this court at the September term, 1890, for settling partnership interests; and whereas, John Wyman, Esq., was appointed receiver of the partnership assets, and, upon order of the court, said assets were sold at public auction by said receiver, and Will Scoville, defendant herein, became the purchaser thereof for the sum of eight thousand two hundred and twenty-five dollars; and, whereas, the said Scoville has paid the said receiver on said purchase price the sum of two thousand and fifty-six dollars and twenty-five cents, and there now remains of said purchase price unpaid the sum of six thousand one hundred and sixty-eight dollars and seventy-five cents; and, whereas, a controversy has arisen between the plaintiff and the defendant as to the amount due and to be paid over by said Will Scoville on said purchase price: Know all men by these presents, that we, Will Scoville as principal, and J. D. Seeberger and W. H. Harwood as sureties, are held and firmly bound unto John Wyman, receiver in said cause, for the payment of the remainder of said purchase price, to-wit, six thousand one hundred and sixty-eight dollars and seventy-five cents, with interest at 6 per cent. from this date, which well and truly to be made we bind ourselves, our executors, heirs, and assigns, firmly by these presents. Sealed with our seal and dated this 16th day of January, 1891. Now, therefore, this bond is upon condition that, if the said Will Scoville shall, from time to time, pay whatever amounts the court shall order and require, and *Page 531
in the manner as required by said court to be paid, not exceeding the sum six thousand one hundred and sixty-eight dollars and seventy-five cents, then this obligation shall be void and of no effect. But if the said Will Scoville shall fail to make payment as ordered by said court, not exceeding in the aggregate balance due on said purchase price and interest, then this bond to have the force and effect of a stay bond, upon which execution may issue against Will Scoville and his sureties as aforesaid, for the enforcement of the payment so ordered by this court; and the principal and sureties hereby agree to make payment according as the court shall direct, and, in case they fail to make the payments as ordered, then this bond shall have the force and effect of a stay bond, and execution may issue thereon against the said principal and the sureties aforesaid. Witness our hands this 10th day of January, A. D. 1891. Will Scoville. J. D. Seeberger, W. H. Harwood."
3
To induce the plaintiff to sign the bond, A. H. McVey, of the firm of Cole, McVey Cheshire, gave to him a writing, of which the following is a copy: "Des Moines, Iowa, January 10, 1891. In consideration of J. D. See-berger, Esq., having signed the bond of Will Scoville at our request, in the case of Young, Administrator, etc., vs. Scoville, we hereby agree to save said J. D. See-berger, Esq., harmless from all liability of every kind on said bond, and by reason of having signed the same. Cole, McVey Cheshire."
In May, 1893, the district court rendered judgment directing Scoville to pay the receiver the amount of six thousand one hundred and seventy-eight dollars and seventy-five cents, with interest thereon from the tenth day of January, 1891, at six per cent. per annum. An appeal to this court was taken by Scoville, a supersedeas bond in the sum of one thousand dollars was filed by him, and in October, 1896, the judgment was affirmed. See Young v. Scoville, 99 Iowa, 177. The judgment is unpaid, Scoville is insolvent, and *Page 532
demand has been made of the plaintiff for the payment of the amount due.
The plaintiff alleges that Cole, McVey Cheshire claim that there is a legal defense to the bond signed by him, and that they are not liable on the instrument delivered to the plaintiff by McVey. The plaintiff asks that Cole, McVey Cheshire be required to make defense, if any there be, to the bond signed by him, and, if he is found to be liable thereon, that the amount be ascertained; that the liability of Cole, McVey Cheshire on the instrument delivered by McVey be ascertained; and that a decree be rendered against them, with the right to an execution for all sums which he shall pay or be held liable for on account of the instrument he signed. General equitable relief is also asked. The defendant Wyman, as receiver, insists by answer that there is no defense to the bond signed by the plaintiff, and in a petition of intervention, which was treated as a cross petition, demands judgment thereon against the plaintiff, and against the defendants Scoville and Harwood. The answer of Judge Cole denies all liability on his part, and avers that the plaintiff is not liable on the bond signed by him. The answer of McVey alleges that the instrument delivered by him to the plaintiff was without consideration, and denies that there is any liability on account of it. The answer of Cheshire denies liability on his part, and alleges that the instrument delivered by McVey was unauthorized on the part of the firm of Cole, McVey Cheshire, and denies that he ever assented to or ratified it. The answer of Harwood denies liability on the bond which he signed. Other matters are set out in different pleadings, but we do not find it necessary to refer to them.
The district court adjudged the bond signed by the plaintiff to be valid and binding as against all the persons who signed it, and rendered judgment thereon in favor of the receiver, Wyman, and against Scoville, the plaintiff, and Harwood for seven hundred and twenty-four dollars and ninety-five cents, that being the amount taxed against Scoville *Page 533
as costs in the case of Young v. Scoville; and for four thousand five hundred and twenty dollars and seventy-two cents, that being the sum adjudged to be due the administrator, less one-half the costs. The district court further adjudged that Cole and McVey were liable on the instrument delivered by the latter, and judgment was rendered against them, and in favor of Seeberger, for the amount of recovery against him. The decree also contained other provisions, which need not be noticed.
4
5
6
I. It is contended that the bond signed by the plaintiff does not constitute an obligation which can be made the basis of an action against him. That claim is founded on the provision contained in the instrument to the effect that, in case its signers fail to make the payment as ordered, then the bond should have the force and effect of a stay bond, upon which execution might issue. It is said that the only consequence which resulted from the failure to make the payments required by the order of the court was that for which the portions of the bond referred to provided, — that is, liability to an execution issued to enforce the order, — and that, if that provision of the bond was invalid, the signers of the bond are released from liability. Numerous authorities are cited to illustrate the familiar rule that "sureties and grantors are never chargeable beyond the strict terms of their engagement." 1 Brandt Suretyship, section 93. That rule is not disputed in this case, and we are led to inquire as to the nature and scope of the bond which the plaintiff and Harwood signed. That it was designed to secure the payment of the sums which Scoville should be ordered and required to pay, not exceeding in the aggregate the balance specified in the bond, and interest, cannot be questioned. It "held and firmly bound" the sureties, as well as the principal, to pay those sums. The sentence, "and the principal and sureties hereby agree to make payment according as the court shall direct," leaves no doubt as to the obligations of the sureties. The provision, in terms, giving *Page 534
to the instrument the effect of a stay bond, and providing for the issuing of an execution thereon, merely related to the remedy in case of default, and was not, in terms nor by necessary implication, made the exclusive remedy. Although the surety has a right to stand upon the strict terms of his contract, the scope and effect of that contract are to be ascertained and determined according to the ordinary rules which apply to the interpretation of contracts. 1 Brandt Suretyship, section 92-94. When those rules are applied to the bond in question, we do not think its intent and scope are doubtful. Whether the provisions giving to the bond the effect of a stay bond, upon which execution might issue, are valid, we do not need to determine. If not valid, they do not affect the validity of the remainder of the bond. They are clearly separable from the undertaking into which the signers of the bond entered. It was said in U. S. v. Hodson, 10 Wall. 395, that "it is a settled principle of law that where a bond contains conditions, some of which are legal and others are illegal, and they are severable and separable, the latter may be disregarded and the former enforced." See, also, State v.Findley, 10 Ohio, 51; State v. Layton, 4 Har. (Del.) 516; Presbury v.Fisher, 18 Mo. 50; Murfree Official Bonds, section 142; 4 Am. Eng. Enc. Law (2d ed.) 676. It is claimed that the taking of an appeal in the case against Scoville had the effect to release the sureties on the bond in question. The plaintiff knew that the appeal was taken, and evidently assented to it, thinking that it might result in releasing him from liability. A further objection to the claim is that action taken by Scoville alone, not authorized or assented to by the receiver or the administrator, would not release the sureties of Scoville. We conclude that the instrument signed by the plaintiff is valid as an obligation upon his part, and that an action thereon can be maintained.
7
8
II. We next consider the instrument delivered by McVey. The evidence shows that it was signed and delivered *Page 535
pursuant to an agreement made by McVey to induce the plaintiff to sign the bond, and it is not, therefore, without consideration. Since it was signed and delivered by McVey, it is clear that as to him it is valid. The firm of Cole, McVey Cheshire was organized to transact the business of practicing law, and it is not shown, nor is there anything in the record from which it can be presumed, that the execution of such instruments as that delivered to the plaintiff was within the scope of the partnership business, or in any manner authorized by all the members of the firm. The decided preponderance of the evidence shows that Cheshire did not authorize the execution of the instrument in the firm name, and that he did not at any time ratify it. As soon as he learned of it, — and that was several years after it was given, he refused to be bound by it. He did not at once notify the plaintiff that the instrument was unauthorized, but nothing transpired thereafter which estops Cheshire to assert his nonliability. He rendered a small amount of service in connection with the Scoville litigation, but there was nothing in the nature of what he did or learned to apprise him of the existence of the obligation to the plaintiff until he learned of it as we have stated. We conclude that he is not bound by it. The evidence in regard to the liability of Judge Cole is conflicting, and perhaps no conclusion in regard to it can be reached which would be entirely free from doubt. He states that he did not know of the instrument until after the judgment against Scoville was affirmed by this court. But we are of the opinion that a preponderance of the evidence shows that in this he errs. He had control of the litigation in which the obligation was given, and it was Mr. McVey's recollection that he obtained the plaintiff as surety at the request of Judge Cole, and that the matter of securing the plaintiff against loss was fully discussed with Judge Cole, both before and after the security was given. Scoville was unable to procure sureties, and applied to Cole, *Page 536
McVey Cheshire to obtain them, and it was agreed that he would pay the firm two hundred dollars to do so. In consequence of that agreement, the sureties were procured, and that amount was charged. After the judgment against Scoville was affirmed by this court, the plaintiff had several conversations with Judge Cole, in which the liability of the former was discussed, and in which the latter stated that he did not intend that the former should have any trouble on account of that liability. In one interview, Judge Cole proposed to see Harwood, McVey, and Cheshire, and have each one assume a part of the liability, and thus settle it, the amount which Judge Cole proposed to assume being about one thousand three hundred dollars. It is true that this proposition did not alone show that he recognized any liability to the plaintiff, and that his statements to the effect that he did not intend to permit the plaintiff to suffer by reason of his suretyship may have referred to the belief that Scoville would succeed in his litigation. But when Judge Cole's relation to that litigation is considered, his responsibility for the protection of Scoville's rights, and his belief that he ought to succeed in his defense, the necessity for procuring a sufficient bond, the charge made for it, the testimony of McVey and the plaintiff, and other, although less direct, evidence, to which we have not referred, lead us to the conclusion that Judge Cole knew of and authorized, on his part, the execution of the instrument to the plaintiff, even though the fact has escaped his recollection, and that he is bound by it.
9
III. It is next contended that the plaintiff has no right to maintain this action before judgment is rendered against him on his obligation. By the terms of the obligation, the liability of the obligors was to be fixed by the order of the court requiring payment by Scoville. It was said in Wilson v. Smith, 23 Iowa, 252, that, where a bond is conditioned to save the obligee from damages, no right of action accrues thereon until the obligee, by the payment of the judgment or some part thereof, has been damaged. *Page 537
Judgment has not been rendered against the plaintiff in this case, and he has not paid anything on the judgment rendered against Scoville, but his liability was fixed, under the terms of his obligation, by that judgment. As this is an action in equity, the power exists, not only to ascertain and determine the liability of the parties to the two obligations in controversy, but also to render such a decree as will protect and enforce the respective rights of all parties to the action, including the rendering of judgment in favor of the plaintiff.Burroughs v. McNeil, 22 N. C. 297; Daniel v. Joyner, 38 N. C. 520;Chace v. Hinman, 8 Wend. 452; Conner v. Reeves, 103 N. Y. App. 527 (9 N.E. Rep. 439). We are of the opinion that the plaintiff has shown himself entitled to the relief he asks against Cole and McVey.
10
IV. The receiver, Wyman, complains of the refusal of the district court to allow him the full amount of the obligation signed by the plaintiff and others, with interest thereon from its date, but fails to show that his complaint is well founded. The undertaking of the obligors was to pay whatever sums the court should require of Scoville, not exceeding the amount specified. Kuhn v. Myers, 37 Iowa, 351. The receiver also claims an allowance for attorney's fees, but fails to show that he is entitled to it. Newell v. Sanford, 13 Iowa, 463. We have examined this case with much care, but without finding reversible error in any matter of which the parties appealing complain in argument. The bond signed by the plaintiff and Harwood authorized judgment against them for the amount, including costs, taxed to Scoville, for which the decree of the district court provides. The decree appears to be right and is AFFIRMED.
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One Walter M. Blowers was the owner in fee of Lot 5 in Block 39 in the original plat of East Waterloo, east of the Cedar River in the city of Waterloo, Black Hawk County, Iowa. On February 8, 1921, he, with his wife, entered into a contract of lease with O.F. Teeter, leasing said property for a term of 20 years from and after March 1, 1921. This lease provided, among other things, that the lessee agreed to erect a building on said premises within six months from the date of the lease, in accordance with the building and other ordinances of the city of Waterloo, and that the lessee should have a right to remove said building or buildings from said premises at the expiration of the lease, and should remove the same if notified by the owner or landlord so to do. The lease further provided that the tenant might sell or assign the lease, with all rights thereunder, provided said lease or assignment should be in writing, duly acknowledged and recorded, and provided further that said sale or assignment "shall not relieve or release the assignor thereof from any obligations, covenants, etc., herein contained, which shall or may accrue and become a cause of action in favor of the landlord hereunder."
On the 4th day of February, 1921, O.F. Teeter and N.W. Frisbie entered into a lease contract with W.W. York, in which *Page 106
they leased said property to York for a term of 20 years. This lease contract provided that the lessees would erect a building on said property, to cost not more than $15,000, and at the end of the term, the buildings upon said premises would either be purchased by the first parties or the second party would remove the same immediately following the expiration of the lease.
On the 31st day of May, 1921, York entered into a written contract with Register Buxton, providing for the erection of a building on the lot in controversy according to certain drawings and specifications, and thereafter, these contractors proceeded to carry out the contract. They started excavation for the basement, and procured the material necessary for the erection of said building; but, after they had worked for some time thereon, York breached his contract, by failure to make payments to the contractors in accordance with the terms of the contract, and they ceased work thereon. York then went into bankruptcy. Register Buxton filed a mechanic's lien, claiming an amount due them in the sum of $1,227.83, alleging that Blowers was the owner of the property; and later, they sought to foreclose this mechanic's lien against the lot owned by Blowers. They first sued at law, asking judgment for the amount due them, then amended their petition, and asked a foreclosure of the lien. To fully understand this situation, it may be further said that, under the contract, York was to pay for the material and labor, and the contractors were to receive as compensation a sum equal to 8 per cent of the cost thereof, and $1.00 per hour for the services of one member of the contracting firm for supervising the work; also pay for all drayage charges and liability insurance.
The first question raised here involves the question of waiver and estoppel. It appears from the record that Register Buxton brought an action at law on the same account against the York Tire Service Company and W.W. York, and obtained 1. MECHANICS' a judgment in the sum of $1,127.80. This LIENS: proceeding was aided by an attachment against waiver: the defendants in that action, special execution action at was issued therein, and certain property sold; law aided by but the amount realized was small, and did not attachment: satisfy the judgment thus obtained. In this effect. action it is sought to foreclose a mechanic's lien against the York Tire Service Company, W.W. York, and Walter M. Blowers, the title holder of the land. It is the claim *Page 107
of the defendants that, because the action was brought at law, aided by attachment and the sale of the property under special execution, the mechanic's lien was waived, or that the plaintiff is estopped from claiming any rights under the mechanic's lien. No authorities are cited to support this contention, nor have we been able to find any so holding. The authorities we do find hold exactly to the contrary. In other words, it is held that the bringing of a personal action on a claim or account, aided by an attachment, is not a waiver of the lien. 40 Corpus Juris 317; 18 Ruling Case Law 980, Section 122; 3 Ann. Cas. 1098. The notes to the above citation set out many cases supporting the doctrine here announced. This contention of the appellees' is not sustained by principle or authority.
It is next claimed that the court erred in holding that the real estate in controversy was not subject to this mechanic's lien. It will be noted from the above statement that, under the terms of the original lease, whatever 2. MECHANICS' improvements were put upon this place by the LIENS: right lessee, Teeter, were to be removed at the to lien: expiration of the lease. This is the improvement distinguishing feature between the case at bar by tenant and the case of Queal Lbr. Co. v. Lipman, 200 with right Iowa 1376. Reliance is also placed on the case to remove. of Janes v. Osborne, 108 Iowa 409; but in that case there was no agreement that the improvements were to be removed at the expiration of the lease.
We have lately had occasion to review a very similar situation in the case of Lane-Moore Lbr. Co. v. Kloppenburg, 204 Iowa 613. We there discussed Section 10270, Code of 1924, as to the meaning of the term "owner." We there said:
"`* * * a mechanic's lien on the estate or property of a lessor cannot be predicated on his mere knowledge that improvements are being made by the lessee, or on his knowledge and acquiescence, permission, or failure to object.'"
After discussing certain particular cases therein set out, we further said:
"Generally speaking, the subjects discussed there relate to situations where a vendor sold real property to a vendee under the agreement to make improvements; a lessor leased with the *Page 108
understanding that the lessee should construct buildings which should remain at the end of the term, and the landlord thereby become the benefactor * * *. Presented for review now is a simple arrangement whereby a landlord, in a lease with his tenant, permits the latter to remove any betterments or buildings placed thereon by him (the tenant)."
We then cite Oregon Lbr. Co. v. Beckleen, 130 Iowa 42, and quote therefrom as follows:
"Here, the permission to O'Neal to build was on condition that he might remove the building, and was not based on any benefit to the landowner. It was a mere consent for the supposed advantage of the tenant, without thought of gain to the landlord. To charge the land in such a case would be equivalent to saying that a landowner may not consent to the erection of an improvement on the leased premises without rendering them liable to the payment of the cost incurred. Such, of course, is not the law."
In line with these decisions is the case of Ellis v. Simpson,199 Iowa 671.
It is quite well settled in this state that, before a lien can be maintained, there must be a contract, either express or implied, with the owner. Hoag Griffith v. Hay, 103 Iowa 291;Des Moines Sav. Bank v. Goode, 106 Iowa 568; Queal Lbr. Co. v.Lipman, supra.
There is no claim here that there was any contract between Register Buxton and Blowers, the owner of the land; and if there be a liability here, it is because of the statutory definition of the word "owner." The first subdivision of Section 10270, Code of 1927, provides that:
"`Owner' shall include every person for whose use or benefit any building, erection, or other improvement is made."
The question, therefore, narrows itself to whether or not this building was to be erected on this property for the benefit of Blowers. It is foregone, of course, that it was not for the "use" of Blowers. The contract, as stated, provides that, at the expiration of the lease, the lessee was to remove the building. Under these circumstances, it cannot be said that the building was *Page 109
for the benefit of Blowers. More than this, the fact situation in the case shows that there was in fact no building erected on the property that could, in any way, inure to the benefit of Blowers, even though the contract were other than it is. It must follow necessarily, therefore, that Register Buxton were not entitled to have this mechanic's lien foreclosed as against the real estate owned by Blowers. This is in accordance with the finding of the district court; and while many other questions are discussed, this being sufficient to sustain the ruling of the district court, the other questions will not be discussed. —Affirmed.
EVANS, FAVILLE, De GRAFF, and KINDIG, JJ., concur.
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Testator, J.W. Ruess, a bachelor who lived in West Liberty, died on October 7, 1946, at seventy-two. His will, dated May 15, 1942, was admitted to probate without objection *Page 1379
in November 1946. This action to set aside probate was commenced in June 1947 by eleven nieces and nephews, issue of deceased brothers and sisters of testator.
The will was prepared by attorney J.E. McIntosh of West Liberty. Subject to payment of debts and two other unimportant provisions, the will divides the estate into three equal parts between a nephew, Louis Ruess, a niece, Hazel Romaine Consamus, and (the remaining part to) a sister, Mrs. Hoffelder, and her son, a nephew, Raymond Hoffelder. These four beneficiaries and Louis as executor are proponents.
By deeds dated the day before the will bears date testator had conveyed his 80-acre farm to the nephew Louis and wife and his home in West Liberty to the nephew Raymond. The will provides the farm was valued at $12,000 and the home at $5000, these amounts should be considered part of the estate and the shares of Louis and Raymond respectively charged therewith. Louis is named executor without bond. The total estate approximates $40,000 in value.
Testator lived with his widowed mother and unmarried sister on a farm near West Liberty until 1918 when the three moved into town together. After the mother died testator and his sister Frances continued to live in the same home until Frances' death in 1940. Testator then lived alone his remaining six years.
The trial court submitted the issue of mental incapacity to the jury who found for contestants. In different ways proponents have challenged the sufficiency of the evidence on that issue. We first consider such challenge without reference to the numerous errors assigned upon questions of evidence.
I. We are inclined to hold the evidence, viewed in the light most favorable to contestants, sufficient to raise a jury question as to mental incapacity.
[1] There can be no doubt contestants had the burden to prove mental incapacity at the very time of making the will. See In re Estate of Grange, 231 Iowa 964, 975, 2 N.W.2d 635, 641; In re Hayer, 230 Iowa 880, 884, 299 N.W. 431, 434; annotation 168 A.L.R. 969, 970, 983.
Testator did not engage in business after he moved to West Liberty although he apparently looked after his property until *Page 1380
his last illness beginning in January 1946. Most of the evidence relates to the period following the death of the sister Frances in 1940. From that time on testator had hardening of the arteries which caused a serious heart condition at least by July 1945. In January 1946, he was very sick with a cardiorenal vascular disease. Testator was confined in an Iowa City hospital from July 6, 1946 until September 21, he then became unmanageable but not violent, was adjudged insane by Johnson county commissioners of insanity and taken to the State Hospital for the Insane at Mount Pleasant where he died October 7, 1946.
Testator had several illnesses during his last six years. He was a patient at the University Hospital in Iowa City for about ten days in April 1941. He then complained of severe pain in his abdomen and shortness of breath on mild exertion. The doctors found moderate arteriosclerosis with hypertension. Testator was examined twice at this time by Dr. Miller of the University Psychopathic Hospital because he had delusions there was glass in his food, "they" might want to poison him and at night somebody was looking in at him. On the second examination by Dr. Miller, however, these ideas had disappeared.
Testator (then sixty-seven) was next a patient at a Muscatine hospital from May 24 to 28, 1942 — again complaining of severe pain in his left side which could have been caused by a stone in the ureter. His trouble was diagnosed as ureteral colic. For two weeks in June and July 1943, testator was in Mercy Hospital in Iowa City, troubled with similar pain in the left abdomen and colitis. The hospital record for July 5 states the patient feels much better and "finally [is] becoming convinced his trouble is in his head."
Testator returned to Mercy Hospital on July 5, 1945, for seventeen days. The doctors diagnosed his illness then as myocarditis and heart disease. His arteriosclerosis had advanced to a moderately severe stage. However, Dr. Hennes who attended him at this time testified (as proponent's witness) testator was then normal mentally. His next trip to the hospital was during his last illness, as stated, in July 1946, following several months confinement to his own home and that of his nephew Louis Ruess. *Page 1381
The attesting witnesses to the will were Attorney McIntosh, who died before the trial, and his then secretary, Mrs. McMann, who testified for proponents. She knew testator casually. Her recollection of the making of the will was rather indistinct but she believed testator came to the law office in the morning to give the attorney the things he wanted put in his will, it was written up, and testator returned that afternoon and executed it. Mrs. McMann gave her opinion testator was of sound mind on that day and said she had not seen him "do anything foolish" at any time.
A contestant (a brother of proponent Louis) testified he saw testator on Main Street about 8:45 a.m. of the day previous to the date of the will, he appeared very weary, pale and worn out, Louis was with testator, assisted him to the car and they drove away. This is the nearest contestants' direct testimony comes to the time of making the will.
Seven of the eleven contestants testified to observations made by them of testator at various times generally between their Aunt Frances' death in 1940 and testator's death six years later, but expressed no opinion as to their uncle's claimed unsoundness of mind. Two other contestants told of their observations of testator and gave the opinion, based thereon, he was of unsound mind on May 15, 1942. Two other nonexpert witnesses, not parties to the suit, after detailing certain facts regarding testator, expressed an opinion testator was unsound mentally from about the fore part of 1941 until his death.
Two expert witnesses testified for contestants. Dr. Miller who, as stated, examined testator in April 1941, and Dr. Woods, a prominent psychiatrist, who had never seen him but gave the opinion testator was mentally unsound on and after May 14, 1942, in response to a long hypothetical question based on the hospital records of his confinement in the different hospitals as above related and various assumed matters of which it is claimed there was evidence.
Dr. Miller testified that in April 1941 testator was neurasthenic, showed signs of generalized arteriosclerosis and sclerosis of the blood vessels of the brain, had arteriosclerotic heart disease but not senility, and was of unsound mind when he first examined him but was considerably improved the following *Page 1382
day. Dr. Miller indicated testator's unsoundness was not permanent but transitory — he did not appear psychotic. Dr. Woods disagreed with this view, however, and testified in effect that testator's mental condition was progressively worse from April 1941.
Some of the nonexpert testimony for contestants is that testator changed for the worse both physically and mentally following his sister's death. Perhaps the most emphatic evidence was given by contestant Mary Ipsen, in part substantially as follows:
"After her funeral, I saw Uncle Will in the summer and he was dejected, depressed and sort of off in space. From that time until he was in the hospital in Iowa City in 1941, there was an increase in his dejectedness. Once when I saw him in 1941 he was unshaven, staring at the ceiling, sort of talking to himself, and mumbling. I heard him say `They have put glass in my food,' also `There is a man outside the door; he is a lawyer; he is trying to get my money; all the nurses are crazy about me. They want to marry me. Somebody is trying to get me. I am afraid.' He did not appear to know me.
"After he left the hospital I saw him in West Liberty on several occasions. He did not appear to recognize me or know who I was. * * * He was not aware of the fact I was there. He would ramble and not be able to carry on any coherent conversation, talk to himself, and look off into the distance. * * *
"He said he was afraid and was going to keep his doors and windows locked, `they are trying to get all my money,' and whom he meant by `they' I don't know. * * *
"In April 1942 I stopped at my uncle's residence with my sister, Elizabeth. He did not appear to know I was present and did not appear to recognize me. * * *
"Up until his last illness my observation was he was in a condition of decline."
There is quite a little other evidence of similar character, largely from other contestants. Together with Dr. Woods' testimony, there is substantial evidence testator was of unsound mind in April 1941, grew progressively worse thereafter and, it may be inferred, was incapacitated on May 15, 1942, when the will *Page 1383
was made. Unquestionably he was unsound the last few weeks and probably the last few months of his life.
It is true there is an impressive array of witnesses for proponents who have drawn a quite different picture of testator. Some thirteen nonexpert witnesses, all apparently disinterested, most of them of long and rather intimate acquaintance (many of over thirty years) with testator, testified in effect they never observed any of the unusual matters related by contestants and gave their opinion he was of sound mind down to the time of his last illness in 1946.
Dr. Ady, testator's home physician who treated him except during the doctor's naval service from April 1, 1942 to December 15, 1945, also said he believed testator of sound mind whenever he saw him until about the summer of 1946. And, as stated, Dr. Hennes who treated testator in the Mercy Hospital in 1945 testified he then appeared mentally normal.
[2] But the preponderance of the evidence does not necessarily depend on the number of witnesses on a given side nor their interest in the outcome of the trial, although these are proper considerations for the jury whose function it was to resolve the conflict in the testimony.
[3] We have frequently said in effect that precedents are not controlling upon a question of this kind because the facts are usually not similar. However, these decisions lend support to our conclusion on the sufficiency of the evidence: In re Estate of Ring, 237 Iowa 953, 22 N.W.2d 777; In re Estate of Maier,236 Iowa 960, 20 N.W.2d 425; In re Estate of Grange, supra, 231 Iowa 964,2 N.W.2d 635.
II. The remaining assigned errors pertain to questions of evidence. Over proponents' objections there were received in evidence the hospital records of testator's confinement and care in the University, Muscatine, Mercy, and Mount Pleasant Hospitals during the periods above mentioned from April 1941 to October 1946. While portions of these records bear rather remotely upon the issue in the case, we are inclined to hold them, except as indicated in Division III hereof, admissible. Gearhart v. Des Moines Ry. Co., 237 Iowa 213, 219, 21 N.W.2d 569, 572, and citations.
[4] We conclude there was sufficient foundation for the *Page 1384
admission of these exhibits. Under our Gearhart decision it is not necessary that all entries on hospital records be verified by the physicians and nurses who make them provided it is shown by the custodian of the records they are authentic and made in the usual course of business and the manner of making them. Contestants did not clearly show the manner of making these records and that the entries thereon were made at or near the time of the events recorded but we think the showing in these respects adequate.
[5] In view of the testimony, mainly of Dr. Woods, as to the permanent and progressive character of testator's mental disability the hospital records are not too remote in point of time from the execution of the will. See authorities cited at end of Division I, also annotations 124 A.L.R. 433, 437, 168 A.L.R. 969, 974.
[6] III. As part of the record of the Mount Pleasant Hospital there was received the report of the physician appointed by the Johnson County Commissioners of Insanity, dated September 20-21, 1946, containing numerous questions and answers thereto evidently obtained from unidentified persons other than testator. (See sections 229.6, 229.7, Code, 1946.) Proponents objected to the offer because it contains hearsay matters which have nothing to do with the hospital record.
This exhibit (F-1) must have been offered as evidence of earlier insanity. One of the answers, for example, is that testator had had delusions of grandeur for several years. The answers to these questions do not pertain to the treatment administered at the hospital, were mere hearsay and should not have been received. Butler v. St. Louis Life Ins. Co., 45 Iowa 93, 96. See also Foy v. Metropolitan Life Ins. Co., 220 Iowa 628, 636, 263 N.W. 14; Valenti v. Mayer, 301 Mich. 551, 4 N.W.2d 5, 7, and citations.
[7] Also among the papers received as part of the Mount Pleasant Hospital record was a questionnaire evidently answered by Mrs. Hoffelder, sister of testator, four days after his admission to the hospital. One answer on this paper states that testator's sister Frances was in a hospital for mental disease at Davenport. Apparently on the strength of this statement someone changed another paper in the record by drawing a line *Page 1385
through the answer "none" to a query "Relatives or ancestors insane" and inserted "sister, Frances, was in hospt. in Davenport." We find no other evidence of Frances' claimed insanity.
These answers of Mrs. Hoffelder should also have been excluded. See authorities last above, especially Valenti v. Mayer, and citations. It is not claimed, nor could it be, this paper was admissible as a declaration of family history. It is possible, although we do not decide the point, the answer regarding the sister Frances might have been received as an admission against interest by proponent Mrs. Hoffelder individually. No such contention is made. Nor do we decide whether insanity of Frances might be shown. See on this question 57 Am. Jur., Wills, section 105.
[8] A portion of the record of the University Hospital, upon like reasoning, should also have been excluded. It states that in 1930 Dr. Alcock wrote Dr. Ady concerning testator, "I think a good deal of his former trouble was a neurosis." This record was made in April 1941, apparently from a copy of a letter dated in 1930 found in the hospital. The letter copy would not be admissible nor is the statement in the record apparently taken therefrom competent evidence.
[9] IV. It is claimed some contestants were permitted to testify to personal transactions or communications between the witness and testator in violation of the so-called dead man statute, section 622.4, Code, 1946. Such testimony seems to have been allowed on the theory it was a statement of observations of testator's acts and conduct or of a personal transaction or communication with testator in which the witness took no part.
Contestants were not incompetent under section 622.4 to testify solely to the appearance and actions of testator ascertained merely by observation (In re Estate of Talty, 232 Iowa 280, 282,5 N.W.2d 584, 585, 144 A.L.R. 859, and citations), nor to a personal transaction or communication with testator in which the witness took no part (O'Dell v. O'Dell, 238 Iowa 434, 446,26 N.W.2d 401, 407, and citations).
[10] One contestant was permitted to testify over objection as to her competency that she was a clerk in a grocery store in 1942, testator came there at different times to buy provisions and she waited on him, he usually bought about the same items, *Page 1386
when she would give him his change he would count it over several times. We think this testimony relates to personal transactions between the witness and testator to which she was incompetent. The acts of the parties as well as their words were part of the transactions. In re Guardianship of Munsell, 239 Iowa 307, 315,31 N.W.2d 360, 364, and citations.
[11] The same witness testified she visited testator shortly after he returned from the hospital in 1941 and, when asked how he appeared as to being alert, said "he appeared to be very confused about his treatment" in the hospital. Proponents moved to strike the answer because the witness was incompetent and the answer was a conclusion. The court ruled that if from observation the answer could be arrived at it is proper, but if in the opinion of the jury such conclusion could not be arrived at then the jury does not need to give the answer any consideration and added "the objection is overruled." We think the court should have sustained the motion on the ground the answer was an unallowable conclusion and its statement to the jury should not have been made.
In several instances the court overruled objections to the competency of contestants as witnesses but stated in substance it was a question for the jury whether the witness had a conversation with deceased; if she did, the testimony should be given no consideration; if she did not, then the jury might give it such weight as they believed it entitled to. We know of no precedent for such procedure under such a record as presented here. We think the court should have ruled definitely upon the competency of the witnesses to give the testimony in question.
Contestant Mary Ipsen testified on direct examination over objection as to her competency that she overheard testator say in a communication not to her, he was afraid, was going to keep the doors locked and "they are trying to get all my money." On cross-examination, however, she said the statement was made to her. Proponents then moved to strike the testimony because the witness was incompetent. The court overruled the motion and told the jury it was for them to resolve the conflict between the direct and cross-examination and if they believed there was a personal communication between the witness and testator, the testimony should not be considered. *Page 1387
We cannot approve this ruling. We have held under analogous circumstances that where it is shown on cross-examination the witness took part in a conversation in which she had previously testified she took no part, the testimony should, on motion, be stricken. In re Estate of Newson, 206 Iowa 514, 525, 219 N.W. 305, and citations.
V. Proponents contend the nonexpert witnesses who expressed an opinion testator was of unsound mind had not detailed sufficient facts upon which to base such opinion.
[12] Before nonexperts may give their opinion of mental unsoundness they must first testify to facts reasonably tending to support the opinion. Neidermyer v. Neidermyer, 237 Iowa 685, 690, 22 N.W.2d 346, 348, and citations; In re Estate of Heller,233 Iowa 1356, 1362, 1363, 11 N.W.2d 586, 590, and citations; 32 C.J.S., Evidence, section 507d, page 174. Whether sufficient facts have been detailed is primarily a question for the court in the exercise of a sound legal discretion. In re Estate of Maier, supra, 236 Iowa 960, 966, 967, 20 N.W.2d 425, 428, and citations. We will not interfere unless it clearly appears such discretion has not been properly exercised. Campfield v. Rutt,211 Iowa 1077, 1080, 235 N.W. 59, and citations; In re Will of Diver, 214 Iowa 497, 504, 240 N.W. 622. See also 32 C.J.S., Evidence, section 507d, page 176.
[13] It does not appear there was an abuse of discretion in permitting the witnesses Margaret Angerer (except as hereinafter noted), Frank McGavish and contestant Mary Ipsen to express an opinion testator was of unsound mind. The facts detailed by them, especially by Margaret Angerer, are inconclusive and may not clearly point to mental incapacity. But they are somewhat inconsistent with mental soundness and furnish some support for the opinion given. This is enough to render the opinion admissible. Its value is measured by the strength of the facts on which it is based. See authorities heretofore cited in this division, also In re Estate of Workman, 174 Iowa 222, 231-234, 156 N.W. 438, and citations; 57 Am. Jur., Wills, section 128.
Margaret Angerer was not asked to base her opinion solely on the matters testified to by her although contestants sought to show this later by a leading question over an objection on *Page 1388
that ground. The opinion of a nonexpert as to mental incapacity must, of course, be based on matters previously testified to by him. In re Estate of Armstrong, 191 Iowa 1210, 1213, 183 N.W. 386, and citations; Neidermyer v. Neidermyer, supra, 237 Iowa 685, 690, 22 N.W.2d 346, 348.
Contestant Edward Bryan expressed an opinion testator was of unsound mind during the month of May 1942. He testified he saw testator three times when he was in the University Hospital in April 1941, and next saw him when he was a patient at Mercy Hospital. The records of Mercy Hospital offered by contestants show testator was not admitted there until June 27, 1943. This witness therefore did not observe testator between April 10, 1941 and June 27, 1943.
[14] A nonexpert witness must confine his opinion of insanity to the time of his observation of the person inquired about. In re Estate of Heller, supra, 233 Iowa 1356, 1363, 11 N.W.2d 586, 590, and citations; 20 Am. Jur., Evidence, section 853, page 716; 32 C.J.S., Evidence, section 507d, pages 174, 175. Edward Bryan was therefore not qualified to express an opinion as to testator's insanity in May 1942, and proponents' objection to the testimony should have been sustained.
VI. As stated, in answer to a hypothetical question to which proponents objected Dr. Woods expressed the opinion testator was of unsound mind on and after May 14, 1942. The question assumed the truth of the statements in the various hospital records and other matters of which contestants claimed there was evidence. Since we have held in Division III hereof certain portions of these records should have been excluded, the doctor was not entitled to express an opinion based in part upon such portions.
[15] Further, we are convinced Dr. Woods should not have been permitted to express an opinion based in substantial part upon the assumed truth of all statements in the different hospital records. Many such statements are but opinions of the doctors or nurses who made the entries. It is firmly established that an expert witness may not base an opinion in whole or in part upon opinions of others, whether lay or expert, even though such opinions appear in evidence.
If the doctors and nurses who made entries of their opinions *Page 1389
in the hospital records had testified in person to the same effect, Dr. Woods could not properly have used their opinions as a basis for his. He should not be permitted to do so merely because their opinions come from the hospital records rather than from their lips as witnesses at the trial. In support of our conclusion see Cody v. Toller Drug Co., 232 Iowa 475, 480,5 N.W.2d 824, 828; Mt. Royal Cab Co. v. Dolan, 168 Md. 633, 179 A. 54, 98 A.L.R. 1106, and annotation 1109; 32 C.J.S., Evidence, section 536, page 257; id. section 551b, page 356; 20 Am. Jur., Evidence, section 850.
The hypothetical question put to Dr. Woods also assumed that testator "refused to permit a nephew with whom he had had cordial relations to enter his house." The only basis for such claimed refusal is this testimony of contestant Edward Bryan, "One time * * * he didn't answer when I knocked * * * about 5:30 p.m. I did not see my uncle on that occasion." There is no evidence testator was at home, much less that he saw the witness or refused him entrance. There is insufficient evidential basis for this assumed fact.
Hypothetical questions to an expert upon direct examination should be based upon facts the testimony tends to establish. Manatt v. Scott, 106 Iowa 203, 213, 76 N.W. 717, 68 Am. St. Rep. 293; Adams v. Junger, 158 Iowa 449, 459, 139 N.W. 1096, and citations; Boston v. Keokuk Elec. Co., 206 Iowa 753, 761, 221 N.W. 508; 57 Am. Jur., Wills, section 127.
VII. Proponents complain that the executor as contestants' witness was permitted to testify to the value and character of testator's property at the time the will was executed. It is not claimed this was not a proper subject of inquiry but that the witness was not shown to have sufficient knowledge of such matters to testify thereto. At least some preliminary showing of the knowledge of the witness should have been made. However, it is not apparent proponents were prejudiced by such testimony.
[16] Objection is also made to the receipt in evidence upon contestants' offer of the probate inventory and preliminary inheritance tax report. It appears to be the rule that while the character and value of the estate at the time the will is executed may be shown, the size of the estate at time of death is not material to the issue. Ramseyer v. Dennis, 187 Ind. 420, 437, *Page 1390
119 N.E. 716, 719; Barricklow v. Stewart, 163 Ind. 438, 441, 72 N.E. 128, 129. However we are not persuaded this error if any was prejudicial. Ramseyer v. Dennis, supra.
[17] VIII. Nonexpert witnesses Sullivan and Hendricks expressed the opinion testator was of sound mind on May 15, 1942. Complaint is now made that upon cross-examination they were asked in effect if they had knowledge of certain matters contestants claimed were shown by the hospital records. We find no proper objection by proponents to the questions complained of, at least until after answers were given, except perhaps in one instance. One question asked Sullivan was whether he knew of one of the matters we have held in Division III hereof should have been excluded. Upon a retrial such a question would not be proper. Generally a nonexpert witness should not be asked questions on cross-examination which assume facts not in evidence. 70 C.J., Witnesses, section 846. See also Streeter v. City of Marshalltown, 123 Iowa 449, 451, 99 N.W. 114; State v. Keul,233 Iowa 852, 861, 862, 5 N.W.2d 849, 855, and citations. We do not intimate there was any lack of good faith in the cross-examination of these witnesses.
[18] IX. Proponents showed by an insurance agent that about the time the deeds and will were made the insurance covering the buildings on the farm deeded to Louis was changed accordingly. When the witness was asked at whose direction this was done, contestants' objection of hearsay was sustained. Contestants do not attempt to support the ruling, which is assigned as error, but point out there was no offer of proof and therefore no foundation for the claim of error. Proponents should have made an offer of proof. In re Estate of Heller, supra, 233 Iowa 1356, 1362, 11 N.W.2d 586, 590, and citations; Hayes v. Chicago, R.I. P. Ry. Co., 239 Iowa 149, 152, 30 N.W.2d 743, 745.
However, it is quite apparent from the record proponents were attempting to show and the witness would have answered the insurance was changed at testator's direction. And the court had ruled the witness "certainly cannot state what testator said." In view of a retrial we feel we should state our conclusion upon this assignment of error although no formal offer of proof was made. See American Express Co. v. Des Moines *Page 1391
Nat. Bk., 177 Iowa 478, 494, 152 N.W. 625, and citations; Yocum v. Husted, 185 Iowa 119, 122, 167 N.W. 663; 4 C.J.S., Appeal and Error, section 291b(1), page 581.
[19] We entertain no doubt the objection should have been overruled. Proponents were entitled to show that about the time the will was made testator was able to see to the transfer of insurance on property deeded by him to another. The applicable rule is that declarations of a testator, not remote in time, are competent on the question of testamentary capacity. Diesing v. Spencer, 221 Iowa 1143, 1147, 266 N.W. 567; Jenkins v. Robison,194 Iowa 972, 979, 188 N.W. 765; Manatt v. Scott, supra, 106 Iowa 203, 211, 212, 76 N.W. 717, 68 Am. St. Rep. 293, and citations; 57 Am. Jur., Wills, section 124; 68 C.J., Wills, section 73.
[20] X. Proponents placed in evidence three paper tablets upon which testator kept track of money spent by him from day to day. On contestants' rebuttal Dr. Woods testified over proponents' objection the witness was not qualified and "invading the province of the jury" that testator's ability to make the entries on these exhibits would have no effect upon his opinion of testator's mental capacity. We think the objection was rightly overruled. It was shown the witness had had much training and experience as a psychiatrist. The quoted portion of the objection was not good. Grismore v. Consolidated Products Co., 232 Iowa 328, 344-348, 5 N.W.2d 646, 656, 657, and citations; State v. Knox, 236 Iowa 499, 520, 18 N.W.2d 716, 726; note 28 Iowa L. Rev. 549, 551.
We have not separately discussed some of the thirty-three errors assigned and argued. They have been found without merit and sufficiently disposed of by the foregoing. — Reversed.
All JUSTICES concur. *Page 1392
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On September 1, 1927, the grand jury of Lucas County returned an indictment against the defendant-appellant. 1. INTOXICATING The particular charge against him is described LIQUORS: in that instrument as "bootlegging," committed bootlegging: on or about the 29th day of July in said year. evidence: Appellant is alleged to have thus transgressed sufficiency. by carrying *Page 625
on his person and in a motor vehicle intoxicating liquors, with the intent to dispose of the same, through gift or otherwise, in violation of law. Under that accusation, appellant was found guilty by a jury. His complaint on this appeal is confined to two propositions. They are: First, that the evidence was insufficient to support the conviction; and second, that certain testimony was inadmissible. These assignments will be considered in the order made.
I. Was the proof sufficient? Circumstantial, as well as direct, evidence is adequate to support the verdict of the jury. SeeState v. Japone, 202 Iowa 450; State v. Grba, 196 Iowa 241.
To sustain its charge, the State offered the following testimony: Bert Myers was addicted to the use of intoxicating liquors. He, with his wife, Mable Myers, operated a general store and gasoline filling station in the east part of Chariton. This filling station was about ten feet from the building. One day, before the offense charged, the appellant came to the store in his automobile, and talked with Mr. Myers. Then, in the morning of July 28th following, the appellant again drove up to the store, and asked for Mr. Myers, who had gone up town to the barber shop. Nevertheless, appellant waited approximately half an hour. Myers did not return on that occasion, and appellant drove away in his automobile in the direction of the town's business section. About 9 o'clock on the night of the the same day, appellant once more appeared in front of of the store. Mrs. Myers was then in her home. She heard the automobile, and went down to the store. Shortly, Mr. Myers came to the store in a taxicab, while appellant was still waiting. Mr. Myers then went up to appellant's car, and the latter asked the former who was in the store. When informed that no one was there but the boy, appellant then handed Myers something wrapped up in a paper, which had the size, shape, and general appearance of a bottle. Thereupon, Myers paid appellant some money.
Those facts are all testified to by Mrs. Myers, who, at the time, was hidden but a few feet away, in the shadow of the building. Immediately, appellant drove away, and Myers went into the store, followed by Mrs. Myers. However, she did not see him unwrap the package. Yet, shortly thereafter, Myers came into the family living quarters, and immediately Mrs. *Page 626
Myers found a bottle of alcohol in back of the range stove. Such bottle was taken into her possession, marked, and delivered to the sheriff. Upon analysis, it was found that the contents of the receptacle were intoxicating liquor.
John Myers, a son of the husband and wife before mentioned, corroborates his mother in many of her statements. During the day aforesaid, this boy saw appellant at the store, and heard the inquiries for Mr. Myers. Also, this witness saw his father and appellant conversing for about five minutes. While uptown, in the morning, John saw his father in the presence of appellant, and watched them go into a garage together. After arriving home, the father and son went after eggs, and the elder Myers took a bottle from his pocket and drank therefrom. Continuing, the witness said: "This was the morning before he [appellant] was there in the evening." None of these facts were controverted by appellant, nor did he offer any evidence in his own behalf.
Manifestly, there was presented in those facts and circumstances sufficient evidence to sustain the conclusion of the jury, and the trial court correctly overruled appellant's motion for a directed verdict and application for a new trial.
II. Error is assigned by appellant because the trial court permitted Mrs. Myers to testify that appellant, out at the car that night, passed a bottle to her husband. A belated exception was taken to the admission of this statement 2. TRIAL: into the record. Reasons asserted for the reception inadmissibility were that she could not see the of evidence: object designated as a bottle, due to the fact waiver. that it was wrapped in paper, and hence the interrogatory called for an opinion and conclusion. Taken alone, the complaint would be well founded, but under the record, it is without merit, because Mrs. Myers had previously testified that the package or object delivered by appellant to her husband was, in fact, a bottle. She did this without appellant's objection. Therefore, the question to which the objection was interposed amounted to no more, under the circumstances, than an inquiry as to whether or not the parcel previously identified (without objection) as a bottle was given Mr. Myers by appellant.
III. Further protest is asserted by appellant because the court allowed Mrs. Myers to answer another question alleged to *Page 627
be objectionable. The effect of this inquiry was to ask the 3. EVIDENCE: witness to compare the size, shape, and competency: appearance of the object presented Mr. Myers by permissible appellant with the bottle containing comparison. intoxicating liquor, found behind the stove.
That was not improper. In referring to said "object," the State called it a bottle. But the witness had so designated and identified it in her previous answers. Thus the question under consideration did no more than refer to the already established identity of the article. So it appears the alleged grievance is not well founded.
IV. Moreover, the objections, in both instances reviewed, came too late. They were interposed after the witness had made full response. Consequently, when it was time for Mrs. Myers to answer the inquiries, there was nothing upon which the 4. CRIMINAL court could rule. Her replies were properly LAW: trial: made, in the due course of procedure. As a exceptions: result, there were no objections to the gambling on questions when the responses were made thereto testimony. by the testifier. Apparently appellant elected to speculate on whether or not the witness's replies would be favorable or unfavorable. Under this record, he is bound by the result. State v. Gibson, 189 Iowa 1212; State v. Christ, 189 Iowa 474. See, also, State v. Ostby, 203 Iowa 333.
Wherefore, the judgment and decree of the district court is affirmed. — Affirmed.
ALBERT, C.J., and EVANS, FAVILLE, and WAGNER, JJ., concur.
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The action is founded upon a certificate of deposit issued by the defendant-bank to the minor, William Stephenson, on November 23, 1926. On December 1, 1926, said bank closed, but shortly thereafter, in February, 1927, it was reopened for business, having been reorganized under what may be properly termed the "Waiver Plan." The so-called waiver provides that the stockholders of the bank have voluntarily surrendered their old capital stock and earned surplus and have raised $60,000.00 in lieu of their statutory liability; that it is proposed that the bank shall be reorganized with a capital stock of $100,000.00 and a contributed surplus of $10,000.00; that the said reorganized bank shall take over certain of the cash, assets, and securities at their book value plus accrued interest thereon in an amount sufficient to offset 50 per cent of the ordinary deposit liabilities of the bank, "it being understood, that liability for public deposits, deposits of charitable and religious institutions, rediscounts and bills payable, together with any ordinary deposit not signing this waiver, will be paid in full by the reorganized bank"; that in consideration of other depositors signing like waivers in amounts aggregating 90 per cent of all ordinary deposits, and for the mutual purpose of enabling the bank to resume business, and to best secure and pay all depositors, "it is understood and agreed between the undersigned depositors, creditors and claimants of the First National Bank of Webster City, as follows, to wit:
"1. That as such depositor I do by this instrument, surrender, assign and set over to the First National Bank of Webster City, Iowa, when reorganized, all my right, title and interest in and to fifty per cent of the certain checking deposits, savings deposits, time certificates of deposit, demand certificates of deposit, cashier's checks or drafts (all or any one or more shall be *Page 200
hereinafter called deposits) with interest as provided by the terms of such deposits to the date of the closing of the First National Bank of Webster City, to wit: The first day of December, 1926.
"2. That in consideration therefor I am to receive and do by these presents agree to accept from the reorganized First National Bank of Webster City, Iowa, certificates of deposits in the aggregate amount of fifty per cent of my total deposits, with interest, if any in the First National Bank of Webster City, Iowa, said certificates to be in an amount as follows: 10 per cent to be payable March 1, 1927; 10 per cent to be payable September 15, 1927; 15 per cent to be payable March 1, 1928; 15 per cent to be payable September 15, 1928; with interest thereon at four per cent from the date of the reopening of said bank until such deposits become due and payable.
"3. That in lieu of the remaining fifty per cent of my deposit claim I agree to and do hereby purchase a participating interest in the non-acceptable assets and doubtful bills receivable of the First National Bank of Webster City, Iowa, remaining after the selection by the reorganized First National Bank of Webster City, Iowa, of certain assets (including cash and securities), for acceptance of the reorganized bank, has been made. Said non-acceptable and doubtful assets to be delivered by the First National Bank to three trustees to be liquidated by them for the benefit of the depositors, claimants and stockholders * * *.
"4. Under the above conditions I agree to accept a trustees' certificate to be executed by three trustees, one of which is to be named by the stockholders; one to be named by the depositors signing waivers, and one to be named by the management of the reorganized First National Bank of Webster City, Iowa, the purpose being that each depositor and claimant shall receive the full face amount of his claim against the First National Bank of Webster City, Iowa, in the form of certificates of deposit issued by the reorganized bank and by trustees' certificates as above described. To indemnify the depositors signing waivers it is understood that all of the assets of the First National Bank not accepted by the reorganized bank shall be set aside and placed in the hands of the three trustees to be nominated as before mentioned. Said trustees are hereby empowered *Page 201
to do every act necessary and advantageous to effecting liquidation of assets in their charge, including the power to compromise and incur expense. * * *
"5. This waiver and contract is not to be binding upon me until the First National Bank of Webster City, Iowa, shall have been recapitalized in the manner above mentioned, and the acceptance by said reorganized bank of the terms and conditions of this contract.
"6. I hereby direct said bank, as and when reorganized, to return to the holder from whom received all checks drawn on my account and dated prior to the time of completion of the reorganization of said bank."
Certificates of deposit for 50 per cent of the amount of the original certificate were signed by the bank and a trustees' certificate was signed for the remaining 50 per cent thereof, but were never delivered to the minor, nor anyone acting in his behalf. On January 23, 1929, the plaintiff was appointed guardian of the minor, William Stephenson, and duly qualified as such. Prior to this time, the minor had no guardian. The guardian made demand upon the bank for the amount due upon the original certificate of deposit, according to its terms, payment was refused, and this action was begun.
The bank in its answer, admits that there is due the said minor the sum of $400.00. It pleads that any action instituted should be by the minor, and not by a guardian. It further pleads the closing of the bank, the reorganization of the same under the "waiver plan," and that the minor executed the waiver as aforesaid, and makes a copy of said purported waiver a part of the answer.
[1] There is no merit in the contention of the defendant-bank that the action should have been instituted by the minor instead of the guardian, as it is the duty of the guardian of property of minors to prosecute and defend for their wards. See Sections 12581 and 12582, Code, 1927.
The appellant, relying upon Sections 9193 and 9288, Code, 1927, makes the contention that the so-called waiver, which was introduced in evidence, upon which appears the name of the minor, is binding upon him, and that for said reason, there can be no recovery by the plaintiff-guardian for more than $400.00, *Page 202
50 per cent of the amount of the original deposit. It is the appellant's contention, that, under Section 9193, Code, 1927, the deposit having been made in the name of the minor, a receipt or acquittance of the minor therefore shall be valid and binding upon him, and that, although this section appears in the chapter of the Code referring to savings banks, it is made applicable to National banks by reason of the provisions of Section 9288, Code, 1927. It will be noted that the aforesaid writing is in the nature of a contract; but for reasons hereinafter stated, we find it unnecessary to determine the merits of appellant's contention relative to the waiver claimed by appellant to constitute a release or discharge of one half of the amount.
[2] As hereinbefore stated, the waiver purported to contain the name of the minor, and a copy of the same is attached to and made a part of the answer. The plaintiff filed no reply to said answer. No reply was necessary, as the averments of the answer are deemed denied by operation of law. See Sections 11156, 11157, and 11201, Code, 1927. The appellant relies at this point upon Sections 11218 and 11219, Code, 1927, which provide:
"Section 11218: When a written instrument is referred to in a pleading, and the same or a copy thereof is incorporated in or attached to such pleading, the signature thereto, and to any indorsement thereon, shall be deemed genuine and admitted, unless the person whose signature the same purports to be shall, in a pleading or writing filed within the time allowed for pleading, deny under oath the genuineness of such signature."
"Section 11219: If such instrument is not negotiable, and purports to be executed by a person not a party to the proceeding, the signature thereto shall not be deemed genuine or admitted, if a party to the proceeding, in the manner and within the time before mentioned, states under oath that he has no knowledge or information sufficient to enable him to form a belief as to the genuineness of such signature."
[3] The proposition of the appellant at this point is that, since there is no reply containing a denial, under oath, of the signature of the minor purporting to be attached to the waiver, the signature thereto must be deemed genuine. Verification of pleadings by a guardian is not required. See Section 11166, *Page 203
Code, 1927. In Farmers Traders State Bank of Bonaparte v. First National Bank of Farmington, 201 Iowa 73, we held that a pleading by the guardian, alleging under oath that he has no knowledge or information sufficient to form a belief as to the genuineness of the signature of his ward, and therefore denying that the signature of the ward is true and genuine, is sufficient to place the burden of proof upon the other party. The appellant cites no cases, and in our investigation we have found none, wherein we have held that a denial by the guardian under oath of the genuineness of the signature of his ward is required to place the burden of proof as to the genuineness of the signature upon the opposing party. In claims against the executors of estates, we have held that the statutory denial alone is sufficient to place the burden of proof upon the party relying upon the genuineness of the signature. See In re Estate of Johnson, 210 Iowa 891; In re Work's Estate, 212 Iowa 31; Smith v. King, 88 Iowa 105; In re Estate of Chismore, 166 Iowa 217. Whether the same rule should be held to apply to an action wherein a guardian is a party, as we have held does apply in an action against the executor or administrator of an estate, we find it unnecessary to determine in this case; for assuming, without deciding, that a verified pleading by the guardian is necessary to place the burden of proof as to the genuineness of the ward's signature upon the appellant, it must fail in this action. Even in that event, the plaintiff-guardian, under the statutory denial, may assume the burden of proof as to said issue. See Ainsworth Savings Bank v. Colthurst, 197 Iowa 363, and cases therein cited. In the cited case we said:
"But this statute has been in effect for more than 50 years, and has been repeatedly construed in this regard. The substance of that construction is that, if the purported maker of the instrument fail to conform to the provision of this section, then he relieves the plaintiff (defendant) of the burden of proof on that question. He may, nevertheless, by an unverified general denial or by a statutory denial put the question of genuineness in issue, with this qualification: that the burden of such issue will be upon the defendant (plaintiff) and not upon the plaintiff (defendant)."
The appellant states its proposition in argument as follows: *Page 204
"So far as the record in this case is concerned, this waiver must be deemed to be genuine and it must be admitted because there was no denial of the same under oath."
It is clearly apparent, from the foregoing authorities, that the appellant is wrong in its contention.
In the case at bar, the evidence is uncontradicted, and conclusively establishes that the purported signature attached to the waiver is not that of the minor, and the bank officers had full knowledge of said fact. No other conclusion could be drawn from the evidence. Under such circumstances, it was the duty of the court to sustain appellee's motion for a directed verdict. See In re Work's Estate, 212 Iowa 31.
For the foregoing reasons, the judgment of the trial court is hereby affirmed. — Affirmed.
FAVILLE, C.J., and STEVENS, De GRAFF, and ALBERT, JJ., concur.
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I. This is an action to recover damages for the forcible defilement of Katie Wildeboer, appellee, who, at the time of the alleged assault, on the evening of September 27, 1912, was unmarried, and about 28 years of age. Appellant 1. WITNESSES: was about 41. The assault is alleged to have credibility: been committed in a shed near the residence in jury which she lived with her parents, on a farm question on owned by appellant. Three trials in the court discredited below have resulted in substantial verdicts in testimony. her favor. The two prior verdicts were set aside by this court, and new trials awarded. See Wildeboer v. Peterson,182 Iowa 1185, and Wildeboer v. Peterson, 187 Iowa 1169.
Much stress is laid by counsel for appellant upon the proposition that the verdict is not supported by the credible testimony introduced upon the trial. It is not argued that the direct testimony upon the last trial did not make out a prima-facie case for appellee, but it is contended that appellee is so thoroughly discredited and impeached as that her testimony should have been disregarded by the jury. There are many particulars in which it appears that appellee changed and added materially to her testimony upon the two previous trials. She was a witness before the grand jury of Butler County in 1913, when an effort was made to secure an indictment against appellant *Page 1204
for the crime of rape. No indictment was returned by the grand jury, the members of which were witnesses in behalf of appellant. It appears from the testimony of these witnesses that appellee did not then testify that appellant threatened to choke or to kill her if she did not keep still; that she made an outcry; or that she resisted the assault by fighting appellant. It also appears that she did not so testify upon the former trials of this case. Her testimony is in conflict as to the exact hour and date when the assault was committed, and as to the condition of her clothing. Appellant denied the charges in toto; and her testimony is corroborated only by that of her mother, to whom she claims to have made immediate complaint, and to whom she exposed her person, which, the mother testified, showed evidence of recent sexual intercourse and of violence. The only evidence of violence, aside from the testimony of appellee, was that of her mother, that there were marks or red places on her limbs just above the knee.
Evidence was introduced of subsequent and continued friendly relations between appellee, appellant, and the members of her family. No action was taken against appellant until on or about the 17th day of June, 1913, when Philip Wildeboer, her stepfather, filed an information before the justice of the peace, charging appellant with the crime of seduction. This information was dismissed; and on June 26th, another information, subscribed and sworn to by Philip, charging him with rape, was filed.
Appellee gave birth to a child, which died a few minutes after it was born, on June 30, 1913. Although she was never married, she had a son of school age at the time it was alleged the assault occurred. Testimony was also introduced to the effect that Philip Wildeboer, on different occasions after the assault was committed, spoke kindly of appellant in the presence of appellee. It is also shown that there was a quarrel between them in May, 1913, over some oats; and this is blamed for the charges against appellant. The contradictions in appellee's testimony were all brought out before the jury, which evidently, nevertheless, believed the substance of her story. There was testimony from which the jury could find, if appellee was believed, not only that sexual intercourse was had between *Page 1205
them, but that it was accomplished without appellee's consent. Her testimony is, of course, seriously discredited by her failure to testify fully on the previous trials to what occurred, if she told the truth upon the last trial; but the credibility of her testimony was for the jury, and it is not so wholly unworthy of belief as to justify this court in holding, as a matter of law, that she should not be believed. Appellee is illiterate and ignorant. She was born in Germany, and speaks English with some difficulty; while her mother is unable to speak or understand the English language, and testified through an interpreter.
The court did not err in refusing to direct the jury to return a verdict in appellant's favor, as requested at the conclusion of all of the testimony.
II. The court permitted leading questions propounded to appellee and her mother to be answered, over the repeated objections of appellant. Leading questions should not have been permitted in the examination of these witnesses. 2. WITNESSES: The court, however, carefully guarded the examination: examination, and it is clear to us that no leading substantial prejudice resulted from the rulings questions complained of. Appellee was somewhat reluctant condemned. to answer, and, unless interrogated closely, went little into detail. Leading questions should, however, be avoided, in the event of a retrial of the case.
III. Appellant testified that a controversy over some oats occurred on May 29, 1913, between himself and Philip Wildeboer, in the living room of the house in which the family resided. The court refused to permit appellant to testify 3. EVIDENCE: that Philip, upon that occasion, threatened to relevancy, get even with him. Philip was not a witness upon materiality, the trial, and the credibility of his testimony and was not involved. Just when Philip learned of competency: the alleged assault upon appellee is not conduct of disclosed; but his wife testified that she did third party not tell him about it for several months. It is as bearing claimed that the controversy above referred to on motive. was in the presence of appellee, and that she told her stepfather to be still. While this conversation did not pertain to the subject-matter of this action, it cannot be wholly separated from the admitted fact that no information was filed against appellant until very shortly before appellee was confined. *Page 1206
The inference to be drawn from this incident, it is true, is more or less remote; but we think that, as a circumstance occurring in the presence of appellee, it bore to some extent upon the motive of Philip in causing the information to be filed. That is to say, there is a more or less direct relationship between this incident and the institution of the criminal prosecution.
IV. It was developed in the evidence that appellee, at the time of the alleged assault, had a half sister, Minnie, unmarried, who also resided at home. Minnie gave birth to a child, July 7, 1913, about one week after appellee was confined. She 4. EVIDENCE: later married a man by the name of Fritz relevancy, Hinders. It was claimed by appellant that materiality, appellee and her sister Minnie went buggy-riding and on the evening of September 29, 1912, with competency: Fritz, and that they did not return until a late matters of hour. Fritz resided with his brother Orin, near speculation. the Wildeboer home. They were both unmarried, and "bached." As we understand the contention of appellant, it is that the two sisters may have gone to the home of the Hinders brothers, or otherwise encountered Orin, and have become pregnant. There was testimony that Philip Wildeboer, upon one occasion, said to a neighbor that Orin Hinders was the cause of appellee's condition. The testimony was wholly speculative, and without the slightest probative value as to any issue involved in this case.
V. A witness who testified that he had a conversation, at the home of appellee, with her stepfather, in the presence of herself and her mother, was asked to detail what was said. The witness was not permitted to do so. It was claimed that 5. EVIDENCE: this witness would testify that Philip, on that relevancy, occasion, said that Orin Hinders was the cause materiality, of Katie's condition; also, that, during the and conversation which occurred in the spring of competency: 1913, Philip, referring to appellant, spoke of conversa- him as a good man. The ground, as we understand tions in the the record, upon which the court excluded this presence of testimony was that it was not clear that the prosecutrix. conversation occurred in appellee's presence. The record is not quite clear on this point, but we think it sufficient to justify the admission of this testimony in evidence. *Page 1207
VI. Two physicians who claimed to have treated appellee for neurasthenia in the spring and summer of 1915 and the fall of 1917, respectively, were permitted, over the objections of appellant, to fully describe her condition, and 6. EVIDENCE: to detail the history of the case, as revealed opinion to them by appellee. evidence: absence of It appears from the testimony of these showing of witnesses that she was troubled with physical cause and weakness, nervousness, loss of sleep, mental effect. apathy, and other symptoms indicating the disease stated. One of the grounds of objection to the testimony of these medical witnesses was that there was nothing to show that her condition, at the time she was, examined and treated by them, was attributable to the assault which she claims was made upon her. The witnesses agreed that bad news, worry, misfortune, or anything of that kind, are efficient causes of neurasthenia. One of the physicians testified that she told him that her difficulty began in 1915, following a severe shock which she received upon a previous trial of this case. He also testified that he could form no idea as to when her condition arose, but that he based his conclusion upon the statements made by her. The other witness testified that it might have been of several years' standing. The only testimony of other witnesses who knew her after the assault, as to her physical and mental condition, was that of her mother, who testified that she was, to some extent, unable to sleep, and that, prior to her confinement, her feet and limbs became swollen. There was also testimony that she had, for a long time following the alleged assault, complained of pain or soreness in her back. Appellant, if liable at all, is liable only for such damages, mental and physical, as were the reasonable and probable result of the assault with the commission of which he is charged. The court instructed the jury quite fully as to the measure of damages and the elements entering therein. The substance of the instruction was that the amount to be allowed was such sum as would fairly and reasonably compensate appellee for the damages sustained; and that, in estimating such damages, the jury should take into consideration the expense made necessary on account thereof, the physical pain and suffering endured, the injury to her person, health, and reputation, and also mental *Page 1208
anguish and humiliation suffered by her. As bearing upon this question and the law of indecent assaults, attention is called toWright v. Starr, 42 Nev. 441 (6 A.L.R. 981, and note); Bye v.Isaacson, 42 N.D. 417 (6 A.L.R. 1067, and note). Surely, it cannot be that appellee's physical and mental condition, caused by a shock, however severe, more than two years after the wrong was committed, received by her while in attendance upon the trial of her case, is a proper element of damages, unless the shock is in some way attributable to the original injury. There is nothing in the record to indicate what produced the shock during the trial, nor to connect it with the alleged assault. This testimony, going directly to the question of damages, was necessarily prejudicial to appellant, and may have materially enhanced the damages.
It is indeed regrettable that this case must again be reversed; and this is said without any criticism of the trial court. The record shows that the case was carefully tried. We are persuaded, however, that this testimony was inadmissible and highly prejudicial. For the error here pointed out, the judgment of the court below is — Reversed.
FAVILLE, C.J., and VERMILION, J., concur.
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This is an original proceeding in certiorari to test the validity of the ruling of the Municipal Court of Des Moines, Polk County, Iowa, Don G. Allen, Judge.
In August of 1933 Dr. R.A. Weston commenced an action in the Municipal Court of Des Moines, against J.M. Henry, in which he claimed he had rendered certain medical services for the daughter of Mr. Henry; that there was a balance due of $200, plus interest and costs.
The cause of action was not prosecuted by the plaintiff, and finally on the first day of March, 1935, it was dismissed by the court for want of attention. On October 10, 1935, Dr. Weston commenced a new cause of action covering the same identical claim, against the same defendant. Mr. Henry filed answer. The case was permitted to drag on for some time, during which period of time there was talk between counsel in regard to an adjustment of the matter. On the 17th of February, 1937, the Municipal Court entered an order, published in the Daily Record, directing the parties in certain enumerated cases, including the case of Weston v. Henry, to appear by a certain date and try their causes of action or same would be dismissed. On February 24, 1937, Dr. Weston appeared thru his counsel, and judgment was entered in his favor on the same date. On February 26, 1937, *Page 837
two days after the entry of the judgment, defendant filed a motion to set aside the default and judgment, to which was filed a resistance. This motion was argued and submitted to the court. No ruling was entered on it until the 25th day of March, 1938, when it was overruled. On April 13, 1938, the defendant filed a motion to reconsider the ruling on the motion to set aside default and judgment, which was resisted and argued, and thereafter, on May 4, 1938, the court, Don G. Allen, Judge, entered an order, sustaining the said motion to reconsider and to set aside the default and judgment.
[1] Petitioner claims that the judge of the municipal court exceeded his jurisdiction in sustaining the motion to reconsider, due to the fact that same was not filed until April 13, 1938, more than ten days after the order was entered, overruling said motion.
Respondent filed a motion to dismiss the proceedings, alleging that under section 10681 of the 1935 Code the municipal court had jurisdiction to set aside a default judgment which was challenged for irregularity in obtaining the same, within ninety days after entry thereof, and that, since the court had jurisdiction, certiorari would not lie and the petitioner should have appealed to test the error, if there was any.
The problem which confronts us here is the construction of section 10681 of the 1935 Code. It is a nice question and one not without difficulty. The section referred to is as follows:
"10681. Entry judgment — jurisdiction — setting aside default. Judgments shall be rendered and entered upon the record in all cases within ten days after final submission of the cause, unless for good cause the court extends the time. The court shall retain jurisdiction, for the purpose of correction of errors of the court or in the record, for ten days after the entry of final judgment. Motions to set aside defaults may be made within ten days after the entry thereof. Motions to vacate a judgment or order, because of irregularity in obtaining it, must be made within ninety days from the entry thereof."
It is the contention of the petitioner that the motion to set aside the default must be made in a municipal court within ten days after it is entered, whereas the respondent contends that under the statute he is entitled to ninety days where the judgment was entered due to irregularity in obtaining it. *Page 838
The motion upon which the trial court ruled in this case, and from which the writ of certiorari was taken, was filed within nineteen days after the entry of the trial court's order refusing to set aside the default. It alleges irregularity in obtaining the judgment. It is not necessary for us to go into the question of the irregularity. Suffice it to say that it is properly pleaded. Statute 10681 of the 1935 Code specifically states:
"Motions to vacate a judgment or order because of irregularity in obtaining it, must be made within ninety days from the entry thereof."
[2] This record shows the motion to vacate was filed within nineteen days; that it alleged there was irregularity in obtaining the judgment, and the lower court so found. Necessarily it follows that the motion was filed within the time provided by statute. Hence the Municipal Court had jurisdiction to enter the order. The fact that the court might have made an erroneous ruling would not sustain the writ, for in that case petitioner should have proceeded by appeal and not by certiorari.
In the very recent case of Kommelter v. District Court,225 Iowa 273, 280 N.W. 511, this court, speaking thru Justice Anderson, at page 275 of 225 Iowa, page 512 of 280. N.W., said:
"The statute, section 12456, providing for the writ, provides that the writ may be granted `in all cases where an inferior tribunal * * * is alleged to have exceeded (its) proper jurisdiction, or is otherwise acting illegally, and there is noother plain, speedy, and adequate remedy.' [Italics supplied.]
"In Morrison v. Patterson, 221 Iowa 883, 267 N.W. 704, we said, speaking through Justice Kintzinger [page 886]:
"`Under this statute [section 12456], two matters must be shown before a writ can issue: (1) That the lower court has exceeded its proper jurisdiction or is otherwise acting illegally; and (2) that there is no other plain, speedy, and adequate remedy. Both must be established to justify the writ.'
"We further held in that case, that where the court has jurisdiction of the subject matter the remedy for an alleged erroneous ruling is by appeal, and we used the following language:
"`We have repeatedly held that where there is another plain, speedy, and adequate remedy, no writ shall issue.' *Page 839
"McCarthy Co. v. District Court, 201 Iowa 912, 208 N.W. 505; Hoskins v. Carter, 212 Iowa 265, 232 N.W. 411; Collins v. Cooper,215 Iowa 99, 244 N.W. 858; Adams v. Smith, 216 Iowa 1365,250 N.W. 466; Main v. Ring, 219 Iowa 1270, 260 N.W. 859. We have also repeatedly held that this court will not review the erroneous ruling of an inferior tribunal on certiorari. Holcomb v. Franklin, 212 Iowa 1159, 235 N.W. 474; McEvoy v. Cooper, 208 Iowa 649,226 N.W. 13; Main v. Ring, supra.
"We further held in the Morrison v. Patterson case, supra:
"`If the court had jurisdiction, it had the right to rule one way or another. In such event, although the rulings may have been erroneous, they cannot be made the subject of review in certiorari. The writ of certiorari performs none of the functions of the writ of mandamus, and cannot be used for an appeal.'"
We are thus constrained to hold in this case, in view of our former decisions, that a writ of certiorari should not have issued, and that if the lower court erred in setting aside the default the proper remedy would have been appeal. — Writ annulled.
SAGER, C.J., and all JUSTICES, concur.
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The injury and negligence complained of occurred on a highway paving project in the city of Fort Dodge. The Sani Construction Co. was engaged in building a concrete paved highway, somewhat over 300 feet long, connecting 8th street and primary Highway No. 20, and being the hypotenuse of an approximate right angled triangle formed by the three highways. At this place, Highway 20 extends approximately east and west, 8th street, north and south, and the street, under construction, extended from northeast to southwest.
The following outline, though not drawn to a scale, and not an exhibit in the case, fairly sketches the situation, as we read the record: *Page 568
[EDITORS' NOTE: SKETCH IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 569
[1] I. The plaintiff was injured, while at work preparing the roadbed for the concrete, when the defendant, in backing his truck to the paving machine, struck and injured him. Plaintiff alleged a number of grounds of negligence, of which the following were submitted to the jury, to wit:
1. That defendant at said time and place backed his truck up on the right-hand side of the road or highway where men were working at a place where it would prove dangerous to working men whereas the usual and ordinary place of backing said truck was at the left-hand side of said road where no men were working.
2. That defendant at said time and place backed his truck over and upon the plaintiff without sounding any horn, whistle or bell announcing the approach of said truck to this plaintiff or others working in said place.
3. That defendant at said time and place was backing his truck without looking or observing the presence of this plaintiff or other persons in the path in which he was going.
The construction of the paving was proceeding northeasterly from Highway 20 to 8th street. The concrete slab was twenty feet wide. The concrete mixer was of the Koehring make. A caterpillar tractor carrying the mixer. On the receiving end of the machine was a scoop on which the trucks carrying the dry mix backed and dumped their loads. The scoop was then elevated dumping the batch into the mixer, from which the wet mix passed into a bucket on a traveling arm, at the rear, and was poured to form the green slab.
The plaintiff, a young man twenty-one years old, was a WPA laborer working with a gang of men engaged in placing the steel side forms for the slab, and in preparing the dirt roadbed ahead of the mixer. The latter work consisted in cutting down the elevations and bumps, and filling the depressions, so as to bring the roadbed to the proper grade, and smooth its surface. The roadbed had a six per cent grade toward Highway 20. A tractor grader was used to cut down the elevations and at the same time fill the depressions. And a caterpillar tractor with a scoop or scraper, described as a tumbling bug, was used to transport dirt from the borrow pit, and dump it in piles on the roadbed where it was necessary to raise the grade. In addition to the two men who operated the grader and the tumbling *Page 570
bug, there were four or five men engaging in placing the forms at the sides, and in leveling the dirt. This gang went to work at 5 o'clock in the morning so as to have sufficient roadbed prepared for the mixing crew, and the truckers, who started their operations about 10 o'clock in the forenoon. It was the practice of the grading gang to have one half of the roadbed prepared a considerable distance farther in advance of the other half, so that the truckers, who hauled the dry mix of cement, sand and gravel, or stone, would have a smoother road, and one less impeded by the grading gang, in getting to the mixing machine. On Thursday, May 26, 1938, the grading gang had placed the steel side forms for the west side of the slab, and filled and tamped the dirt about them, and filled and graded the west side of the roadbed, almost to the opening into the west side of 8th street. It was also the practice of the road gang to keep the entire width of the roadbed prepared and ready for the pouring of concrete thereon, for a distance of at least 25 feet ahead of the mixer. This was the condition on Thursday. The steel side forms had not all been placed for the east side of the slab. They had been laid only about 20 feet from the mixer. At about 3:30 o'clock in the afternoon, the plaintiff was engaged in grading the surface of the ground, for the width of about a foot, on the east line, where the form was to be placed, so as to leave a distance of 8 inches between the surface of the ground and a cord which was stretched at the elevation of the top of the form. The tumble bug had dumped several piles of dirt on the east half of the roadway. The plaintiff was working along the east side, about 30 or 40 feet from where the trucks backed off of 8th street on to the dirt surface of the new roadway. He was shoveling the freshly dumped dirt over onto the ground under the cord. He was standing, stooped over, about a foot inside of where the form was to be placed, using a short shovel, facing south, when the defendant, an independent trucker, backing his Chevrolet truck, loaded with 5400 pounds of the dry concrete mix, struck him and knocked him down, and ran over the length of his left leg, and his pelvis, with the right rear dual tire of the truck.
The truckers, who were eight or nine in number, hauled the dry concrete ingredients, from the loading set up, about a *Page 571
mile away. They came north on 8th street, through the pass under Highway 20, to the opening of the new street and then backed their trucks, southwesterly to the paving machine. There is little dispute as to the location of the plaintiff when he was struck. No one saw the contact except Hood, the foreman of the leveling gang, who was standing about 20 feet south of plaintiff in the center of the roadway. He testified that plaintiff was about 30 or 40 feet from 8th street, and lay about 5 feet west of the east line, after he was struck. Robert Jones, a co-laborer of plaintiff, who was also shoveling dirt about 20 feet south of plaintiff, and who did not see the blow, and did not see nor hear the approach of the truck, said that just before he was struck, plaintiff was standing a foot or two west of the east line, about 30 or 40 feet from 8th street. No other witness testified on this point. The defendant admitted that he was backing the truck on the east side of the roadway, but said he did so to avoid the grader and other vehicles.
The defendant testified:
"Well when I come up 8th street, and when I got up 8th street there was a gap to come in where they was working, and I pulled in towards the north and then headed back with the truck towards the mixer, and on the west side there was a grader setting there, they call it a blade, I had to back over to the east side to get around here. A little bit further up here towards the mixer sat a service truck with a big wide flat box on it they hauled with, and that you had to watch, and there were two or three trucks up by the mixer, and that afternoon sometimes there was a tumbling bug in there, and at times we would have to stop and sit there in the road. I had to go over to the west side after I got around this machine [the grader], and when I went back ten or fifteen feet further, I had been standing on the running board so I could see."
There is little, if any, corroboration for this testimony, respecting conditions at the time of the injury. No trucker testified that he was on this roadway at the time of the collision. Three of them testified for the defendant. The trucker, Glenn, testified:
"I don't think this mortar blade or scraper was being used that afternoon. Everytime the mixer was moved, it was moved *Page 572
too. I think it was standing that afternoon between the forms. I couldn't say where it was standing. It was standing between the mixer and 8th street. I couldn't say whether it was halfway between the mixer and 8th street or nearer 8th street or the mixer."
Defendant's testimony that he went on the east side to avoid the grader was much weakened on cross-examination, which shows that he never saw the grader until after he had run over plaintiff. This was his testimony:
"Q. How many things did you see as you backed up there? A. Why there was a grader that I backed around in the first place.
"Q. Where did you back around that? A. Just before I hit Rebmann. I take that back, just before I see Rebmann.
"Q. Well did you see Rebmann before you hit him? A. No, sir.
"Q. Well then when did you see the grader? A. I seen the graderjust before they hollered for me to stop."
And it appears that "they hollered" two times before he stopped, for he further testified:
"And the first thing I knew somebody hollered, and theyhollered again and I stopped to see what was wrong. I did not get out of my cab then. I opened the right hand side door and looked out and found a man lying right along side the running board."
With respect to the use of the road between the mixer and 8th street at the time plaintiff was struck, his foreman, Hood, testified:
"All the time they were hauling cement and mixing batch, they are preparing the grade, the dirt there for the approach of the mixer, and there were men working all up and down the job there, all the way from where the forms first started clear up to the mixer. Right at that time I don't know whether there was other trucks in there or not. I know the tumbling bug was not there at that particular time because it was out in the borrow pit, and was not there at the time he was hurt. The scraper wouldn't be there if the tumbling bug wasn't, it had *Page 573
just gone out, it had just dumped the dirt they were leveling there, some fresh dirt, and it was that fresh dirt that Rebmann was spreading out. And that was on the east side, and there was somewheres about four or five men working at leveling there, I don't know just how many there was that day. I don't think they were all working on the dirt. Some were working on forms. I don't believe there was over two of them in the one pile of dirt, just Rebmann and another boy, I think. I think the east side was lower than the west side in that particular spot, and I think we had dumped a lot of fresh dirt from where the mixer was all the way down. The trucks could have backed up over the dirt, but we didn't like to have them do it. If they could get around the piles of loose dirt, they were really supposed to go around."
Robert Jones, for plaintiff, testified:
"We did not work on the west side that afternoon because the truck was there."
Respecting the location of the grader, at the time plaintiff was hit, which was opposed to what defendant said, he testified:
"I said there was a blade [grader] on the other side of the road. It was up north of us there where we just took out the old pavement the day before. It was on the north side, north of where that approach on 8th street, where the old pavement was, we didn't have it graded yet, we had to have some high bumps taken off. * * * It wasn't where the trucks came. It was on west and north side. The grader was on the west and north side. The grader was on the west side of the road, and it was away north of us.The grader was way north of where the trucks got into the road."
With respect to the side of the road on which the defendant and the other truckers had backed their loaded trucks to the mixer on Thursday, Jones testified:
"The dirt was on the east side of the road that afternoon. The tumbling bug dumped it in the morning, it was just in piles, and that continued up until about twenty five feet from the front of the mixer. Defendant backed up the east side where we were. * * * Previously that day, the trucks before *Page 574 the one that Heesch was driving came, had gone on the oppositeside of the road from where we were, the west side.
"Q. Where had all the trucks gone before the Heesch truck came?
A. The same side, the west side."
On this issue, Hood testified:
"I think on this particular day, we were building up on the east side. We generally take one side there and bring it down probably fifty feet and go over to the west side.
"Q. But had the trucks backed up on the west side? A. They hadbeen. * * * I imagine there would be some dirt thrown out in the center, but I know we dumped the dirt practically on the east side. * * * I know this particular batch of dirt that he [Rebmann] was working on was on the east side, because I was right there when it happened. * * * I imagine the truck was 30 or 40 feet from Rebmann. * * * If there was other machinery in the way, the truckers would have to seek their way to the mixer."
With respect to the side of the road being used by the loaded trucks, the plaintiff testified:
"On Monday, before I was hurt, they were just starting [the paving] from the highway going northeast. We didn't get started laying concrete until about 10 o'clock in the morning on Monday. * * * It rained Tuesday, and Wednesday. I worked ahead of the mixer. * * * I first worked on the west side. * * * On Monday, we got down there about fifty or sixty feet ahead of the mixer before the trucks started working, then we laid the forms on the west side before we laid them on the east side, and we laid them all on the west side all the way up just about to the end where they were going to pave. * * * There had been trucks going up within those forms, or within the west form and where I was working, before that day. These trucks went on the west side, notrucks had gone up on the east side until Heesch came along.
Those trucks prior to the Heesch truck coming up there with anybody in the way would blow their horn, and that was the practice of all of them. * * * I didn't have any knowledge of the approach of this truck at all before it hit me. * * * I didn't have any information or sound of any kind that would tell me that any truck was coming up the east side of that road. * * *
"Q. Had any car driven near the place where you were *Page 575 working before you were hit? A. No. No car had driven before thatday anywheres near where I was working.
"Q. Was there a path or beaten path of the trucks on any partof that road? A. The west side of the road.
"Q. Yes, did you have any idea that any car was going to comeanywheres near where you were working? A. No."
Corroborating the testimony for appellee, that the trucks had used the west side in backing in, is the testimony of the defendant:
"We always backed up along the west and when we got up close tothe mixer, let the empty trucks out and then we would back over to the middle to back into the scoop. * * * They most generally came out on the east side, and we backed in on the west side."
Defendant's witness, the trucker, Rose, also testified:
"The way I recollect it, is that as a general rule the loaded trucks tried to back on the west side with the left hand door open so they could watch the form and keep far enough away so they wouldn't knock it out of line, and of course now and then there might be machinery there at different intervals that we had to back around."
On the issue of the failure of the defendant to sound a horn or to give any signal, no contest was made by the defendant. He testified that he did not sound the horn of the truck. It was his contention that it was not customary for the truckers to sound the horns in operating their trucks on the road being constructed. Some of the other truckers so testified. One of them testified that they blew their horns if they thought some one was in danger. He said that the other truckers never blew a horn while he was around there. The defendant said that if they did it would sound like a music box around there. Defendant's counsel also contended that under section 264 of chapter 134 of the Acts of the Forty-seventh General Assembly, the defendant was exempted from using a horn on the road under construction.
On the issue of failure to keep a proper lookout, the defendant claimed that in backing his truck he held the left door open with his left arm, and looked backward out of the open *Page 576
door, and guided the truck with his right hand, and that it was impossible to see anyone to the right and rear of the truck unless he was back a considerable distance. The top of defendant's cab was two feet higher than the top of the box of the truck. It was also his contention that it was the duty of the ground levelers and their foreman to look out for their own safety, and to keep out of the way of the trucks. Some of the truckers testified to the same effect. One of them testified that: "You can't look back because it takes time."
The plaintiff and the other ground workers were in plain view of the defendant and the other truckers, as they came north on 8th street to the place where they stopped to back into the new road. Plaintiff was working but 30 or 40 feet away as the defendant drove by, stopped and began backing. The testimony of defendant and his trucker witnesses was that the driver of a truck could not see anyone to his right and rear when backing. If it be conceded as true, yet this did not excuse the defendant from looking and seeing the plaintiff before he began to back, and when the plaintiff was approximately twice the length of the truck from him. Knowing the difficulties of seeing anyone to his right rear, defendant should have used ordinary care to look and see whether anyone was there, before he began the operation of backing, when there was nothing to interfere with his looking and seeing. It is true the plaintiff could also see the defendant, and he admits that he did not pay any attention to the trucks as they came north on 8th street, while working on the east side. Under the record made there were no reasonable grounds for his doing so. Under the plan and practice of the work, the truckers were supposed to, and had been backing their loaded trucks on the west side of the roadway, and the plaintiff had no reason to believe that the defendant would violate this plan and practice. No notice, warning or signal of any kind was given by the defendant that he would back up on the east side. Defendant said:
"I could have seen him if I had looked, my eyes are good."
But there is no evidence that he did look at the time and place, when and where, he could have seen, and warned, and avoided injuring the plaintiff. If it be conceded that defendant's contention is sound that section 264 of chapter 134 of the Acts of the Forty-seventh General Assembly exempted him *Page 577
from using the horn on the truck while on the road under construction, which contention we do not concede, it did not exempt him from such use of the horn, while he was on 8th street,a highway in use, from which he was in the act of backing, if ordinary care required him to so do under the circumstances.
While said section does exempt those referred to therein, from certain requirements specified in the chapter, it does not release such persons from the use of ordinary care nor absolve them from their negligence, nor was it ever, in our judgment, so intended by the legislature. If under the facts in this case, ordinary care required the defendant to sound his horn, while working on this road under construction, or to give some warning to the plaintiff, said section 264 will not excuse his failure to do so.
The appellant relies strongly upon the decision in Hedberg v. Lester, 222 Iowa 1025, 270 N.W. 447. Because of the different fact situation in each case, the decision in the Hedberg case is not controlling here. The position in which Hedberg placed himself put him in a position of extreme danger. Loaded trucks were backing in on the east side of the road, at the rate of one every 90 seconds, and they were returning at approximately the same rate. The trucks were 6 1/2 feet wide. Plaintiff had instructed them to keep at least one foot from the side forms. The roadway was 18 feet wide. Allowing 13 feet for the trucks and 2 feet for form clearance, the maximum clearance between the trucks would be 3 feet, a precariously narrow pathway for an adult to walk. He was moving in a zone where the hazard of injury was continuously changing. Hedberg had formulated these rules. Knowing all the conditions he had walked 200 feet, without once looking back, but a short distance west of an unmarked center line. In the present case three witnesses testified that the trucks backed in about one every 10 or 15 minutes. There was no direct evidence to the contrary, although, by computation, the defendant seeks to refute this. The roadway was 20 feet wide. The plaintiff was working under instructions of his foreman, at the place where he was told to work. He was at the outside edge of the road, in a place of reasonable safety, under the plan and practice of the work. The question of his contributory negligence was for the jury. Under the record there was evidence to justify both the submission *Page 578
of the three grounds of negligence alleged, to the jury, and to support its verdict.
[2] II. Instruction 5 was as follows:
"The first charge of negligence against the defendant, as I have said, is that he was backing his truck without looking or observing the presence of plaintiff in the path of his moving truck. I need scarcely say that in moving a truck where men are at work, it is ordinarily the duty of the operator to keep a lookout in the direction in which his truck is moving, and to take note of any persons or other discernible objects in the path of his moving vehicle, if any; his duty in this respect being to exercise such reasonable observation and lookout in the direction in which he is moving, and such reasonable precautions, as a person of ordinary care and prudence would exercise under like circumstances. If he discovers, or in the exercise of reasonablecare should have discovered, a person in the path of his movingvehicle, it is his duty to exercise the care and caution of anordinarily prudent person to bring his vehicle under propercontrol and take appropriate care to avoid a collision, even, ifnecessary, to bring his vehicle to a complete stop. An operator'sduty in this respect, as I have said, is measured by the care youwould expect from an ordinarily careful person under the same orlike circumstances.
"In this case if you find from a preponderance of the evidence that at and immediately before the accident in question defendant failed to keep a reasonable lookout in the direction in which he was moving his truck, and failed to exercise such powers of observation and such precautions in that respect as a reasonably careful person under like circumstances would have taken to have observed the plight of plaintiff at work in the path of his backward moving truck, then you have a right to find that he was remiss in his duty and was guilty of negligence as thus charged in the petition."
Defendant complains that the italicized portion of the instruction submits an allegation of the petition, that defendant did not have his truck under control, which issue had been withdrawn from the jury, and also submits general negligence. This criticism is not warranted, in our judgment. The court was instructing upon the duty of one, in the situation of the *Page 579
defendant, to use reasonable care to watch for and discover any one in the pathway of his vehicle, and upon discovering him to use reasonable care in the operation of the vehicle to avoid injuring him. The duty of keeping a proper lookout includes not only using reasonable and ordinary care to discover the person in danger, but also reasonable care in the operation of the vehicle to avoid injuring him. The instruction did no more than this, and did not inject into the case an issue that the defendant did not have his truck under control, nor did it permit the jury to speculate on negligence generally.
In discussing the phrases "proper lookout", or "keeping a lookout", speaking through Justice Hamilton, in Pazen v. Des Moines Transportation Co., 223 Iowa 23, 30, 272 N.W. 126, 130, the court said:
"It implies being watchful of the movements of his own vehicle as well as the movements of the thing seen. It involves the care, prudence, watchfulness and attention of an ordinarily careful and prudent person under the circumstances. * * * A proper lookout called upon the driver of each of these trucks to exercise that degree of care that an ordinarily prudent person would exercise, to ascertain where he was driving with reference to the middle of the pavement, and also with reference to the position of the other vehicle approaching, and to govern his speed in such a way as to be able to keep his machine under control and upon his proper side of the pavement, in order to avoid a collision."
Defendant has assigned some other errors pertaining to the instructions. We have carefully studied these, but find no error. The judgment appealed from is therefore affirmed. — Affirmed.
OLIVER, C.J., and HALE, SAGER, HAMILTON, STIGER, MITCHELL, and RICHARDS, JJ., concur. *Page 580
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154
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Eomorbblo aoor6. Il. !3hePpud, Pyp a
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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1318
Fern Hill Place Retail Association, Inc.,
Appellant,
vs.
Fern Hill Place Homeowners Association, Inc.,
Respondent.
Filed April 18, 2016
Affirmed
Hooten, Judge
Hennepin County District Court
File No. 27-CV-14-17963
Kay Nord Hunt, Michel R. Moline, Lommen Abdo, P.A., Minneapolis, Minnesota (for
appellant)
J. Robert Keena, Wilbert V. Farrell IV, Jason A. Raether, Hellmuth & Johnson, PLLC,
Edina, Minnesota (for respondent)
Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and
Randall, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
HOOTEN, Judge
Appellant retail association challenges the district court’s denial of its motion to
vacate an arbitration award, arguing that the arbitrator exceeded the scope of his power,
there was no agreement to arbitrate, and the arbitration was conducted without proper
notice. We affirm.
FACTS
Appellant Fern Hill Place Retail Association, Inc. (RA) and respondent Fern Hill
Place Homeowners Association, Inc. (HOA) are common interest communities that occupy
portions of the same building and associated property. The RA and the HOA operate
pursuant to a declaration of easements, covenants, and restrictions (declaration) that was
filed with the Hennepin County Registrar of Titles on November 2, 2001. Section 9 of the
declaration contains the following arbitration clause:
All questions, differences, disputes or controversies
arising hereunder (except those to be determined by the
[a]rchitect) shall be settled by arbitration in accordance with
the then-existing rules of the American Arbitration Association
(“AAA”). . . . The arbitrators designated and acting under this
[a]greement shall make their award in strict conformity with
the AAA’s rules and shall have no power to depart from or
change any of the provisions thereof. Any such award shall be
binding upon the [a]ssociations and enforceable by any court
exercising competent jurisdiction over the [a]ssociations.
In December 2012, the HOA commenced an American Arbitration Association (AAA)
arbitration proceeding against the RA, demanding $63,335.09 in allocated expenses, plus
2
attorney fees and interest. The demand stated that the nature of the dispute was that the
RA was “in default of its financial obligations under the [d]eclaration.”
On December 14, 2013, two days before the scheduled arbitration hearing, counsel
for the RA, Jack Pierce, informed the arbitrators that there was no need for a hearing
because the parties had settled their dispute. Counsel for the HOA, John Trout, confirmed
that a settlement was reached. A few days later, Pierce sent Trout the final version of the
settlement agreement, which was confirmed by Trout. Per the request of Trout, the
arbitration proceeding remained open pending compliance with the terms of the settlement
agreement.
The HOA approved the settlement agreement, had a board member sign it, and
tendered the return of replacement reserve funds to the RA as required under the settlement
agreement. After reaching settlement in December 2013 and continuing until April 2014,
Trout contacted Pierce at reasonable intervals, inquiring as to the status of the RA’s signing
the settlement agreement and making the settlement payment. In these communications,
Trout repeatedly informed Pierce that the HOA would move to have the settlement
agreement confirmed if the RA did not execute and perform under the settlement
agreement. In response to these communications, Pierce at times represented that the
signature and payment were forthcoming. Pierce never notified Trout of any objections to
the settlement agreement or denied that an agreement had been reached.
On April 21, 2014, the HOA brought a motion to the arbitrator who was presiding
over the still-pending arbitration proceeding, seeking to confirm the validity and
enforceability of the settlement agreement. The RA submitted a memorandum in
3
opposition to the HOA’s motion, and the HOA submitted a reply memorandum. The
parties discussed having an argument before the arbitrator. Steve Weintraut, the RA’s new
counsel after Pierce withdrew as counsel of record, asked for “the opportunity to review
[the HOA’s] [r]eply and request oral argument by noon on Monday, 7/14.” The arbitrator
indicated that he would review the parties’ briefs and let them know whether he thought
oral argument would be helpful. The RA never requested oral argument, and no oral
argument was ever held. On July 29, 2014, the arbitrator issued his final order and award,
confirming the validity and enforceability of the settlement agreement. On October 27,
2014, the RA brought a motion in district court to vacate the arbitration award, arguing,
among other things, that the arbitrator exceeded his powers, there was no agreement to
arbitrate, and the arbitration was conducted without proper notice. The district court denied
the RA’s motion to vacate the arbitration award and affirmed the award. This appeal
followed.
DECISION
“Arbitration is a proceeding favored in the law.” City of Brooklyn Ctr. v. Law Enf’t
Labor Servs., Inc., 635 N.W.2d 236, 241 (Minn. App. 2001), review denied (Minn. Dec.
11, 2001). “An appeal from an arbitration decision is subject to an extremely narrow
standard of review and the reviewing court must exercise every reasonable presumption in
favor of the arbitration award’s finality and validity.” Aaron v. Ill. Farmers Ins. Grp., 590
N.W.2d 667, 669 (Minn. App. 1999) (quotation omitted), review denied (Minn. June 16,
1999).
4
I.
The RA first argues that the arbitration award should be vacated because the
arbitrator exceeded the scope of his power. The Minnesota Uniform Arbitration Act
provides that a court must vacate an arbitration award if the “arbitrator exceeded the
arbitrator’s powers.” Minn. Stat. § 572B.23(a)(4) (2014). This court determines the scope
of an arbitrator’s authority de novo, and “[t]he burden of establishing that the arbitrator
exceeded his authority is on the party who challenges the award.” Klinefelter v. Crum &
Forster Ins. Co., 675 N.W.2d 330, 333 (Minn. App. 2004). “An arbitration award will be
set aside by the courts only when the objecting party meets its burden of proof that the
arbitrators have clearly exceeded the powers granted to them in the arbitration agreement.”
Seagate Tech., LLC v. W. Dig. Corp., 854 N.W.2d 750, 760–61 (Minn. 2014) (quotation
omitted).
The RA argues that the arbitrator exceeded his power by enforcing a private
agreement outside the scope of the arbitration, specifically contending that the scope of the
arbitration was limited to determining what, if anything, the RA owed the HOA because
the demand claimed only that the RA “[was] in default of its financial obligations.” But,
the Minnesota Supreme Court has stated that whether the parties intended to arbitrate a
given issue is determined by the text of the parties’ arbitration agreement. Id. at 761. The
arbitration clause in the declaration provides that “[a]ll questions, differences, disputes, or
controversies arising hereunder . . . shall be settled by arbitration.” Therefore, the
arbitrator’s power was not limited to the dispute laid out in the HOA’s demand.
5
The RA argues that the “arising hereunder” language in the arbitration clause limits
its scope, but cites no binding precedent in support of this proposition. The only limitation
set forth in the declaration to the scope of the arbitrator’s authority relates to questions that
are to be determined by the building’s architect. And, the Minnesota Supreme Court has
warned that “[p]arties who want the courts to retain jurisdiction over matters of contract
formation, or any other particular issues they foresee may arise in the business relationship,
must expressly state such an intent when drafting the arbitration clause in the contract.”
Onvoy Inc. v. SHAL, LLC, 669 N.W.2d 344, 352 (Minn. 2003). We conclude that the
declaration gave the arbitrator the authority to confirm the validity of the settlement
agreement because it was a dispute that arose from the parties’ obligations under the
declaration.
The RA also contends that the arbitrator exceeded his authority because the
declaration cannot be amended by arbitration. The declaration provides that it can be
amended only by the affirmative vote or agreement of 67% of the unit holders and
mortgagees of both the RA and the HOA. The RA argues that paragraphs 5-12 of the
settlement agreement, most of which address the allocation of responsibility for services
between the parties or provide procedures for making payments, “add, change, or
contradict existing terms in the [d]eclaration.”
The district court determined that the settlement agreement did not amend the
declaration, but rather “re-pr[e]scrib[ed] or clarif[ied] the parties’ obligations under the
[d]eclaration.” The district court also noted that the declaration provides that its provisions
“shall be liberally construed to effectuate its purpose of creating a uniform plan for the
6
ownership and operation of a first-class multi-unit commercial and multi-unit residential
building” and that “whenever a matter arises which is not covered by th[e] [d]eclaration,
such matter will be resolved in a manner which will be in the best interests of both [the RA
and the HOA].” Based on these provisions, the district court reasoned that the declaration
“contemplated and encouraged” subsequent agreements between the parties.
Based on our review of the declaration and the settlement agreement, we conclude
that the settlement agreement did not amend the declaration. Rather, the terms of the
settlement agreement that the RA objects to as amending the declaration do not conflict
with the express terms of the declaration, but merely categorize individual expenses or
specify processes for the implementation of the terms of the declaration, presumably in an
attempt to prevent future disputes between the parties. Because the settlement agreement
merely provides a procedure for the parties to perform their existing obligations under the
declaration and because the declaration encourages further agreements between the parties,
we conclude that the settlement agreement did not amend the declaration and therefore the
arbitrator did not exceed his authority by enforcing it.
Even if we determined that the settlement agreement amended the declaration, the
arbitrator did not exceed his powers by enforcing the agreement. In EEC Prop. Co. v.
Kaplan, the party challenging the arbitration award argued that the arbitrator lacked the
power to fashion a remedy that varied the terms of the underlying partnership agreement.
578 N.W.2d 381, 385 (Minn. App. 1998), review denied (Minn. Aug. 31, 1998). This court
agreed that the arbitrator’s award varied the terms of the partnership agreement, but
concluded that the award had “a basis in the underlying contract, the arbitration clause, and
7
the submission.” Id. at 386. This court reasoned that the arbitrator had broad authority,
there were no specific limitations on what remedy the arbitrator could award, the award
was fashioned to prevent a more drastic step of dissolving the partnership, and the award
drew on provisions in the partnership agreement. Id.
Likewise, the arbitrator here had broad authority and no specific limitations on the
remedy he could award. As discussed above, the arbitration clause in the declaration
broadly applies to “[a]ll questions, differences, disputes or controversies arising [under the
declaration].” Furthermore, the arbitration agreement did not limit the remedy that the
arbitrator could award, and the governing AAA rules provide that “[t]he arbitrator may
grant any remedy or relief that the arbitrator deems just and equitable and within the scope
of the agreement of the parties.” Rule 43(a), American Arbitration Association
Commercial Arbitration Rules (2009). Additionally, the award here was based on the
parties’ own settlement agreement, which reasonably attempted to clarify the rights and
obligations of the parties under the declaration, given the parties’ history of disputes
regarding their obligations under the declaration. Moreover, as the district court observed,
the declaration “contemplated and encouraged” subsequent agreements such as the
settlement agreement. Under these circumstances, even if the settlement agreement
amended the declaration, the arbitrator did not exceed his power by confirming the validity
and enforceability of the settlement agreement.
In conjunction with its argument that the settlement agreement amends the
declaration, the RA argues that enforcing such an amendment is against public policy.
While not a statutory basis for vacating an arbitration award under Minn. Stat. § 572B.23
8
(2014), Minnesota courts have recognized that public policy may provide a basis for courts
to vacate an arbitration award in limited circumstances. Brooklyn Ctr., 635 N.W.2d at 241;
City of Minneapolis v. Police Officers’ Fed’n of Minneapolis, 566 N.W.2d 83, 89 (Minn.
App. 1997). But, because we have determined that the enforcement of the declaration does
not amend the declaration, the RA’s argument fails at the outset.
Next, the RA argues that the arbitrator lacked the authority to hear the dispute
because of the release of claims provision in the settlement agreement. The settlement
agreement states that “[t]he parties mutually waive and dismiss with prejudice all claims
brought and those that could have been brought within the [arbitration] and said arbitration
shall be dismissed in its entirety with prejudice.” The settlement agreement also provides
that “[i]n the event of a dispute related to this [a]greement,” the dispute shall be resolved
according to the provisions of the declaration, namely arbitration. The RA argues that
because the settlement agreement stated that it dismissed the claims that were brought or
could have been brought in the arbitration, the HOA was barred from seeking any remedy
in that arbitration and had to commence a separate proceeding to seek enforcement of the
settlement agreement, even though the settlement agreement was the parties’ solution to
the dispute that began the arbitration. Other than referencing the statute providing that a
party may seek to have an arbitration award vacated if the arbitrator exceeded his powers,
the RA cites no law for this argument.
Because the parties’ agreement to waive the claims was dependent upon the
execution and enforceability of the settlement agreement, it would be illogical to bar the
arbitrator from confirming the settlement agreement on the grounds that the settlement
9
agreement waived the claims that were raised or could have been raised in the arbitration.
Moreover, the RA’s argument that the parties should have brought the dispute in a separate
arbitration proceeding would contravene the underlying purpose of arbitration “to provide
an efficient and relatively inexpensive mechanism for resolving disputes.” Correll v.
Distinctive Dental Servs., P.A., 607 N.W.2d 440, 445 (Minn. 2000). Because the RA’s
argument is illogical and would undermine the purpose of arbitration, we reject the
contention that the HOA had to bring a separate arbitration proceeding to seek enforcement
of the settlement agreement because of the waiver clause in the settlement agreement.
II.
Next, the RA argues that the parties did not have an agreement to arbitrate because
the parties only agreed to arbitrate the amount of money the RA owed the HOA. Minn.
Stat. § 572B.23(a)(5) provides that a court shall vacate an arbitration award if “there was
no agreement to arbitrate.” “When determining whether parties agreed to arbitrate an issue,
the court analyzes whether a valid arbitration agreement exists and, if so, whether the
dispute falls within the scope of the agreement.” Churchill Envtl. & Indus. Equity
Partners, L.P. v. Ernst & Young, L.L.P., 643 N.W.2d 333, 337 (Minn. App. 2002). The
RA does not challenge the validity of the arbitration clause. And, the clause provides that
“[a]ll questions, differences, disputes or controversies arising [under the declaration] . . .
shall be settled by arbitration,” which would include deciding whether the settlement
agreement, which delineated the parties’ obligations under the declaration, was valid. The
RA’s dissatisfaction with the breadth of the arbitration clause is not a basis for vacating the
arbitration award.
10
III.
Finally, the RA argues that the arbitration was conducted without proper notice of
the initiation of the proceeding. Minn. Stat. § 572B.23(a)(6) states that a court shall vacate
an arbitration award if “the arbitration was conducted without proper notice of the initiation
of an arbitration as required in section 572B.09 [2014] so as to prejudice substantially the
rights of a party to the arbitration proceeding.” The RA does not dispute that it received
notice at the beginning of the proceedings, but argues that there was no proper notice of
the re-initiation of the proceedings when the HOA moved to confirm the validity and
enforceability of the arbitration agreement. The RA points out that it could not have raised
its objection to the lack of proper notice before the commencement of the arbitration
hearing, as required by Minn. Stat. § 572B.09, because there was no arbitration hearing.
But, that statute provides the notice requirements for when “[a] person initiates an
arbitration proceeding,” not for when a motion is made in an existing arbitration
proceeding. Minn. Stat. § 572B.09(a) (2014). Furthermore, the RA fails to cite any
prejudice that it suffered because the arbitration was allegedly conducted without proper
notice of the re-initiation. And, because it knew of the re-initiation of the proceedings,
participated in the proceedings, and had 73 days after the HOA’s motion to submit its
opposing memorandum, the RA cannot show that it was substantially prejudiced. Because
the RA received proper notice of the initiation of the arbitration proceedings, the RA’s
argument is without merit.
Affirmed.
11
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06-09-2016
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The plaintiff's action is upon a promissory note executed by the defendant, a copy of which, it was alleged, was set out in the petition. According to the copy so set up, the note was due "on or before April 1, 1924."
The answer as amended admitted the execution and delivery to plaintiff of a note of like amount on the date of the note, but alleged that the note, when executed, contained an agreement that it was not to become due until what was known as the Anderson farm should be sold by the defendant, and that, after the delivery of the note, it was materially altered by erasing therefrom, without defendant's knowledge or consent, the provision that the note was not to become due until the Anderson farm was sold. It was further alleged that defendant had not yet sold the Anderson farm, and that the note was not due. The answer presented as a complete defense to the note the claim that it had been materially altered after its delivery, and a plea in abatement that the action was premature.
In a reply, plaintiff denied any material alteration of the note, and alleged that the words "this note becomes due when Anderson's farm is sold as per contract" were written on the note after its delivery, with the knowledge and consent of defendant, and that the interpretation placed upon such words at the time was that, should the defendant sell his farm before April 1, 1924, then and in that event the note should be due, but not later than April 1, 1924.
The note was on a printed form, and, as introduced in evidence, bore in writing above the signature of the appellant the words:
"This note becomes due when Anderson's farm is sold as per contract."
It is not disputed that these words are in the handwriting of one Creigher, cashier of the Truro bank. It is the contention of appellee, and the evidence on his behalf tended to so show, that they were first written upon the note by Creigher with appellant's consent at a time when the bank held the note as *Page 483
collateral security, and without the consent, of appellee. Appellant, although conceding that the words now appearing on the note were written by Creigher while it was in the hands of the bank, contends, and so testified, that the same words were on the note at the time he signed it, and were subsequently erased without his consent, and later rewritten by Creigher.
I. It is clear that, upon appellant's contention, as disclosed by his testimony, and repeatedly asserted by his counsel in argument, that the words now appearing on the 1. ALTERATION note are the same as those originally written OF there at the time the note was executed, his INSTRUMENTS: claim of a material alteration, pleaded as a material complete defense, must fail. According to his alterations: testimony, the note is now of exactly the same erasure and tenor and effect as when he executed it. 2 reinsertion: Corpus Juris 1220; Reed v. Roark, 14 Tex. 329
effect. (65 Am. Dec. 127); Earnest v. Woodlee (Tex. Civ. App.), 208 S.W. 963.
II. Upon the plea in abatement, there was a conflict in the testimony as to whether the words in question were on the note at the time of its execution and delivery; and appellee, having asked and secured a directed verdict in his 2. APPEAL AND favor, which he seeks here to sustain, is in no ERROR: party position to insist in this court that the note entitled as originally executed did not contain those to allege words, and that he was entitled to a directed error: verdict on the plea of abatement. The action of estoppel. the court in directing a verdict can obviously not be sustained on the theory that the words in question were not in the note as executed by appellant and delivered to appellee, in view of the conflict in the evidence on that point. The direction of a verdict can only be sustained, if at all, upon the theory that appellee was entitled, as a matter of law, to recover on the note as introduced in evidence and containing the words in question.
The language is that the note becomes due when the farm is sold, as "per contract." It is plain that the entire contract is not expressed in the writing. The writing itself so states. The contract was partly in writing and partly in 3. TRIAL: jury parol. The parties agree that there was a parol question: understanding that the maturity of the note conflict of should be in some manner affected by the sale of evidence. the farm, and that the clause in question was written in the note in pursuance *Page 484
of such an agreement; but they do not agree as to when the agreement was made, or as to its terms. The language of the note as it stands is ambiguous, but it refers to the contract. It is clear, in this situation, that the language found in the note is not to be looked to alone to determine when it matures, but that this must be determined from the contract to which the note refers. Sieberts v. Spangler, 140 Iowa 236; Sellers v. Dickert,185 Ala. 206 (64 So. 40). Testimony was introduced by both parties without objection, as to what the actual agreement was.
If the words in controversy were first written in the note by the cashier of the bank while the bank held it as collateral security, and in pursuance of an agreement that the sale of the farm, if made before April 1, 1924, should accelerate the maturity, but not postpone it beyond that date, as the testimony on behalf of appellee tended to show, the plea in abatement must fail, and plaintiff would be entitled to recover. But, if the words were in the note at the time of its execution by defendant, and were in pursuance of an agreement then made that it should not mature until the farm was sold, as the testimony on behalf of appellant tended to show, the action was premature, and the plea in abatement was good. Upon this point the testimony was in sharp conflict, and the question was clearly one for the jury.
In any view of the case, on the issues presented by the plea in abatement the question was for the jury, and the court was in error in directing a verdict for the plaintiff. There is no claim that the note was due, under the doctrine of Dille v. Longwell,188 Iowa 606, in a reasonable time.
The cause is — Reversed and remanded.
De GRAFF, C.J., and STEVENS and FAVILLE, JJ., concur.
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07-05-2016
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The plaintiff, as administrator of LeRoy T. Fay, brought the instant action seeking to recover from the defendants, *Page 276
Dorow and the Willards, for the death of the decedent, LeRoy T. Fay, resulting from injuries received in a collision between automobiles driven by the defendant, Dorow, and the defendant, John W. Willard, Jr. Plaintiff's petition alleges that the decedent was riding in the rear seat of a Chevrolet sedan owned by the defendant, John W. Willard, Sr., and being driven by the defendant, John W. Willard, Jr., in a westerly direction on U.S. Highway No. 30 near the town of Mechanicsville, Iowa; that a Chevrolet coupe owned and driven by the defendant, Dorow, was proceeding in an easterly direction and toward the Willard automobile; that the two automobiles collided just outside the corporate limits of Mechanicsville, Iowa; and that as a result of said collision the decedent received injuries from which he soon thereafter died. The plaintiff further alleges that the collision and resulting injuries and death "were the direct and proximate result of the concurrent, reckless, and negligent conduct of said defendants." Four specific violations of the law of the road were alleged against the driver of each of the cars involved, as follows: The defendant, Willard, Jr., is charged (1) with failing to yield one-half of the traveled portion of the highway as he approached the oncoming car; (2) that he failed to have his car under control; (3) that he failed to keep a proper lookout; and (4) that he was operating his automobile at an excessive rate of speed. The same identical charges were made against the defendant, Dorow. The allegation is then made: "The said negligent and reckless acts and conduct of said defendants in the particulars set out above operated jointly and concurrently as the direct and proximate causes of the collision and resulting injuries to said decedent, LeRoy T. Fay." Then follow allegations that the decedent was free from contributory negligence; itemized statements of damages, and a demand for judgment against all defendants for a sum in excess of $25,000.
To this petition the defendants, Willard, filed a motion "to require the plaintiff to make his petition more specific by stating whether he charges the said defendants with both reckless and negligent acts or omissions and whether at the same time he alleges that the plaintiff's decedent was a guest in the Willard car. And in support hereof these defendants show to the Court that the present allegations of the petition are too ambiguous, general, vague and indefinite to apprise the defendants of the *Page 277
precise nature of the charge against them." This motion was overruled by the court and from such ruling this appeal is prosecuted.
[1] Some question is raised as to the right of the appellants to appeal from the ruling on a motion for more specific statement, but there is no merit to such contention. Section 11127 provides that when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or offense is not apparent, the court may, on motion, require it to be made more certain and specific.
Paragraph 4 of section 12823 of the Code provides that an appeal may be taken to the supreme court from "an intermediate order involving the merits or materially affecting the final decision."
In Dorman v. Credit Reference Co., 213 Iowa 1016, 1026,241 N.W. 436, 441, this court had under consideration this precise question and held that the order was appealable, and in disposing of the matter used the following language:
"It is a matter of common knowledge to bench and bar that many pleaders seek to confuse their antagonists by a system of `blind' pleading, which, without giving any definite information, yet contains a general allegation which appears sufficient. Unless the trial court sustains a motion for more specific statement to such a pleading, the defense must prepare to meet everything which could possibly be considered under the general allegation. This results in wholly unnecessary expense and delay. * * * It is our conclusion that the motion for more specific statement as to the foregoing matters should have been sustained, upon the ground that the information sought is clearly within the requirements of section 11127 of the Code of 1931." See also Ontjes v. McNider,218 Iowa 1356, 256 N.W. 277; Ellis v. Bruce, 215 Iowa 308,245 N.W. 320; Manley v. Paysen, 215 Iowa 146, 244 N.W. 863.
In the Dorman case, supra, this court announced the test by which the right of appeal from an intermediate order shall be determined, as follows:
"Will the party aggrieved thereby be deprived of some right which cannot be protected by an appeal from the final judgment?" *Page 278
The appellee contends that the ruling of the trial court was correct and that no appeal lies therefrom for the reasons that the petition advises the defendants that plaintiff claims both recklessness and negligence on the part of both defendants, and that the defendants should be prepared to meet the charge of recklessness as well as negligence; and that the plaintiff is not in possession of the facts necessary to advise the defendant whether the decedent was a guest or not; and that even if decedent was a guest in the Willard car, and that the defendants, Willard, were only liable for recklessness, that it does not follow that they would be entitled to a separate trial. But these contentions are no answer to the defendants' claim that there was error in overruling their motion for more specific statement.
[2] It is true that the general rule is that joint tort-feasors may be joined in one action, and also that the granting of separate trials is ordinarily largely a matter within the discretion of the trial court. However, it is apparent from a reference to the plaintiff's petition that something more is necessarily involved than the mere liability of joint tort-feasors. It is true that the petition charges all defendants with both reckless and negligent acts, or omissions to act, but it does not charge that the decedent was a guest in the Willard car. If he was a guest then the allegations of negligence against him would be surplusage and would add nothing to the pleading, and if he was not a guest then the charge of recklessness would be surplusage and would add nothing to the pleading. The only allegation in the pleading as to the status of the decedent is that he was "riding" in the rear seat of the Willard car. It clearly does not appear whether plaintiff is relying as against the defendants, Willard, on the relationship of guest on the part of decedent, in which event it would be necessary to charge recklessness, or whether he is relying upon some status other than that of guest, in which case a charge of negligence alone would be sufficient. The standard of care would be different in either case. If decedent was a guest then the standard of care involved would be whether the driver of the car was guilty of some act which constituted recklessness. And if the status of decedent was other than that of guest, then the standard of care would be only to avoid a charge of negligence. We have frequently defined recklessness and negligence, and it must be known and recognized by the *Page 279
profession that there is a wide difference between the two. Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46.
It is apparent that the interests of the defendants, Willard, and the defendant, Dorow, are hostile and opposed. If the decedent was a guest, then it would be necessary, under the present pleading, to show as against the defendants, Willard, that they were reckless, and only necessary to show as against the defendant, Dorow, that he was negligent. Each of the defendants may and probably will contend on the trial that the acts and conduct of the other was the sole proximate cause of the collision and resulting injuries. Obviously the issues would necessarily be complex and abstruse and without question the jury would be confused and perplexed if the charge as to recklessness of the defendants, Willard, and issue as to the negligence as to the defendant, Dorow, were submitted to it for determination.
In the case of Manley v. Paysen, 215 Iowa 146, 244 N.W. 863, an opinion written by the late Justice Evans, this court had under consideration a motion for separate trials in a case in which one defendant was charged with recklessness because of a guest relationship, and the other with negligence, and in that case we held that a separate trial should be granted. And in making such ruling we said:
"There was no prior concert of action between the two defendants. They were suable jointly for their concurring negligences as alleged in the petition, regardless of prior concert of action between them. The statute [Code 1931, § 11437], however, expressly authorizes the court to grant separate trials in such a case. Did the court err in refusing to do so? It will be noted that they have nothing in common in the defenses presented. Manley admits that his brother was his guest; Paysen denies it. Manley denies his own recklessness; Paysen avers it. Manley avers that Paysen was negligent; Paysen denies it. Paysen avers that the decedent and the defendant Manley were jointly engaged in the same adventure; Manley denies it.
"To these various hostilities between them is added the further fact that the plaintiff's suit against them is not based upon the same legal liability. It will avail the plaintiff nothing, as against defendant Manley, to show that he was negligent. She must show that he was guilty of reckless driving. The *Page 280
statute exonerates him from liability for negligence so far as the decedent was concerned. So far as Paysen is concerned, it would be a complete defense for him to show that the negligence of defendant Manley was the sole cause of the accident.
"This is a sufficient indication of the very complex and abstruse questions which would have to be submitted to the jury in the event of a joint trial. Furthermore, in a joint trial, cooperation between the defendants must be enforced. Manifestly it cannot be voluntary where their actual interests are so adverse. In the exercise of peremptory challenges, one defendant may wish to discharge a juror and the other may wish to retain him. Either one may block the peremptory challenges desired by the other. We think the case is one wherein the substantial rights of one defendant or the other would be materially affected by a joint trial. Unless the situation presented herein is sufficient warrant for separate trial, we can hardly conceive of any function to be served by the statute [Code 1931, § 11437] which authorizes the court to grant separate trials."
It is true that the petition in the Paysen case was more definite and certain than the petition in the instant case, but the language used in the determination of the right of one of the defendants to a separate trial is very pertinent to a determination of the question involved in this appeal. If the decedent was a guest in the Willard car then under the ruling in the Paysen case the Willards would be entitled to a separate trial.
[3] It is clear that the statement in the petition to the effect that the collision and resulting injuries and death "were the direct and proximate result of the concurrent, reckless, and negligent conduct of the said defendants" does not apprise the defendants as to whether the plaintiff is relying upon recklessness as to one defendant and negligence as to the other, and that it is ambiguous, general, vague, uncertain, and indefinite, and that if it is allowed to stand in its present form will result in prejudice to the rights of the defendants. In any lawsuit the defendants are entitled to be intelligently and definitely apprised as to the charge against them to the end that they may be prepared to meet such charge and take advantage of any legal rights they may have. In the instant case defendants would be entitled to separate trials if the decedent occupied the status *Page 281
of guest in the Willard car, and if they are not advised as to whether such status existed prior to the trial of the case then they are defeated of that legal right. We are of the opinion that the motion was sufficiently explicit to require the plaintiff to state whether he was relying both upon recklessness and negligence, and if upon recklessness to state such facts as would place him within that rule. The plaintiff is asserting and claiming a legal right to recover damages, he must place himself in such a position as to be entitled to that right without camouflage and without resorting to a blind and concealed statement of the facts upon which he must rely.
We are of the opinion that the plaintiff must be required to state whether he claims against the defendants, Willard, on the ground of negligence by reason of the status of the decedent being something other than that of guest, or upon the ground of recklessness by reason of the decedent occupying the status of guest, and that the trial court was in error in overruling defendants' motion for more specific statement. It necessarily follows that the ruling of the trial court must be and it is reversed. — Reversed.
HAMILTON, C.J., and KINTZINGER, DONEGAN, PARSONS, RICHARDS, STIGER, and SAGER, JJ., concur.
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01-03-2023
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09-29-2016
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https://www.courtlistener.com/api/rest/v3/opinions/4083170/
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SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
595
CA 13-01592
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND DEJOSEPH, JJ.
MEADOWLANDS PORTFOLIO, LLC, AS ASSIGNEE OF
FEDERAL DEPOSIT INSURANCE CORPORATION,
PLAINTIFF-APPELLANT,
V ORDER
GEORGE F. MANTON, SR., DEFENDANT-RESPONDENT,
ET AL., DEFENDANTS.
(APPEAL NO. 2.)
SCHWERZMANN & WISE, P.C., WATERTOWN (KEITH B. CAUGHLIN OF COUNSEL),
FOR PLAINTIFF-APPELLANT.
SLYE & BURROWS, WATERTOWN (ROBERT J. SLYE OF COUNSEL), FOR
DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Jefferson County
(James P. McClusky, J.), entered May 14, 2013. The order directed
plaintiff to file a discharge of mortgage upon a certain payment by
defendant George F. Manton, Sr.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Entered: June 20, 2014 Frances E. Cafarell
Clerk of the Court
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10-07-2016
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I. Sometime prior to April 13, 1923, pretending to represent one C.M. Pearson, Willard H. Halvorsen applied to D.S. Kruidenier, trustee of the D. Kruidenier estate, for a loan of $8,000 upon a tract of land near Nevada, in Story County. The loan was finally consummated on the above date by the delivery of a check for $8,000 to Halvorsen, drawn by the D. Kruidenier estate on the Bankers Trust Company, and made payable to C.M. Pearson. On the following day, the check, bearing the following indorsements on the back thereof, "C.M. Pearson, D.W. Sloeb," was deposited in the Peoples Savings Bank of Des Moines, to the credit of an account carried in the bank in the name of Dirk W. Sloeb. The check was cleared through the local clearing house, and paid by the Bankers Trust Company, on which it was drawn, and charged to the account of appellee.
This action was commenced November 22, 1924. Appellee alleged in the petition that, on or about May 1, 1924, the trustee for the appellee estate learned for the first time that the indorsement of the payee named in the check on the back thereof was a forgery, and that both C.M. Pearson and D.W. Sloeb were fictitious and nonexistent persons. The excuse offered for not earlier learning the facts, as alleged in the petition, was that the interest had been paid when due, and that he had had no occasion to question the genuineness of the note and mortgage until Halvorsen was arrested, upon charges preferred against *Page 778
him. Before the case was tried, the Peoples Savings Bank intervened, alleging in its petition that the check was paid upon the express waiver by the drawer of the identification of the payee and indorsers. This defense was also interposed by the defendant.
Appellee, at all times after the alleged forgery was discovered, claimed that Halvorsen forged the indorsements upon the back of the $8,000 check, and that no such person as C.M. Pearson or D.W. Sloeb ever existed.
The evidence is undisputed that, on April 13th, Halvorsen deposited in the Shaffer State Bank of Altoona, Iowa, a check for $8,000, drawn upon the Peoples Savings Bank, purporting to have been signed by Dirk W. Sloeb, and made payable to himself. This check was presented to and paid by the bank upon which it was drawn, April 14th.
Appellee offered and was permitted, over the objections of appellants, to introduce the testimony of the postmaster at Nevada, the deputy county treasurer, the county recorder, and the deputy county auditor of Story County, to show 1. EVIDENCE: that no such person as C.M. Pearson got mail at relevancy, the post office in Nevada; that his name did not materiality, appear in the post-office directory; and that he and had never known or heard of such a person's competency: residing in that community; that C.M. Pearson's fictitious name did not appear upon the books of the county person. treasurer, as a taxpayer of either personal or real property in Story County for the years 1922 and 1923; that the records of the county recorder's office showed that the title to the land described in the mortgage was owned in 1923 by the grantees of Lucy N. Silliman, widow of H.N. Silliman, to whom it was conveyed February 10, 1908.
The objection urged to the admissibility of the testimony above referred to is that it was immaterial and irrelevant to any issue joined, and did not tend to establish the cause of action pleaded. The land described in the mortgage was located near Nevada, and within the territory served by the post office in that city. The postmaster testified that, if a person by the name of C.M. Pearson lived upon the farm, or in that vicinity, his name would appear upon the directory of the office. All of the parties testifying to the above facts were long-time residents of Nevada or the vicinity, and were competent to testify *Page 779
as to whether a person by the name of C.M. Pearson resided therein. Moreover, it was not only material, but necessary, for appellee, in order to make out the charge of forgery, to show in some way that C.M. Pearson was a fictitious and nonexistent person. We can conceive of no better evidence by which this could be done than such as was offered by appellee. The testimony was relevant and material. People v. Sanders, 114 Cal. 216
(46 P. 153); People v. Sharp, 53 Mich. 523 (19 N.W. 168); Phelps v.Nazworthy, 226 Ill. 254 (80 N.E. 756).
II. Appellee also offered and was permitted to introduce the testimony of the assistant postmaster at Pella, Iowa, and of one H.W. Sloeb, a merchant in Pella, to prove that, on May 1, 1922, Post-office Box 294 at Pella was taken by Dirk 2. EVIDENCE: W. Sloeb, and that, on July 19, 1922, a second relevancy, receipt was issued to him therefor; that mail materiality, coming to the post-office address to the above and named person was frequently forwarded to Des competency: Moines. The assistant postmaster, who testified fictitious that he had numerous conversations with the person. party assuming to be D.W. or Dirk W. Sloeb, identified a photograph of Halvorsen as that of the person he had known as Sloeb. Both witnesses testified that they knew of no one in that vicinity by the name of D.W. or Dirk W. Sloeb.
The admissibility of the above testimony was challenged upon the grounds that it was immaterial, as the only question involved was whether the signature of C.M. Pearson was forged. The court also admitted in evidence the original statement of the account of Dirk W. Sloeb with the Peoples Savings Bank, together with the checks drawn thereon. The evidence tends strongly to identify Halvorsen as the person known as Sloeb, and to show that Pearson was a myth. The renting of a postoffice box at Pella under the name of Dirk W. Sloeb, the deposit in the Altoona bank of the $8,000 check drawn by Halvorsen to Sloeb, a fictitious person, on April 13th, and of the check in controversy, payable to a fictitious person, in the Peoples Savings Bank on the following day by Halvorsen, are not explainable upon any theory of good faith. We think it was entirely proper for appellee to show the above mentioned facts, as bearing upon the question of the identity of Pearson. The evidence disclosed a close relation between the several transactions, and *Page 780
tended to show that Halvorsen must have known that the indorsements on the back of the check were forgeries. The evidence tended to show a well planned scheme to defraud, and that the transaction with appellee was in furtherance of its execution. The evidence was admissible.
III. A handwriting expert called by appellee was permitted, over appellant's objections, to testify, by comparing the same with the genuine handwriting of Halvorsen, that, in his opinion, each and all of the checks offered in evidence, 3. EVIDENCE: as well as the indorsements upon the back of the opinion one in controversy, were written by Halvorsen. evidence: The jury was also instructed by the court that fictitious it might compare the various signatures and signature: specimens of handwriting claimed to have been expert and forged, with the admitted signatures or jury handwriting of Halvorsen, for the purpose of comparison. determining the genuineness of the disputed signatures.
The principal objection urged by appellant to this testimony is that the testimony of this witness does not come within the purview of Section 11278, Code of 1924, authorizing the introduction of evidence respecting handwriting, and was, therefore, incompetent. The statute is as follows:
"Evidence respecting handwriting may be given by experts, by comparison, or by comparison by the jury, with writings of the same person which are proved to be genuine."
The precise point urged is that the signatures and handwriting offered in evidence as standards were not the handwriting of the person whose signature is questioned, and that, therefore, the right to make the comparison did not exist. The theory of appellee upon which the evidence was offered was that the indorsements upon the back of the $8,000 check were in the handwriting of Halvorsen. If Pearson and Sloeb were myths and nonexistent, then it was certainly competent for appellee to prove, if that was possible, — whether it was necessary to do so or not, — that Halvorsen wrote the indorsements on the back of the check. In order to prove that the handwriting was that of Halvorsen, it was competent for the expert to compare the same with his genuine signature or handwriting. Of course, if the evidence is wholly insufficient, as claimed by appellants, to prove the fictitious character of Pearson, the rule might be otherwise. We need not, however, decide this question. The evidence was *Page 781
clearly admissible upon appellee's theory of the case. Nothing said in Klumb v. Iowa St. Trav. Men's Assn., 141 Iowa 519, is to the contrary.
IV. One Stewart was permitted to testify to part of a conversation heard by him over the telephone between Kruidenier and F.F. Flynn, the identity of whom he did not then know. The conversation was detailed by Kruidenier, and the 4. EVIDENCE: witness was competent to testify to what he relevancy, heard him say. The conversation was denied by materiality, Flynn, and the testimony of Stewart tended to and some extent to corroborate Kruidenier. Flynn, competency: who is vice president of the Peoples Savings part of Bank, testified that, before paying the check, telephone he took it to D.S. Kruidenier and told him he message. did not know Pearson, and asked him to waive the identification of the indorsement. Kruidenier denied this testimony, and asserted that the only conversation he had with Flynn was the one above referred to, over the telephone. To further corroborate the testimony of Kruidenier, B.B. Vorse, an officer of the Bankers Trust Company, was called as a witness, and permitted to testify that Flynn said to the witness that he talked with Kruidenier over the telephone concerning the check. One of the grounds of objection to this testimony was that no proper foundation was laid therefor. The record does not show that Flynn was interrogated as to the conversation with the witness. The conversation between Vorse and Flynn concerned the check which the savings bank had paid, and for which the Bankers Trust Company was held liable. They were representing their respective principals, and the important question was as to whether identification of the indorsements was waived by the drawer of the check. It was not very material whether the conversation was over the telephone or otherwise. Vorse did not pretend to know what the parties said. Even if the evidence was erroneously received, we are of the opinion that it could not have affected the result.
We have sufficiently disposed of all objections to the admissibility of evidence, although we have omitted special reference to some of it; and nothing will be gained by pursuing the subject further. The record discloses no ground for reversal. — Affirmed.
De GRAFF, C.J., and FAVILLE and VERMILION, JJ., concur. *Page 782
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To an understanding of the questions involved herein, a chronological statement of the facts seems to be necessary.
Joseph Engels, a resident of LaSalle County, Illinois, died testate on January 13, 1917. The first section of his will orders that all just debts, funeral expenses, and costs of administration of his estate be paid from the money or property of his estate. Section 2 bequeaths all personal property to his wife, Mary Engels. Section 3 devises a life estate in all real estate to his wife. Section 4 provides:
"On the death of my said wife, I give, and devise to my son, H.P. Engels [a certain 80-acre tract of land in Sioux *Page 37
County, Iowa], on the condition that my said son pay into my estate upon the death of my said wife the sum of $2,000, said sum to be a lien on said land until paid as aforesaid."
Section 5 devises another 80-acre tract of land to Mary Budde, a daughter, on the same conditions and wording as in Paragraph 4.
Section 6 devises to Lena Geisler, a daughter, another 80-acre tract for life, with the remainder therein over to the children of her body, and if she have no issue at the time of her death, to the devisor's heirs at law. Said daughter is prohibited from alienating this property, by conveyance or otherwise, and from incumbering, by mortgage or otherwise, her interest in the described real estate during her life.
Section 7 devises another 80-acre tract of land in Sioux County, Iowa, to Anna Engels, a daughter, subject to all of the provisions and conditions attached to the devise in Paragraph 4.
Section 8 devises to Joseph, a son, an 80-acre tract of land in LaSalle County, Illinois, subject to the same provisions and conditions as in Paragraph 4.
Section 9 devises to William, a son, an 80-acre tract of land situated in LaSalle County, Illinois, subject to the same provisions and conditions as in Paragraph 4.
Section 10. "On the death of my said wife, I give and bequeath to my children, Sebastian Engels, Kate Zoller and Lizzie Wuddel, the sum of $4,000.00 each."
Section 12. "All the rest, residue and remainder of my estate, whether real, personal or mixed, I give, devise and bequeath to my heirs at law, their heirs and assigns forever, share and share alike."
Section 13 appoints William Engels executor without bond.
This will was probated in Illinois, and letters testamentary were issued to William Engels on February 8, 1917. Thereafter, Ben (Sebastian) Engels, Kate Zoller, Lena Geisler, and Lizzie Wuddel filed a bill in the circuit court of LaSalle County, Illinois, to declare said testament null and void and to set aside the same, on the ground of mental incapacity and undue influence. After an expense of over $5,000 had been incurred, the contestants dismissed the bill in that court; and in November, *Page 38
1919, William Engels, executor, filed a final report and accounting in that court, and was discharged.
On January 14, 1920, a duly authenticated copy of the will and the certified probate proceedings in the LaSalle County, Illinois, court was filed in the office of the clerk of the district court of Iowa in and for Sioux County, as a foreign will, with a petition by Henry (H.P.) Engels, praying ancillary administration; and on that date, said last will of Joseph Engels was duly admitted to probate as a foreign will in the latter named county. Six days thereafter, objections were filed to the probate of this foreign will by Ben (Sebastian) Engels, Lizzie Wuddel, and Lena Geisler, setting out substantially the same objections as were made in the original probate in LaSalle County, Illinois, charging the mental incapacity of the testator and undue influence.
The widow, Mary Engels, both in the proceedings in Illinois and in Iowa, filed her election to take under the will. Later, on September 9, 1920, the administrator filed a petition in the Sioux County district court, setting up the fact of the filing of the instrument contesting the validity of the will, and asking that the court authorize the employment of counsel for the defense of said will. An order was issued, granting the prayer of this application, and counsel was employed, who, in pursuance of their employment, filed an answer to said contestants, and proceeded, at large expense and time, to prepare the case, among other things taking about ten depositions in the state of Illinois. The case was set for trial, but, on September 12, 1921, it was dismissed by contestants. Later, the administrator debonis non filed a report, asking the court to make special allowances to him for extra services in preparing the defense to said contest, and asking the allowance of fees for his attorneys. To this report four of the heirs filed objections. The matter was set down for hearing, and the court filed his opinion in said cause on February 17, 1923, and entered an order allowing the administrator $700, to cover all of his expenses and disbursements in relation to the contest, and allowing attorneys' fees in the sum of $1,500. This order further provided:
"That all the foregoing allowances and all costs to date in these proceedings are confirmed and established as valid claims against the said estate, and ordered paid by the administrator *Page 39
out of any funds that are now or may hereafter be in his hands available for said purpose."
From this order no appeal was ever taken.
Nothing further seems to have been done in the matter, and on the 27th day of January, 1928, the widow, Mary Engels, died. There was no personal property in this estate in Iowa, and there seem to have been no funds coming into the hands of the administrator prior to this date. On the death of the mother, the four children who were each to receive 80 acres of land in Iowa, in accordance with the terms of the will, each paid to the administrator the sum of $2,000, making a total of $8,000. Thereafter, on August 29, 1928, the administrator filed an intermediate report, showing receipts at that time from three of the heirs amounting to $6,000 (Mary having not made her payment of $2,000, but it was made before the final report). This report shows that the administrator paid out the $700 allowed to him by the former order, plus $232.40 interest; also paid to the attorneys the amount previously allowed, of $1,500, plus $498 interest; that he paid the attorneys' and administrator's fee for settling said estate, amounting in all to $560, an administrator's bond of $40, and court costs in the sum of $39.29, — leaving a balance on hand of $2,430.40.
The administrator filed his final report on October 18, 1928, reciting the receipt of $2,000 from Mary, making a total sum on hand of $4,430.35, and reciting that, under the terms of the will, Sebastian, Kate, and Lizzie are entitled to this amount, share and share alike, under the tenth item thereof; that he paid to each of said named parties under said item of the will, and attached their receipts to his report, each in the sum of $1,476.78.
Due notice of this final report was served on all parties, in pursuance of the order of court; whereupon Sebastian, Kate, and Lizzie, in due time, filed objections to such report, objecting to the allowance of interest on the $700 and the $1,500 items, and objecting to the payment of these items and interest as charges against their legacies, and saying that these two items should be charged against the shares of the other heirs of the estate. They further say that the other items contained in this final report, to wit, the attorneys' and administrator's fee, costs of the bond, and court costs, should also be paid by *Page 40
the other heirs of said estate, and no part of it should be paid by them, or any of them.
These objections to the final report were tried out, and on the 14th day of November, 1928, the court entered an order that the $700 item, plus interest, and the $1,500 item, plus interest, were disallowed as items and charges against the legacies of the three parties named in Item 10 of the will, and were not to be paid out of the $8,000 mentioned in said final report, and that the administrator should pay over the sum total thereof ($2,930.40) to the parties named in Item 10 of the will, share and share alike; that the other items, to wit, the statutory attorneys' and administrator's fee, cost of the bond, and court costs, were approved by the court to be paid out of the $8,000 fund in the hands of the administrator; and that the $2,930.40 ordered paid by the administrator should be paid on or before July 1, 1929, and in default of such payment, judgment should be entered against the administrator in favor of Sebastian Engels, Kate Zoller, and Lizzie Wuddel, and the said amount should be established as a lien against the tracts of land given to H.P. Engels, Mary Budde, Lena Geisler, and Anna Engels, one fourth thereof being made a lien on each 80-acre tract. Later, judgment was entered accordingly.
The administrator de bonis non, H.P. Engels, personally, Lena Geisler, Anna Engels, Mary Budde, and each of them, appeal, limiting their appeal, however, to the question of whether or not the $700 item, plus interest, and the $1,500 item, plus interest, are chargeable against them and their property.
Stripped, then, of all verbiage, the question we have before us is whether or not these items, amounting to $2,930.40, were properly chargeable personally against H.P. Engels, Mary Budde, Lena Geisler, and Anna Engels, and properly made a lien on the real property which they took under the terms of the will.
It cannot be gainsaid that the order entered by the court on the 17th day of February, 1923, fixing the amount of $700 in favor of the administrator for special services and the $1,500 allowed as attorney's fees were adjudged by the court to be valid claims against the estate, and ordered paid by the administrator out of any funds that "now or may hereafter be in his hands available for said purpose." This order, never *Page 41
having been appealed from, forecloses any investigation as to the validity of these two claims.
No serious contention or argument is made against the allowance of interest reported by the administrator on these two items, and therefore no further attention will be paid thereto.
Referring, for the moment, to the status of this matter in the Sioux County district court, it is to be noted that the will was duly admitted to probate, without contest or objection, and that, six days thereafter, the writing designated as "Objections to the Probate of the Will" was filed. The district court, in disposing of the matter when it was first before the court, treated this (whether rightfully or wrongfully, we do not now determine) as a proceeding to set aside the will, already duly probated; and to this action of the court's neither party objected, at the time, and while it was being so treated, the order on the first hearing was made. At most, therefore, we do not have the ordinary question of the allowance of expenses and attorney's fees in a contest on the question of whether or not a will shall be admitted to probate. We conceive, therefore, that the rule governing allowance of expenses and attorney's fees set down in the latter class of cases does not necessarily govern, where the action is to set aside a will already probated.
As heretofore shown, there was no personal property in the administration of this estate except the $8,000 paid in by the four named heirs who each received an 80-acre tract of land in Iowa. These 320 acres were all of the property, real or personal, within the Iowa jurisdiction. The court had already determined that these claims, amounting to a little over $2,930, were proper charges against the estate. The question then is, How shall this amount be paid?
It is apparent from the record heretofore set out that Sebastian, Kate, and Lizzie, each of whom was given a bequest of $4,000, instituted a contest in Illinois, and put the estate to an expense of over $5,000 in preparing to meet the same, and then voluntarily dismissed the proceedings. Later, Sebastian, Lizzie, and Lena instituted proceedings in Sioux County to set aside the will in this state, and in so doing, they put the estate to an expense of about $3,000; and when the matter was called for trial, they again dismissed the proceedings, and the expenses *Page 42
incurred by this abortive attempt to set aside the will are a part of the expenses involved in this transaction, as above explained.
The question then is whether or not the $2,930.40 involved herein is to be paid by the executor de bonis non from the $8,000 paid into his hands by the parties receiving the Iowa real estate. The executor so proposed to make the payment, by a recommendation in his final report. The district court refused to approve this, and ordered these charges placed against the parties who received the Iowa real estate, and made the same a lien on their respective shares. Was this error?
We held in Wilts v. Wilts, 151 Iowa 149, that all proper charges in an estate should be first paid out of the personal property, except special bequests; second, from real estate appropriated by the will for that purpose; third, from real estate descending; and fourth, from real estate specifically devised.
No one will question, under this will, that the share received by each of these children of the 80-acre tract of land, described by governmental subdivisions, as each was in the will, is a specific devise. That the bequest of $4,000 to each of the three heirs named in Item 10 of the will is a general legacy, and not a specific one, see In re Estate of Daniels, 192 Iowa 326;Leighton v. Leighton, 193 Iowa 1299; 28 Ruling Case Law 289, 291; 40 Cyc. 1869, 1870.
It would then follow, under the usual course of distribution of the assets of an estate under the Iowa rule and statutes, that the children each receiving $4,000 must stand the costs of administration, which include the item of $2,930.40. From this standpoint it is equally true that the final report filed by the administrator should have been approved in toto.
Appellees filed an amendment to appellants' abstract of record, setting out certain correspondence between the presiding judge and some of the attorneys in relation to this case. The same was not a part of the record, and should not have been abstracted. The motion to tax the costs thereof to the appellees is sustained. — Reversed.
MORLING, C.J., and STEVENS, De GRAFF, and WAGNER, JJ., concur. *Page 43
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Charles Johnson, who died intestate in May, *Page 18
1923, and John A. Peterson, who died testate April 24, 1925, were cousins, who came to this country when young men, and located in Des Moines County. Peterson took up his residence in Burlington, and Johnson upon a farm near that city. Both married, and reared families. The two men sustained close and intimate personal and social relations during all of the years preceding the death of Johnson, and their families frequently visited each other until 1906, when Mrs. Johnson died. Following this event, Johnson appears to have spent much more time at the Peterson home, receiving meals, lodging, and care, for which payment was neither demanded by Peterson nor tendered by Johnson.
Carl E. Johnson, appellee, was appointed administrator of the estate of his father, Charles J., June 12, 1923. On or about December 3, 1924, Peterson filed a claim against Johnson's estate for $1,700 for lodging, board, and care for 17 years. Before the claim was tried, Peterson died, and Emma C. Peterson, his surviving widow, was appointed executrix of his estate.
The pleadings filed, in addition to the claim of appellant, which, as therein stated, was for "lodging and care furnished the said decedent for the 17 years preceding his death, at $100 per year, — $1,700," consisted of the answer of appellee, which admitted that he was the duly and legally appointed administrator of the estate of Charles J. Johnson, and alleged that the claim filed against said estate was barred, under the provisions of Section 11972 of the Code of 1924, and the reply of appellant, setting up peculiar circumstances excusing the failure to file the claim within twelve months after due notice was published by the administrator of his appointment, and of facts and circumstances claimed to entitle her to equitable relief. Neither party in any way challenged the pleadings filed by the other, and the cause was tried to a jury upon the issue stated, the trial resulting in a verdict in favor of the defendant.
Misdirection of the jury in three important particulars presents the principal propositions relied upon for reversal. These propositions will be first given consideration.
I. Section 11890 of the Code of 1924 requires executors and administrators, within ten days after the receipt of letters of administration, to publish such notice of their appointment *Page 19
as the court or clerk may direct, which direction shall be indorsed on the letters when issued, and entered 1. EXECUTORS of record in the probate docket. One of the AND ADMINIS- principal contentions of appellant is that the TRATORS: notice required by the foregoing statute was not appointment: published, and that, if notices were posted, the notice: proof required by statute of such posting was proof of not made, or filed in the clerk's office. The service. court instructed the jury that the publication of the required notice was established by the undisputed evidence. Appellant maintains that this instruction is erroneous, and that the question should have been submitted to the jury. It appears from the evidence that due and proper instructions were indorsed by the clerk on the letters of administration, and entered of record on the probate docket; that the required number of blank notices were given to the administrator, and that all were posted, as required by the directions of the clerk, except appellant alleges that there was a failure to properly post a notice at the front door of the courthouse. The administrator admitted that he did not place a copy thereof in the case provided for that purpose and maintained near the front door of the courthouse, but testified that he posted the same by pinning or otherwise attaching it to the frame of the door of the case. Proof of posting was not filed until September 18, 1925. This was not in accordance with the statute, which requires that the same be filed within six months after publication. Section 11350, Code of 1924. Several witnesses testified to seeing notices posted in various places, but no one appears to have ever observed a notice at the front door of the courthouse. Except for this fact, the testimony of the administrator was practically undisputed. The court admitted the proof of posting filed September 18, 1925, in evidence over the objection of appellant. Error is assigned on this ruling. Whether it was admissible or not, we think it clear that its receipt was without prejudice. Parol evidence was admissible to prove that notices were posted, as directed. The return on the exhibit in question went no further than the oral testimony of the administrator. It is possible that the notice which the administrator claims was posted at the front door of the courthouse was not securely posted, and that it soon became displaced. The administrator testified that the door of the case was locked, and he could not *Page 20
get it open. A finding by the jury, if the question had been submitted, that proper notices were not posted, could not have been permitted to stand. The testimony of the administrator was disputed only by remote circumstances of little probative value. The sheriff and a deputy clerk testified that, although they frequently went in and out of the front entrance to the courthouse, they did not see the notice posted on the outside of the case. Those accustomed to seeing notices in the case might not have had their attention called to a notice attached to the outside, but they were likely not to have observed the notice at all, if it had been properly posted. We think the proof of the publication of notice is practically undisputed, and that the peremptory instruction was not erroneous.
II. It is provided by Section 11972 of the Code of 1924 that claims of the fourth class — that is, all claims filed more than six months after the publication or posting of 2. EXECUTORS notices by executors or administrators of their AND ADMINIS- appointment — will be barred in one year, TRATORS: unless peculiar circumstances are shown, claims: entitling the claimant to equitable relief. statute of Under the repeated holding of this court, limitation: equitable relief in such cases must be granted equitable by the court. In hearing and passing upon the avoidance peculiar circumstances, the court applies by court. equitable rules, and the relief granted is, in the language of the statute, equitable in its nature. McCormackv. Cook, 11 Iowa 267; Brewster v. Kendrick, 17 Iowa 479; Johnstonv. Johnston, 36 Iowa 608; Boyle v. Boyle, 126 Iowa 167; Schlutterv. Dahling, 100 Iowa 515; Roaf v. Knight, 77 Iowa 506; Bentley Olmsted v. Starr, 123 Iowa 657; Mosher v. Goodale, 129 Iowa 719;Lamm v. Sooy, 79 Iowa 593; Nichols v. Harsh, 202 Iowa 117.
The court, however, in this case submitted this issue to the jury. We have already called attention to the pleadings filed herein. No peculiar facts or circumstances entitling the claimant to equitable relief are alleged in the claim filed. The only reference thereto in any of the pleadings is in appellant's reply. The circumstances therein alleged are as follows:
"The said John A. Peterson was an invalid during the four years preceding his death, in May, 1925, and was unable to attend to business during the time of the running of the *Page 21
statute, and did not recover sufficiently to attend to such business until about the time the claim was filed."
After a jury had been impaneled, appellee objected to the introduction of any testimony, for the reason that the claim was not filed within the time required by statute; that no equitable circumstances were alleged in the pleadings; and that the claim was barred by the statute of limitations. The objection was overruled.
At the conclusion of plaintiff's case, the defendant moved the court, for a directed verdict, upon the grounds stated in the objection just referred to. This motion was overruled, was renewed at the dose of the testimony, and again overruled. Appellant did, however, at the conclusion of the 3. EXECUTORS evidence, move the court to withdraw from the AND ADMINIS- jury all questions concerning the bar of the TRATORS: statute of limitations for the reason that claims: notices had not been published as required by limitation the statute and the directions of the clerk. By of actions: an amendment to the answer, appellee also set up equitable the general statute of limitations. Appellant relief: introduced testimony tending to show that insufficient Peterson was ill for something like four years basis. preceding his death; that he was much weakened by disease; and that he was, to some extent at least, disqualified to do business. Appellee attempted to meet this testimony by showing that his illness had not seriously incapacitated him to attend to ordinary business. So far as the record shows, appellant at no time suggested to or asked the court to determine the facts and grant her equitable relief. The case was tried and submitted upon the theory that the issues as to the publication of notice and the circumstances excusing the delay in filing the claim were triable to the jury. We deem it not improper, in this connection, to say that, in our opinion, the showing made was insufficient to entitle claimant to equitable relief. The preponderance of the evidence is to the effect that, notwithstanding the illness of Peterson, he did transact business no more difficult than the preparation and filing of a claim after Johnson's death.
But it is further contended by counsel that, if the issue in question should have been submitted to the jury, then the instructions submitting same are erroneous. We shall not set them out. We have carefully examined and considered them *Page 22
in the light of the exceptions urged. Taken as a whole, they fairly submit the issue to the jury.
The court instructed the jury that it was claimant's duty to exercise ordinary care and diligence in filing the claim, and that, if the failure to file same was due to the want of ordinary diligence and attention, then the circumstances were not such as to excuse delay. The jury were, however, quite clearly informed that, if the failure to file the said claim within twelve months was due to peculiar conditions and circumstances sufficient to excuse the delay, the claim was not barred. The instruction could have been somewhat more definite at this point, but when the several paragraphs dealing with the subject are considered together, they are sufficiently specific, and the jury could not have been misled thereby.
III. The jury were instructed that the evidence without dispute showed that Johnson and Peterson were distant blood relatives; that, during the entire period of their 4. WORK AND acquaintance, and after they moved to SERVICES: Burlington, they maintained mutually friendly mutual and social relations of a cordial and intimate expecta- character; that they, with their families, tions: visited each other at frequent intervals, and presumption. that they otherwise manifested the close relationship between them; and that, because of these long intimate personal relations, the burden was upon appellant to show by a fair preponderance of the evidence that the services and accommodations rendered were rendered with the intention on the part of Peterson to receive and accept compensation therefor, and upon the part of Johnson to receive and pay therefor.
It is the contention of appellant that the instruction as to the burden of proof is erroneous; that the rule stated applies only to controversies between members of a family; that the services rendered by Peterson were valuable, and were accepted by Johnson; that the law, under such circumstances, implies an obligation to pay therefor; and that the burden of proof at this point was on the administrator, and not on the claimant.
The evidence shows that, after the death of his wife, Johnson was indeed a frequent visitor at the Peterson home, where he was treated kindly, receiving board, lodging, and other comforts. The visits of the Petersons to the Johnson home were less frequent after the death of Mrs. Johnson, but there was *Page 23
no abatement in the cordiality of their relationship. Peterson, apparently, never at any time requested Johnson to pay for the accommodations and services rendered. The evidence does tend, however, to show that Johnson, on one or more occasions, expressed his appreciation of the kindness shown him, and stated, in effect, that he intended sometime to make it right. The testimony of Mrs. Peterson on this point is as follows:
"I have heard Mr. Johnson talking with my father at various times, in which I took no part. He often told my father that he would like to come into our place and stay. It was a second home to him, and he says, `In time, John, if you live after I do, I will see that you are well paid for what you have done for me.' And he also said, `I never come in here but what I am welcome.' He also told my father, `Well, John, now I have got it fixed just the way I want it.' My father asked him what he meant, and he says, `Well, I have got it fixed now, if you live after I do, you will get a pension then.' My father says, `If you do that, it will be the first time anybody has given me any money.'"
No books were kept by either party, and none of the witnesses for appellant were able to state the number of weeks Johnson spent at the Peterson home in any one year during the long period covered by the claim. The estimates given by them were based upon recollection only, and could not have been, at best, more than approximately correct. Nevertheless, the law is well settled in this state that, where one renders valuable services to another who accepts the same, and who is not a member of the same family, an obligation to pay therefor will be implied. If the services are rendered by a member of the family, the opposite rule applies, and the presumption arises that the services were gratuitous. Harlan v. Emery, 46 Iowa 538; Wence v. Wykoff,52 Iowa 644; Graham v. McKinney, 147 Iowa 164; In re Estate ofPauly, 174 Iowa 122; Snyder v. Nixon, 188 Iowa 779; In re Estateof Frederickson, 191 Iowa 315; Snyder v. Guthrie, 193 Iowa 624;Herrick v. Hayes (Iowa), 173 N.W. 110 (not officially reported); 2 Elliott on Contracts, Section 1363 et seq. It follows that the court erroneously placed the burden upon the appellant to establish a contract. It is, of course, proper under such circumstances for the defendant to plead and prove the relationship of the parties and all the *Page 24
facts pertaining to the transaction, by way of defense. Frequently, the presumption may be easily overcome, but the burden is as we have stated. The Iowa authorities cited by counsel for appellee, as follows, do not conflict with this rule:Danes v. Slitor, 118 Iowa 81; Tank v. Rohweder, 98 Iowa 154;Allen v. Bryson, 67 Iowa 591; Scully v. Scully's Executor,28 Iowa 548; Smith v. Johnson, 45 Iowa 308; Rogers v. Millard,44 Iowa 466; Harper v. Kissick, 52 Iowa 733; McGarvy v. Roods,73 Iowa 363; Seddon v. Richardson, 200 Iowa 763; 1 Jones Commentaries on Evidence (1913) 277.
IV. Appellee, as stated, pleaded that the claim filed was barred by the statute of limitations. The court instructed the jury on this point that, if the evidence showed 5. WORK AND that the alleged services were continuous from SERVICES: year to year, without interruption, the account continuous should be treated as current and open, but that, current if the proof was insufficient as to any item or account: in- items of the claim, so as to interrupt the terruption: continuity of the account from year to year, the instruc- interruption would be a bar to the allowance of tions. any part of the claim accruing prior thereto, provided the same related to a time more than five years prior to the filing thereof.
It is argued by counsel that the foregoing instruction should not have been given, as there was no evidence of any interruption of the services. There was no direct evidence of any interruption in the rendition of services, but the account was established by evidence more or less uncertain and indefinite. The giving of the instruction was not, we think, erroneous; but, in view of the conclusion reached by the jury, it could not well have been prejudicial, if it were erroneous. The deputy clerk of the district court was permitted, over the objections of the appellant, to testify to the custom of that office to make out notices for executors or administrators to post, and to direct them to post some of them in the township in which the person died, together with one at the door of the courthouse, and to make prompt return of such posting. It may be conceded that the custom of the clerk's office in this particular was immaterial. The admission of the evidence, however, was without prejudice, as the preparation and delivery of notices and the *Page 25
posting thereof in this case were clearly established by direct proof.
We have not discussed every point made by counsel, nor have we specifically referred to each particular in which error in the instruction is suggested. We have, however, noted and given careful consideration thereto. For the error pointed out, the judgment is reversed. — Reversed.
EVANS, C.J., and FAVILLE and VERMILION, JJ., concur.
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The accident or collision out of which the injury and consequent damages arose in this case occurred in *Page 726
this wise: The plaintiff was proceeding in a northerly or northeasterly direction along paved highway No. 149, traveling on the right side or half of the pavement. The road at this point is level. The sky was partly cloudy, but it was a fairly clear day. It was 11 o'clock a.m. The accident occurred about one mile southwest of the town of North English, Iowa. When plaintiff first observed defendant's car, he was about one-eighth of a mile ahead of her, his car headed in the same general direction that she was traveling, and, as she supposed, traveling in the same direction. As a matter of fact, he had lost his radiator cap and was slowly backing on the right-hand half of the pavement toward plaintiff's car in an effort to find the lost radiator cap. Plaintiff did not see him stop his car or reverse his speed or change his course or direction of travel, and proceeded to travel directly behind him, slowly gaining on him.
The road was straight at the point of the collision, and plaintiff testified that she could not tell until she turned out to go around him that he was backing; that as soon as she turned out to pass his car she got the angle of the car and saw that he was backing, and that she tried to get out of the way, to get over to the left as far as she could; that she was pretty much over the black line when the collision occurred; that she knew defendant's car was there in front of her and that she was gaining on him all the time; that when she was close enough to turn out and go around that she turned out, just as she always did, in plenty of time, that she never took chances; that she would not say how close she was to defendant's car when she began to turn, but in her best judgment she was four or five car lengths back. She had time to pull left far enough so that his left back wheel struck her right front wheel and fender, jamming the running board back into the back right tire and toward the car. One witness said: "It looked like the running board had been jammed straight back and in toward the car." Plaintiff gave her version of how it happened, but the physical facts show that as she pulled to the left, the two cars going in opposite directions, the gap between them closed, not quite, but almost instantly. The estimated speed was 25 miles per hour for her car, and 15 for his. The defendant gave no signal or warning and displayed no red light. At the close of the plaintiff's evidence the court sustained a motion to direct a verdict for the defendant, and plaintiff appeals. *Page 727
That the defendant was negligent on his part is not seriously questioned, the only matter argued being the question of plaintiff's freedom from contributory negligence; it being the contention of defendant that plaintiff violated the clear distance ahead statute, that she was driving at an excessive rate of speed under the circumstances surrounding her immediately before the accident; that she failed to keep a proper lookout and either did see, or could have seen, the defendant's car in time to turn out and avoid the collision, and that she violated the last clear chance doctrine. It will thus be seen that we have here an anomalous situation.
The only word we have from the defendant's lips is: "I was backing, looking for my radiator cap and did not see you." There was no red light or other signal or device to indicate that the car was stopped or backing, nothing, except, of course, the movements of the car. He seemed utterly oblivious of the fact that the world has moved out of and beyond the "horse and buggy days" and that there were other inhabitants on the globe who might want to use that highway, and that at that moment one of them might be coming along, not at 25, but at 60 or 70 miles an hour, right behind him.
In passing upon this question it is necessary that we put upon plaintiff's version of this matter the most favorable interpretation of which it is reasonably susceptible. This is the rule. Holderman, Adm'x. v. Witmer, 166 Iowa 406, 409, 147 N.W. 926, 928. If we do this, we are compelled to find that she did not observe that this car had stopped, changed to reverse gear, and was moving backward, until she had turned out to go around it. She was then too close to get out of the way of a car on the move in reverse, but in plenty of time to pass a car moving forward slowly, or one that had stopped. It therefore resolves itself into this: Was she bound to see what could have been seen if she were looking, namely, the movements of the car ahead of her, and, having seen, was she bound at her peril to dodge the same and avoid the collision? This court said in the case of Smith v. Spirek, 196 Iowa 1328, 1333, 195 N.W. 736, 739:
"When the defendant saw, or with reasonable diligence could have seen, the decedent in time to so operate his car to avoid the accident, it became his duty to so act. * * * The driver *Page 728
had ample space to pass the decedent on the highway so as to avoid striking him."
There an individual who was riding on the running board of the car ahead of the defendant's car suddenly stepped off into the path of the approaching car of the defendant and was struck.
We held in the case of Holderman, Adm'x. v. Witmer, supra, a case where a pedestrian was struck by an automobile at a street crossing and the driver claimed that he did not see him until the moment he struck him, that:
"The duty to look implied the duty to see what was in plain view, unless some reasonable explanation is presented for a failure to see. The reasonableness of such an explanation is clearly a question for the jury."
The trial court directed a verdict in favor of the defendant which this court reversed. The concluding paragraph in the opinion is:
"It is sufficient to say briefly that, the evidence being sufficient to go to the jury on the question of Larson's [the driver of the car] negligence, and no conclusive contributory negligence being disclosed, the case was clearly for the jury."
What would be the reaction of an ordinary person under the same or similar circumstances? This was an unusual situation. The truth of this is self-evident. Among the hundreds of accident and damage suits arising out of automobile collisions, counsel on neither side of this case has been able to produce a parallel case. We have here a motor vehicle headed in one direction being propelled in the opposite direction. How far he had traveled or where he came from is not revealed by the record. It is the law of the road that, when vehicles approaching each other meet, they are required to pass to the right. Section 5020, Code 1931. No doubt the legislature had in mind vehicles being propelled in the regular and ordinary course of travel. Another statute, section 5032, Code 1931, provides:
"The operator of a motor vehicle shall, before stopping, turning, or changing the course of such vehicle, first see that there is sufficient space to make such movement in safety and shall give a visible or audible signal to the crossing officer, if there be such, or to the drivers of vehicles following, of his *Page 729
intention to make such a movement, by raising and extending the hand or by a proper signal or device indicating with it the direction in which he wishes to turn."
Both cars were over on the right-hand side of the black line on the pavement. The plaintiff was where she had a right to be. As this car backed toward her, what was her duty, acting as an ordinary prudent person under the circumstances? Must she turn to the right? There was no evidence to show that there was room for her to turn to the right. Should she turn to the left? How was she to know that at the last minute the defendant would not decide that it was his duty to obey the mandates of section 5020 and turn to the right? Should she stop? That would not avoid the accident. He was coming toward her and did not see her. If the defendant's car had been standing still and the accident had happened as it did, under the rule of Albrecht v. Waterloo Const. Co., 218 Iowa 1205, 257 N.W. 183, and cases therein cited, the plaintiff would have been guilty of negligence in not turning to the left and avoiding the collision. In the Albrecht case, the driver of the car saw the truck standing on the paving when he was 150 feet away, but did not observe until he was within 25 feet of the truck that it was not moving forward. Here the plaintiff did not observe that the car was not moving forward and did not observe that it was moving backwards until she was so close to the rear end of it that she was unable to pull out and avoid the collision. Must we carry the rule laid down in the Albrecht case to the extent that she was bound as a matter of law to see at her peril that this car was moving in reverse?
We held in Luther v. Jones, 220 Iowa 95, 261 N.W. 817, where a truck ran into a slowly moving car ahead of it, and it was the claim of the owner of the truck that the cause of the injury was the sudden slowing down of the car ahead of him, that this presented a jury question. In that case the car ahead was compelled to slow down as it approached a street crossing, and other cars coming from the opposite direction prevented him from passing a car immediately in front of him. We held there that the driver of the truck in the rear was bound to take notice of this situation and to govern his speed accordingly.
If there is no specific law of the road covering this particular case, the rules of the common law apply, and each person *Page 730
must use reasonable care to avoid a collision such as the place and circumstances require. Smith v. Spirek, supra. Plaintiff had a right to assume that before the defendant would undertake to change the course of his car and go in the opposite direction from that in which he was headed, he would at least, by some signal required by statute, indicate that he was changing his direction. This he failed to do. There was nothing to put her on her guard, except the movement of the car itself. If she is required, as a matter of law, to see what was plainly apparent, that he was moving backward, how would the failure to give a warning signal avail her anything? As a matter of law, was plaintiff required, under the doctrine of the last clear chance, acting as an ordinary, reasonable, and prudent person, under the circumstances, to discover the peril of the defendant, namely, that he was backing without seeing her, and was she required to so discover his peril in time to avoid the accident? There is the element of uncertainty as to what the defendant might do, even though the plaintiff be required to see that he was backing. Faced with this unusual situation, was plaintiff, as a matter of law, required to so operate her car as to avoid the collision?
It is a close question, we admit, under our prior holdings. But this case presents a little different situation, and we are inclined to think that it was a matter for the determination of a jury. We find no case, where the facts are similar, holding to the contrary and the appellant has cited us to none. The unusual situation of one going in the opposite direction to that in which one from the rear would naturally suppose him to be traveling, coupled with the slow backward movement of his car, together with the fair and reasonable assumption to be indulged in that plaintiff had a right to assume that he would be operating his car in a reasonable and lawful manner upon the highway, and that before changing his course he would by some method give warning and continue to do so as he proceeded traveling in reverse movement, together with all the other facts and circumstances surrounding the case, presents, as we think, a jury question.
Therefore, it necessarily follows that the judgment of the trial court must be, and it is hereby, reversed. — Reversed.
KINTZINGER, C.J., and DONEGAN, ALBERT, PARSONS, ANDERSON, POWERS, MITCHELL, and RICHARDS, JJ., concur. *Page 731
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In his petition plaintiff stated his cause of action substantially as follows: That in April, 1931, he entered the employ of defendant town in the capacity of marshal; that the ordinances of the town provided that the marshal should receive as compensation $50 per month and the fees of the office; that contrary to such ordinances defendant town failed and refused to pay plaintiff the full amount of such monthly salary and instead of paying plaintiff $50 has paid him the sum of only $27.50 per month; that there is due and owing plaintiff as unpaid salary the sum of $1,597.50; that no part of said $1,597.50 has been paid; for that amount the judgment was demanded. At the close of the testimony each party filed a motion for a directed verdict. In ruling on the two motions the court made a finding that, during the first four months of the five years of his *Page 1013
employment, plaintiff did not receive the full $60 per month that had been fixed by the town as his monthly compensation for serving in the dual capacities of marshal and water commissioner, the shortage being the sum of $45 for which amount with interest judgment was rendered in favor of plaintiff. Subject to such finding and judgment, plaintiff's motion was overruled and defendant's was sustained. Plaintiff has appealed.
Although plaintiff alleged that $1,597.50 of his salary had not been paid, it is undisputed that in each of the five successive annual contracts of employment plaintiff's compensation was fixed at $60 per month (for one or two years at $55 per month), this being the full monthly compensation for plaintiff's services in the two capacities of marshal and water commissioner. Excepting the $45, plaintiff has been paid by the town the full $60 or $55 of every month's agreed compensation during the five years that he served the town as such marshal and water commissioner. So the truth is that plaintiff received all of the $1,597.50, or whatever the amount may be that he claims, in full conformity with his contracts of employment, excepting the $45. Plaintiff says that nevertheless he has not been paid. This assertion he attempts to support by advancing a theory that he is entitled to recover as a result of an inferred or implied contract made by the town, other than and different from the contracts made annually when he was appointed and employed by the town for the ensuing year. That is, because at the end of each month the town issued to plaintiff two warrants, one on the general fund and one on the waterworks fund, the two warrants aggregating the monthly compensation of $60 or $55 as the case might be, and because the warrants on the general fund were usually for a less amount than $50, plaintiff says the town thereby interpreted the contracts of employment as fixing the monthly compensation of plaintiff as marshal at something less than the $50 per month salary fixed by the town ordinance, namely, at the varying amounts of the general warrants. Plaintiff says that such interpretation by the town changed the initial contracts that contemplated $50 per month as being the marshal's salary, and reduced such salary each month to the amount of the general warrant plaintiff received at the end of that month. Plaintiff says that such new contract created by such interpretation by the town of the original contracts was unlawful, being in contravention of section 5672, Code 1931. *Page 1014
Because such reduction in salary by the new contract was unlawful plaintiff claims that in this action he is entitled to recover an alleged balance of each month's salary. He claims this balance is the summation of the difference in amount between each general warrant and $50.
Without discussing whether it is competent for the purpose, the only evidence offered by plaintiff to support the proposition that the town interpreted the contracts in the manner mentioned is found in the varying amounts of the general warrants, these amounts being usually less than $50. From that fact it is quite obvious that the town council was handling their funds in a manner frowned upon by our statutes. But it does not appeal to us that solely from these acts of the council there is to be inferred anything more of intent or purpose than that they would overdraw the waterworks fund. Upon the record before us it is more reasonable to infer that the overdrawing of this fund was in fact a recognition of the then subsisting contracts of employment of plaintiff, and merely an expedient adopted to meet the obligations arising therefrom, than it would be to adopt plaintiff's theory that repudiation of the contracts was intended or should be inferred.
It may further be said that when annually plaintiff was appointed and employed he was bound to take notice of the limitations of power of the town's officers and to take notice that the town's ordinance fixed at $50 per month the compensation of marshal, one of the offices for which he was to receive the aggregate sum of $60 or $55 per month. King v. City of Eldora,220 Iowa 568, 261 N.W. 602. Nor does plaintiff in argument question, but in fact affirms, that the provisions of this ordinance were part of each of the initial appointments and contracts of employment, and fixed the marshal's salary at $50 per month. With respect to these annual contracts it must be held that they remained effective, and continued to determine the amount of the marshal's salary, regardless of what the council attempted to do, because it was beyond the powers of the council to make any change with respect thereto during the respective terms of office. Section 5672, Code 1931; Ryce v. Osage, 88 Iowa 558,55 N.W. 532. No contract possessing any validity appearing, excepting those of the annual employments, it must be held that it was the terms of these annual contracts, which established that $50 of each month's pay constituted marshal's *Page 1015
salary, that were being carried out and satisfied each month by the $60 or $55 payments. The plaintiff has shown no right to recover by reason of any other contract that has any semblance of validity. There is an affirmance. — Affirmed.
STIGER, C.J., and MITCHELL, SAGER, ANDERSON, HAMILTON, KINTZINGER, and DONEGAN, JJ., concur.
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The collision which resulted in serious injuries to appellee occurred about 6:30 p.m. on the evening of December 19, 1930, a short distance west of Dewitt on the Lincoln highway. Appellee was riding with four companions in a Pontiac sedan driven by Edmund M. Turner. The party was preceded a short distance by another car occupied by two members of the same party. They were all on their way to Cedar Rapids to attend a Christmas party given by the Iowa Mutual Liability Insurance Company located in that city, of which they were employees. At a point a short distance west of Dewitt and near a bridge on the highway a passenger bus traveling eastward and belonging to appellant, driven by one Harold B. Workman, collided with the Pontiac sedan, killing the driver, his wife, and one other occupant of the car and seriously injuring appellee. The bus was proceeding on one of its regular trips from Cedar Rapids eastward. The bridge adjacent to which the collision occurred is eighteen feet in width with a cement floor and a steel span eighty feet in length. Adjoining the bridge on the east and for a considerable distance there is a railing on either side of the eighteen-foot paving. Shortly preceding the accident a snow or sleet storm had caused the pavement to be covered with snow or ice. The traffic, however, had worn this covering away in the center of the pavement.
It is alleged in the petition that the driver of the bus failed to yield one-half of the traveled portion of the highway to the driver of the sedan and that he failed to operate the bus at a careful and prudent rate of speed with due regard to the traffic, condition of the surface, and width of the highway.
The foregoing issues of negligence were alleged and submitted to the jury. The evidence is in conflict as to the exact position of the bus on the highway at the time of the accident and as to the *Page 645
cause thereof. We shall later refer in greater detail to the testimony relating to the collision.
[1] The answer of appellant is in two counts — count one consisting of a general denial, together with admissions of certain material facts. In count two appellant set up a complete defense based upon the Workmen's Compensation Laws of the state of Illinois (Smith-Hurd Rev. St. Ill. 1931, c. 48, sections 138-172).
Appellee resided in Chicago and was an employee of the Iowa Mutual Liability Insurance Company in that city. Prior to the commencement of this action, she was paid the compensation allowed, under the laws of Illinois, by her employer, for the injuries involved herein. It appears from the allegations of count two of appellant's answer that, under the law of Illinois, where an injury is inflicted under circumstances creating a legal liability against a third party, who is also under the Workmen's Compensation Law of that state, upon payment of the compensation thus allowed, the employer becomes subrogated to the rights of the employee and may maintain an action against such third party to recover the amount paid as compensation to the employee. A demurrer to count two of the answer was interposed by appellee and sustained by the court. Appellant thereupon elected to stand on its pleading and refused to plead over.
There is no dispute between counsel as to the law of Illinois. It is conceded by counsel for appellee that, if the compensation statutes of Illinois are applicable to the facts of this case, then the action is not prosecuted in the name of the real party in interest and the demurrer should have been overruled.
It is further alleged in count two of the answer that appellant is an Iowa corporation having its principal place of business in the city of Cedar Rapids and that the driver of the bus is a resident of Iowa and employed under a contract made in this state. It is also alleged by appellant that it operates motor buses between Cedar Rapids and Moline, Illinois, and that it has certain employees in the latter state who reside therein. The statute of Illinois is apparently without ambiguity and, under the decisions of that state, subrogation results in favor of the employer only if the injuries were caused by a third party who is also operating under the law of Illinois. Goldsmith v. Payne,300 Ill. 119, 133 N.E. 52. That is to say, the employer, employee, and the third party causing the injuries must all be under the Workmen's Compensation Law of the *Page 646
state of Illinois. Appellant, as stated, is an Iowa corporation having its principal place of business at Cedar Rapids. The employment of the driver of the bus who resided herein was in this state. The sole hypothesis upon which appellant bases its contention that it was at the time of the accident operating under the Workmen's Compensation Law of the state of Illinois is that its operation extends into that state where it has certain employees who reside and perform their services therein. The statutes of the state of Illinois will not, by the courts of this state, be given extraterritorial effect. We know of no rule of comity or principle of law which requires the courts of one state, under the circumstances of this case, as alleged in count two of appellant's answer, to give application or effect to the law of a sister state. The rights of the parties are, in such case, governed by the law of this state where the accident occurred. Redfern v. Redfern, 212 Iowa 454, 236 N.W. 399; Brewster v. C. N.W. Ry. Co., 114 Iowa 144, 86 N.W. 221, 89 Am. St. Rep. 348; Hyde v. St. L. P. Railway Co., 61 Iowa 441,16 N.W. 351, 47 Am. Rep. 820; Chicago, R.I. P. Ry. Co. v. Lundquist, 206 Iowa 499, 221 N.W. 228; Podgorski v. Kerwin,144 Minn. 313, 175 N.W. 694.
The relations of appellant and its employees in this state, so far as the Workmen's Compensation Law may be involved, are under the laws thereof.
This case differs materially from the facts involved in Bradford Electric Light Co. v. Clapper, 286 U.S. 145,52 S. Ct. 571, 76 L. Ed. 1026. That was an action brought in New Hampshire by a resident of Vermont to recover damages on account of the death of an employee of the electric light company, also a resident of Vermont. The statute of Vermont by its terms, was specifically made applicable to any injury received by an employee within or without that state. The Supreme Court of the United States held that the plaintiff could not recover damages under the common law against the defendant in the courts of New Hampshire for the reason that the statute under which the deceased was employed was, as already stated, by its terms made applicable to injuries received by an employee without, as well as within, the state of Vermont. The court further held that this conclusion did not give extraterritorial effect to the statute. The ultimate principle of the Bradford case was recognized by this court in Pierce v. Bekins Van Storage Co., 185 Iowa 1346,172 N.W. 191. *Page 647
Clearly, the appellant, at the time of the collision was not operating its line under the laws of Illinois and subrogation did not result from the payment of compensation.
[2] II. Some of the witnesses for appellee who testified concerning the movement of the bus immediately preceding the collision were permitted, over the objections of appellant, to state that the bus seemed to be over the black line to the north; that, in the mind of the witness, it was, in fact, too far north, and other similar testimony. Motions to strike the testimony upon the ground that it constituted the mere opinions of the witnesses rather than the statement of facts were overruled. The witnesses were occupants of the Pontiac sedan and were observing the bus as it approached. The bus was lighted and displayed bright headlights. It is true that the language of the witnesses partook somewhat of the nature of conclusions but they were such as a witness is permitted, under such circumstances, to express. Zellmer v. McTaigue, 170 Iowa 534, 153 N.W. 77; Albaugh v. Shrope, 197 Iowa 844, 196 N.W. 743. The testimony was admissible, its weight and value being for the jury.
One of the witnesses answered that she was certain in her own mind that the left wheels of the bus were north of the black line in the pavement. She was, however, uncertain, and, on cross-examination, said she would not swear to it. It is obvious that from the observation of the witness the bus appeared to be over the line, but she was not entirely sure that it was. The weight of this evidence was for the jury. The objections were properly overruled. Other assignments relating to the admission of testimony are without merit and need not be given independent discussion.
[3] III. It is strenuously contended by appellant that its motion for a directed verdict made at the close of the evidence should have been sustained upon the ground that the evidence was wholly insufficient to establish causal connection between the alleged wrongful or negligent acts of the appellant and the injuries complained of. At least one witness testified definitely that the left wheels of the bus, as already stated, were at least one foot north of the black line in the center of the pavement.
Appellee's witnesses testified that the bus was traveling at a high rate of speed, that is at forty or forty-five miles per hour. The bus was behind schedule. It appears without dispute in the evidence that the outer edges of the pavement were covered to some extent at least by snow or ice. The car in which appellee was riding approached *Page 648
the bus from the east. It is not claimed that it was not being driven on the right side of the black line. The jury may well have found that the speed of the Pontiac did not exceed thirty or thirty-five miles per hour. The driver of the Pontiac who, as stated, lost his life in the collision could not have turned to the right for the purpose of avoiding a collision with the bus. The space between the railing on each side of the pavement was only eighteen feet. Apparently realizing that a collision was imminent between the sedan and the bus, the driver of the former, according to the testimony of some of the witnesses put on the brakes and turned as far as possible to the right. The sedan apparently suddenly slid across the pavement directly in front of the bus. The direct testimony does not disclose just how the collision occurred. At any rate the sedan was caught and carried by the bus a considerable distance east of the point of collision. The jury might well have found from the evidence that the bus was hugging closely to the center of the pavement where the ice and snow had been worn away and that the driver did not yield one-half of the road for the use of the approaching sedan. There is evidence to the effect that the bus, when stopped, was on the south side of the pavement and in its proper place upon the highway. Circumstances also were shown which tended to negative the grounds of negligence alleged in the petition and submitted to the jury. It is also argued that certain physical facts show conclusively that the witnesses for appellee were at fault in their testimony. A careful reading of the record, however, discloses such conflict in the evidence as to present proper issues of fact for the jury. It cannot be said that the evidence was in equipoise or that appellee wholly failed to make out a case by the greater weight of the evidence.
[4] IV. Exception was taken to certain remarks of counsel for appellee in the closing argument to the jury. Appellant, in the absence of the jury, moved that the panel be discharged and for a continuance of the case. The reference in the argument of counsel to the corporate capacity of appellant was manifestly improper. It was not repeated or persisted in after the attention of the court had been called to it. The objection on behalf of appellant was sustained by the court and the jury immediately instructed to give no heed or consideration to the statements complained of. It is scarcely possible to believe that the jury following the prompt objection of counsel, the admonition and instructions of the court, could have *Page 649
been prejudiced by the remarks of counsel. The judgment should not be reversed upon the ground here urged.
[5] V. It is also urged that the verdict, which was for $12,000, was so excessive as to evidence passion and prejudice on the part of the jury. The verdict is large but the injuries received and the suffering of appellee were very great. The bones of one leg, which were broken, did not heal promptly and a long siege in hospitals and treatment by physicians resulted. At the time the testimony of her physician was taken, appellee's injuries, to some extent, persisted. There was great impairment of the motion of her leg. Her face was cut and scarred and she received a severe injury to her tongue. She has recovered from the latter injury. The extent to which she will suffer pain and inconvenience in the future cannot be determined. It is true that the slow process of healing was due in some measure to a tubercular condition which, according to the testimony of the physician, existed at the time of the accident. Notwithstanding the size of the verdict, we cannot, in the light of the injuries received, properly hold that the verdict is the result of passion and prejudice.
We find no reversible error in the record and the judgment is accordingly affirmed. — Affirmed.
KINDIG, C.J., and MITCHELL, ANDERSON, and KINTZINGER, JJ., concur.
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On March 19, 1942, defendant Benedict was indicted for child desertion, the court ordered a bench warrant issued for his arrest, and fixed his bail at $1,000. On November 9, 1942, the sheriff arrested defendant, he appeared with his attorney, waived arraignment, pleaded guilty, and asked for immediate sentence. On the same day he changed his plea of guilty to not guilty. On the next day a bail bond was filed, signed by Benedict and appellant Daisy E. Johnson as surety.
On November 18, 1942, the case was reached for trial; a jury was present and ready to hear it. Benedict's attorney was present and stated he was unable to locate his client. "I don't feel that he has informed me properly of his whereabouts." The attorney asked leave to withdraw his appearance but the court denied such leave. Defendant was duly called in open court but failed to appear. His failure to appear was entered of record, his bail was ordered forfeited, and the sheriff was directed to give notice to Benedict and appellant to appear and show cause why judgment should not be entered for the amount of the bail.
As originally announced by the court in the presence of Benedict's attorney, the show-cause hearing was set for December 4, 1942. Apparently, however, the required notices were not given in time for that date and on March 17, 1943, a new order was made for notice to defendant and appellant of a hearing to be had on April 12, 1943, to show cause why judgment should not be entered for the amount of the bail. This notice was given but neither defendant nor appellant appeared and judgment was entered against them for the $1,000.
On June 11, 1943, the sixtieth day after the entry of judgment, appellant filed her motion to set aside the judgment on *Page 1180
the ground that Benedict had been in the armed forces of the United States since May 11, 1943. The motion quotes section 103 (3), United States Soldiers' and Sailors' Civil Relief Act of 1940, as amended October 6, 1942 [56 Stat. at L., chapter 581] (section 513 (3), 50 U.S.C. Appendix). This motion was amended on September 8, 1943, to state that appellant made diligent search for Benedict immediately after the trial was set in November 1942, but did not succeed in locating him till May 17, 1943; thereafter appellant caused Benedict to allocate some of his pay to the support of the children for whose desertion he was indicted; appellant offers to produce defendant upon his discharge from the Army or on leave, to stand trial, within a reasonable time; appellant has paid the costs incurred since defendant's release on bond.
On October 20, 1943, hearing was had on appellant's motion to set aside the judgment. Benedict was not present. Appellant's husband, the only witness, testified that he first knew in November 1942 that defendant had not appeared for trial; defendant worked with a construction crew; numerous efforts to locate him proved unavailing until after he had been inducted into the Army on May 11, 1943. Appellant's motion to set aside the judgment was overruled. The lower court found there was no adequate explanation for defendant's failure to appear for trial and for the lack of knowledge of his whereabouts from November 1942 until May 1943. The court concluded that section 103 (3) of the Soldiers' and Sailors' Relief Act did not entitle appellant to relief because defendant was not inducted into the service until nearly six months after the forfeiture of the bond and one month after the entry of judgment. The appeal is from this ruling.
The Iowa statutes here involved are sections 13631 to 13636, chapter 631, Code, 1939. Insofar as applicable, they provide:
"13631 Entry. If the defendant fails to appear for arraignment, trial, or judgment, or at any other time when his personal appearance in court is lawfully required * * * the court must at once direct an entry of such failure to be made of record, and the undertaking of his bail * * * is thereupon forfeited. *Page 1181
"13632 Notice to show cause. As a part of the entry of forfeiture * * * the court shall direct the sheriff of the county to give ten days notice in writing, or otherwise * * * to the defendant and his sureties to appear and show cause, if any, why judgment should not be entered for the amount of such bail * * *.
"13633 Judgment. If the defendant and his sureties fail to appear, judgment shall be entered by the court. * * * The judgment * * * shall have the same force and effect as any other judgment of such court. * * *
"13636 Judgment set aside. Such judgment shall never be set aside unless, within sixty days from the date thereof, the defendant shall voluntarily surrender himself to the sheriff of the county, or his bondsmen shall, at their own expense, deliver him to the custody of the sheriff within said time, whereupon the court may, upon application, set aside the judgment * * *."
Appellant seeks to have the judgment set aside under the terms of section 13636. She contends here that she is entitled to a reversal because of section 103 (3) of the Soldiers' and Sailors' Civil Relief Act, which provides:
"Whenever, by reason of the military service of a principal upon a criminal bail bond the sureties upon such bond are prevented from enforcing the attendance of their principal and performing their obligation the court shall not enforce the provisions of such bond during the military service of the principal thereon and may in accordance with principles of equity and justice either during or after such service discharge such sureties and exonerate the bail."
Appellant places no reliance upon any other provision of the Relief Act.
The question presented is whether by reason of Benedict's military service appellant was prevented from enforcing his attendance and performing her obligation. The "obligation" to which the Relief Act refers seems plainly to be the sureties' obligation under the bond. No other meaning of this term is suggested.
The bond signed by appellant is in substantially the form set out in section 13616, Code, 1939. In the bond the obligors *Page 1182
"hereby undertake that the said defendant shall appear in said Court and answer said indictment, and abide the orders and judgments of said Court, and not depart without leave of same; or if said defendant fail to perform either of these conditions we will pay to the State of Iowa the sum of $1,000.00."
Appellant's obligation under this bond was that defendant should appear in court and answer the indictment, abide the orders and judgments of the court, and not depart without its leave. "* * * the purpose of a bail bond is to secure the presence of the one charged in court, when his presence is required, in order to answer to the charge for which the bond is given." State v. Clark, 234 Iowa 338, 341, 11 N.W.2d 722, 724.
"The very essence of the obligation assumed by the sureties upon a bail bond is that they will produce the accused in open court, in accordance with the terms of the bond * * *." State v. Hamilton, 196 Iowa 998, 1002, 192 N.W. 838, 839.
See, also, State v. Arioso, 207 Iowa 1109, 1113, 224 N.W. 56; State v. Clark, supra.
Benedict was not inducted into the military service until almost six months after he was required by his bond to appear for trial. When he failed to appear for trial there was a breach of his bond, it was forfeited, and appellant's liability was then fixed. State v. Kraner, 50 Iowa 575, 577; State v. Scott, 20 Iowa 63, 66; 6 Am. Jur. 116, section 175; 8 C.J.S. 169, section 85. Benedict's subsequent military service in no way prevented appellant from performing the obligation under her bond to have defendant in court at the time of trial. That service did not commence till after a judgment was entered which had "the same force and effect as any other judgment of such court." Code section 13633. See, also, State v. Baldwin, 78 Iowa 737, 36 N.W. 908; State v. Bryant, 55 Iowa 451, 8 N.W. 303. The conclusion is thus unavoidable that section 103 (3) of the Relief Act does not entitle appellant to a reversal.
The most that can be claimed is that defendant's military service prevented appellant from delivering him to the custody of the sheriff as a condition to relief which might be granted in the discretion of the court, under section 13636. The showing that appellant was prevented even from so doing is far from satisfactory. The only evidence on the question is that a few *Page 1183
days after defendant was inducted on May 11, 1943, appellant's husband had this telephone conversation with one in charge of a hospital, presumably an Army hospital, in Colorado: "He told me that the defendant was a patient at the Hospital there. I asked him whether or not I could obtain his release, and he said `No, not as long as he was a patient there.'" It is not shown how long defendant was in the hospital (he was later released) or that his military service prevented his delivery to the sheriff during the remainder of the sixty-day period fixed by section 13636.
It is generally held that where military service of the accused is offered by the sureties as an excuse for his nonappearanceeven at a time when his presence is required by his bail bond,
"it should be shown that proper effort has been made to secure the person of the principal from the military authorities." 6 Am. Jur. 100, 101, section 133. See, also, Briggs v. Commonwealth,185 Ky. 340, 214 S.W. 975, 8 A.L.R. 363, 370, and annotation 371, 372; Ex parte Moore, 244 Ala. 28, 12 So. 2d 77, 78.
But assuming that appellant was prevented by defendant's military service (which commenced after breach of bond, forfeiture, and judgment) from delivering him to the sheriff during the sixty-day period following the entry of judgment, it does not follow that she was thereby prevented from performing the obligation of her bond. Section 13636, under which appellant's motion was filed, is for the benefit of the surety, and the surrender or delivery of a defendant is merely a condition to the relief which may be granted thereunder. State v. Hamilton, 196 Iowa 998, 1002, 192 N.W. 838; State v. Arioso,207 Iowa 1109, 224 N.W. 56. Had defendant been delivered to the sheriff, the granting of relief under section 13636 would still be discretionary with the trial court. State v. Thomason,226 Iowa 1057, 1062, 1063, 285 N.W. 636.
No excuse appears for appellant's failure to produce defendant for trial in accordance with the obligation of her bond, except that she did not know his whereabouts. This, of course, is insufficient. The theory of the law is that the principal defendant is in the custody of the sureties on his bail bond, who are his jailers and assume the responsibility for his appearance *Page 1184
at the time and for the purpose fixed in the bond. The sureties are bound to know the defendant's whereabouts. State v. Arioso,207 Iowa 1109, 1113, 224 N.W. 56; State v. Hamilton, 196 Iowa 998, 1001, 192 N.W. 838; State v. Sandy, 138 Iowa 580, 116 N.W. 599; State v. Zimmerman, 112 Iowa 5, 83 N.W. 720; 6 Am. Jur. 85, section 93; 8 C.J.S. 50, section 31. To sustain appellant's contention here would be to hold that she is entitled to relief to which she would not have been entitled had defendant been delivered to the sheriff within the sixty-day period following the entry of judgment.
In State v. Scott, 20 Iowa 63, 66, 67, a principal on a bail bond, who had failed to appear for arraignment, later volunteered for military service. This fact was offered by the surety as a reason for being relieved of his obligation under an earlier statute quite similar to section 13636 which permitted the court in its discretion to grant relief against the forfeiture. It was held the surety was entitled to no relief. The court, through Dillon, J., said:
"But however this might be, it is clear that, after forfeiture,
these facts would not discharge the liability upon the recognizance. * * *
"Inasmuch, therefore, as the surety after forfeiture cannot, as a matter of right, be discharged on surrendering the principal, it logically and necessarily follows, that the mere fact that he was prevented, by whatever cause, from making such surrender, will not exonerate him."
The only decision called to our attention (and we find no other after a careful search) under section 103 (3) of the Relief Act, which bears on the question now before us, is Ex parte Moore,244 Ala. 28, 30, 12 So. 2d 77, 78. While that decision turns largely on a question of procedure, the following from the opinion is in line with the conclusion we have reached:
"The 1942 Act was approved October 6, 1942; the conditional judgment here was rendered September 21, 1942.
"The status at that time was as discussed in Briggs v. Commonwealth, 185 Ky. 340, 214 S.W. 975, 8 A.L.R. 363. It was there recognized as sound that if the defendant in a *Page 1185
criminal case is drawn into the military service under the Selective Service Act, and was thereby prevented from appearing to answer the criminal charge, a final judgment of forfeiture should not be rendered against the sureties on his bail bond, but that if he was located at a place accessible to the trial, and would have been granted a pass on request to enable him to attend the trial, the final judgment of forfeiture should not be set aside.
"The Act of 1942 seems to embody that principle in express language.
"In any event military service must prevent the bondsmen from enforcing the attendance of the principal. This does not follow from the mere circumstance of military service. The service should prevent his attendance on the trial under that act, as well as before it. * * * He [trial judge] evidently did not find that defendant could not have appeared to answer the charge on account of military service. * * * But if he is in the service, and a pass is refused by the military authorities, or he is out of the country or so situated otherwise by reason of such service that he cannot reach the trial, the sureties may be in position to claim an inability to produce him to stand the trial." — Affirmed.
All JUSTICES concur.
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On or about the 14th day of April, 1932, appellant was employed by the appellee Coleman's Lunch to work at the restaurant operated under the above name. The employment began at 8 o'clock in the evening, and the claimant received the injuries complained of about 12 o'clock the same night. He was directed to wash the walls of the kitchen which had become smoked and greasy from use and a fire in an adjacent building. Compensation was awarded to appellant by the industrial commissioner, but, upon appeal to the district court, a reversal was had. The evidence tends to show that very little was said between the parties at the time of the employment, and the record does not very definitely disclose whether it was to be for the single job of washing the walls or *Page 946
whether it was to continue indefinitely. The evidence was, however, sufficient to support a finding by the industrial commissioner that the employment was not for the sole purpose of washing the walls and that the employer contemplated that it would continue the same as the employment of other persons working at the restaurant. The question presented to this court for decision is: was the employment of appellant purely casual, as provided by section 1361 of the Code, or, if casual, was it for the purpose of the employer's trade or business? As pointed out in numerous of the cases hereafter cited, changes have occurred in the statute from time to time dealing with the subject of casual employment. The term "purely casual employment" has not been so far defined by statute as to assign to it definitely prescribed limitations. The word "casual", as defined by lexicographers, is quoted in Herbig v. Walton Auto Co.,191 Iowa 394, 182 N.W. 204, as follows:
"The word `casual' is defined in the dictionaries as `coming without regularity; occasional; incidental;' `coming at uncertain times or without regularity, in distinction from stated or regular;' `a laborer or an artisan employed only irregularly.' See Webster and Century Dictionaries."
The statute is, however, far more comprehensive in its scope than the mere technical definition of the word "casual." It is not here employed in its purely technical or abstract sense. It must be construed in the light of the statute and so as to carry out the legislative intent. The term "employer" is defined by sub-division 1 of section 1421 of the Code of 1931 as follows:
"`Employer' includes and applies to any person, firm, association, or corporation, state, county, municipal corporation, city under special charter and under commission form of government, school district, and the legal representatives of a deceased employer."
The term "workman" or "employee" is defined in sub-division 2 of the same section in the following language:
"`Workman' or `employee' means a person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship, for an employer, except as hereinafter specified."
Sub-division (a) of sub-division 3 of the foregoing section is *Page 947
exclusive in terms, but, by implication, inclusive also. We quote as follows:
"3. The following persons shall not be deemed `workmen' or `employees':
a. A person whose employment is purely casual and not for the purpose of the employer's trade or business."
A person whose employment is purely casual and not for the purpose of the trade or business is neither a "workman" nor an "employee" within the meaning of the statute. Clearly, the appellee Coleman's Lunch comes within the contemplated definition of the term "employer," but, if the employment of appellant was purely casual, without more, his injuries are not compensable. This is true under each of the sections of the statute cited above. The industrial commissioner found that the employment was purely casual in nature, but that this fact alone did not present a legal ground for denying compensation. The legal conclusion implied in this finding and conclusion of fact by the industrial commissioner are in harmony with the prior holdings of this court. Pfister v. Doon Electric Co., 199 Iowa 548, 202 N.W. 371; Eddington v. Northwestern Bell Tel. Co., 201 Iowa 67, 202 N.W. 374; Oliphant v. Hawkinson, 192 Iowa 1259, 183 N.W. 805, 33 A.L.R. 1433.
The reason supporting the finding of the industrial commissioner at this point is that the employment may also have been for "the purpose of the employer's trade or business." If so, then clearly, under the language of the statute and the well-settled rule in such cases, the injuries are compensable.
Was appellant's employment, although purely casual in nature, not for the purpose of the trade or business of the employer? This is the vital question in the case.
It is provided by section 2818 of the Code of 1931 that the side walls and ceilings of every restaurant shall be of material so that they can be washed clean, and they shall be kept well limed and washed, and by section 2824 that the walls and ceilings shall be kept in a thoroughly clean condition.
The statutes cited make it the legal duty of restaurant keepers, as a part of the equipment, and for the purpose of the trade or business, to maintain and preserve cleanliness in the respects designated. There is, no doubt, some diversity in the holdings of courts in other jurisdictions as to just what constitutes employment for *Page 948
the purposes of a trade or business. The term "employer," as defined by the statute, is a broad and comprehensive one. The exception, which excludes a person working in a certain capacity, from the statutory definition of "workman" or "employee," is defined only as the language employed generally accomplishes this result. There is a broad sense in which every kind of service rendered by a person working upon or about a building, or performing services on the inside thereof, used for business purposes, is for the purpose of the employer's trade or business. The language of the statute does not, however, permit the application of so broad a definition in determining just what service comes within the "purpose of a trade or business." Cleanliness is indispensable to the highest success of a restaurant keeper's business. The legislature, as already appears, has imposed certain strict duties upon him in this particular.
The length of the term of employment does not alone determine its character. Although casual, if for the purpose of the trade or business, a person employed therein is a "workman" or "employee" and this is true whether the employment is for a specific task or of indefinite and uncertain duration.
The Supreme Court of Michigan in Holbrook v. Olympia Hotel Co.,200 Mich. 597, 166 N.W. 876, speaking to this question, said:
"It is clear that the law contemplates that there may be an employment of labor, not in the usual course of the business of the employer, in which employment the risks of injury not occasioned by the employer's fault are assumed by the workman. It would seem that occasionally renovating the rooms of a building, or the building itself, owned and occupied by the owner as a home, with paint or paper or both, is not in the usual course of the trade, business, profession or occupation of the owner, unless he is himself in the business of painting and decorating. No reason can be found for concluding that the owner of a hotel is pursuing his business, within the meaning of the law, when he causes the rooms to be occasionally painted and decorated, although it is usual to have work of that nature done from time to time."
The District Court of Appeals of California in Blood v. Industrial Acc. Com., 30 Cal. App. 274, 157 P. 1140, held that one engaged to do a job of painting was not employed in the usual course of trade or business. It was held in Maryland Casualty Co. v. Pillsbury, 172 Cal. 748, 158 P. 1031, that one employed to repair a *Page 949
tractor used on a ranch in plowing, pulling wagons, and for other purposes in connection with the farming operations was not employed for the purpose of a trade or business. The court said:
"If the view that this employment was in the usual course of the occupation of Mr. Harris as a farmer be correct, the distinction sought to be established by the statute has no force whatever, because, following to its logical limit the argument of counsel that `it was part of Mr. Harris' business to have his tractor put in order for use,' we would have to say that the man who made his clothing for use on the farm, the cobbler who mended his shoes, the locksmith who, at a shop in town, filed a key for the lock on the smokehouse door, and countless others who rendered services of any sort relating to the conduct of his farm were engaged in his occupation. We do not see how such meaning may be attributed to the words of the statute. It is true that the tractor had been used and was intended for use on the farm."
See, also, State v. District Court, 138 Minn. 103, 164 N.W. 366.
Obviously, there is no exact test by which the answer to the question, what constitutes employment in the usual course of one's trade or business, may be ascertained, and each case must, in large measure, be determined according to its own facts. Perhaps the rules previously discussed in prior opinions of this court are as accurate and as well adapted to the purpose of defining the term as any. Oliphant v. Hawkinson, 192 Iowa 1259, 183 N.W. 805, 33 A.L.R. 1433; Pfister v. Doon Electric Co.,199 Iowa 548, 202 N.W. 371.
The term "business" has been defined as the habitual or regular occupation that a person is engaged in, with a view to earning a livelihood or gain. Marsh v. Groner, 258 Pa. 473, 102 A. 127, L.R.A. 1918F 213; Nelson v. Stukey, 89 Mont. 277, 300 P. 287, 78 A.L.R. 483.
The last cited case involved an action by an injured employee against his employer to recover damages for injuries suffered while performing services under such employment. The statute of Montana, in which state the action arose, covered the case fully. The plaintiff was employed by the defendant as foreman to supervise the work of constructing an addition to an apartment house owned and operated by said defendant. One of the defenses interposed was that the employment was casual in nature, in which case recovery *Page 950
could not be had. The defendant was a dentist engaged in the business of his profession. He also operated the apartment house on which the plaintiff was employed when injured. The court held that the employment was not casual and that it was in furtherance of the employer's business.
The defendant in Johnson v. Asheville Hosiery Co., 199 N.C. 38,153 S.E. 591, operated a factory for the manufacture of hosiery. To make the room in which the operators worked convenient and reasonably safe, the lighting facilities were of great importance. It was decided by the employer that, if the ceiling were painted with white or light-colored paint it would facilitate the work and add safety to the operators. The claimant was a painter, and, after being employed to make some repairs about the plant, was engaged to paint the factory. While engaged in painting the ceiling of the room in question, he was injured. The court held that he was employed in the usual course of the employer's trade or business.
The facts involved in Walker v. Ind. Acc. Commission, 177 Cal. 737,171 P. 954, L.R.A. 1918F 212, are somewhat similar to the facts in the case before us. The employer was the keeper of a lodging house in which a chambermaid was continuously employed to keep the rooms and hallways clean. Being unable to accomplish this purpose alone, the claimant was employed to assist in the taking up of carpets and matting and in cleaning walls, transoms, windows, and curtains. Cleanliness of the rooms and hallways was essential to the proper conduct of the employer's business. While engaged in such service, the helper was injured. The court held that the injuries occurred in the usual course of the business of the employer, and the award of compensation under the workmen's compensation laws of California was affirmed.
Cleanliness of the kitchen and other departments of the restaurant in which appellee was employed was not only essential to the business, but its maintenance was, in part at least, a statutory duty. Testifying on this subject, the employer said:
"I have my walls and ceilings washed whenever it is necessary. Sometimes it would be twice a year. Sometimes, in speaking about this case, it was washed twice in about a month. In other words, I wash it when it needs it. It was washed on account of the fire. I consider washing the ceiling a vital part of my business, the same as washing the dishes, the linen and silverware. It all has to be done, and the cooking clean and the floors clean. I had painting done. *Page 951
You don't call that general work just the same as painting, having the walls washed and cleaned."
There is in the various states some diversity in the language of workmen's compensation laws. This necessarily requires some diversity of holding. The present may be a border line case but the evidence, we think fully warranted the finding of the industrial commissioner that appellant was a "workman" or "employee" within the definitions prescribed in section 1421 of the Code. The services being performed at the time the injuries were received were, it is true, more or less casual in character, in the sense at least that they were not continuous and were performed only at intervals as the necessity might arise. This is true of many services which, all would concede, are necessary for the purpose of the trade or business. While the finding and conclusion of the industrial commissioner involved both a question of fact and a question of law, they are not so separate and distinct in character as to permit a contrary decision by this court upon the theory that only a question of law is presented. The purpose of workmen's compensation laws has often been stated in the prior decisions of this court. It is the conclusion of the court, without further elaboration, that the services performed by appellant were for the purpose of the trade or business of his employer. The judgment of the district court must therefore be, and it is, reversed. — Reversed.
ALBERT, C.J., and MITCHELL, ANDERSON, and KINTZINGER, JJ., concur.
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[1] The question is whether plaintiff, a veteran of the World War, or intervener, George H. Geyer, who is not a veteran, is entitled to the position of shelterhouse attendant at the municipal airport.
Section 5695, Code 1939, appearing in chapter 289, Civil Service, provides, in part, as follows:
"5695 Preference by service. Any person regularly serving in or holding any position in the police or fire department, or a nonsupervisory position in any other department, which is within the scope of this chapter on the date this act [47 GA, ch 156] becomes effective [April 16, 1937] in any city, who has then five years of service in a position or positions within the scope of this chapter, shall retain his position and have full civil service rights therein.
"Persons in nonsupervisory positions, appointed without *Page 242
competitive examination, who have served less than five years in such position or positions on said date, shall submit to examination by the commission and if successful in passing such examination they shall retain their positions in preference to all other applicants and shall have full civil service rights therein * * *."
In April 1936, George H. Geyer was appointed shelterhouse attendant — a nonsupervisory position — by Lee Keyser, Superintendent of the Department of Parks. He occupied this position to the date of the trial and during this time he was on the pay roll of the City of Des Moines, which pay rolls were approved semiannually by the Superintendent of Parks and the City Council.
Each year the City Council made an appropriation for his salary, which has been paid to him since his appointment in 1936. Intervener's appointment by the Superintendent was not formally approved by the City Council. Assuming approval of the appointment by the Council was necessary (see Loran v. City of Des Moines, 201 Iowa 543, 207 N.W. 529), the Council, by its actions, confirmed and ratified the appointment, and appellant's contention that intervener was not appointed to the position in 1936 cannot be sustained.
On September 7, 1940, a civil-service examination was held for the position of shelterhouse attendant at the airport, and intervener and appellant were certified to the City Council as having successfully passed the examination.
On September 16, 1940, A.H. Daniels, Superintendent of Parks, appointed appellant John J. McMahon to the position, which appointment was confirmed by the City Council to become effective on October 1, 1940. Section 5699.2 provides that civil-service appointments in cities under the commission form of government shall be made by the superintendents of the respective departments, with approval of the city council.
Intervener then appealed to the Civil Service Commission alleging his civil-service rights had been invaded by appellant. The Commission found that intervener was duly appointed and employed as shelterhouse attendant at the airport and was holding such position on April 16, 1937, the effective date of section 5695 of the 1939 Code of Iowa, and that, having successfully *Page 243
passed the civil-service examination, he was entitled to retain the position under the provisions of this section.
The order of the Commission was filed with the City Council and thereupon the council passed the following resolution:
"Roll Call No. 3252.
"Des Moines, Iowa, Sept. 30, 1940.
"Whereas, under Roll Call No. 2959 of September 16, 1940, John J. McMahon was appointed as Shelter House Attendant at the Airport, effective October 1, 1940; and
"Whereas, after hearing before the Civil Service Commission of Des Moines, Iowa, it has been determined that the present incumbent, George Geyer, has civil service preferential rights to said position and is entitled to retain the same with a seniority rating commencing April, 1936; Now, Therefore, Be It Resolved, bythe City Council of the City of Des Moines:
"That Roll Call No. 2959 of September 16, 1940, appointing John J. McMahon to said position, be and is hereby rescinded."
Following the passing of the resolution, appellant filed his petition for a writ of certiorari. The trial court found intervener was entitled to the position and annulled the writ. From this judgment appeal was taken.
[2] I. Appellant contends the court erred in holding the intervener had been appointed to the position of shelterhouse attendant in 1936 and that he retained this position under the provisions of section 5695. We are unable to agree with appellant.
As above stated, intervener was appointed to this non-supervisory position in 1936. He had served less than five years in this position when Civil Service Chapter 289 (chapter 156, Acts of the Forty-seventh General Assembly) became effective. He submitted to and successfully passed an examination by the commission, and, under the plain provisions of section 5695 (chapter 156, section 6, Acts of the Forty-seventh General Assembly), retained his position in preference to all other applicants with "full civil service rights therein."
For a recent construction of section 5695, see opinion by Hale, J., in City of Des Moines v. Board, 227 Iowa 66, 287 N.W. 288.
Having appointed appellant to a position in which there *Page 244
was no vacancy, the Council had jurisdiction to rescind and it was its duty to rescind his appointment when it discovered intervener had civil-service preferential rights to the position under section 5695. We should state that when Mr. Daniels appointed appellant he did not know of intervener's civil-service rights.
[3] II. Appellant claims that he is entitled to hold the position until removed, under the provisions of the Soldiers' Preference Act, citing Hahn v. Clayton County, 218 Iowa 543, 255 N.W. 695, and Jones v. City of Des Moines, 225 Iowa 1342, 283 N.W. 924. The answer to this contention is that in the case at bar there was no vacancy in the position when appellant was appointed, intervener being the incumbent under the provisions of section 5695. The cited cases are not applicable to the fact situation in the instant case.
[4] III. Section 5704, 1939 Code, reads:
"5704 Appeal. If there is an affirmance of the suspension, demotion or discharge of any person holding civil service rights, he may, within twenty days thereafter, appeal therefrom to the civil service commission. If the suspension, demotion, or discharge is not affirmed within five days the person who suspended, demoted, or discharged such officer or employee may in like manner appeal."
Appellant contends that the Civil Service Commission did not have jurisdiction of intervener's appeal to the Commission because he — intervener — was not suspended, demoted, or discharged; citing Walling v. Civil Service Comm., 214 Iowa 1156, 243 N.W. 178, and Larson v. City of Des Moines, 216 Iowa 42, 247 N.W. 38.
Assuming this proposition was submitted to the trial court, it cannot be sustained here because of section 5711, Code of 1939, which reads:
"5711 Jurisdiction — attorney — decision. The civil service commission shall have jurisdiction to hear and determine all matters involving the rights of civil service employees, and may affirm, modify, or reverse any case on its merits.
"The city attorney or solicitor shall be the attorney for the *Page 245
commission or when requested by the commission shall present any matters concerning civil service employees to the commission.
"If the appeal is taken by a suspended, demoted, or discharged employee and reversed, he shall be reinstated as of the date of his suspension, demotion, or discharge, and shall be entitled to such compensation as the body having jurisdiction may determine."
The Commission had jurisdiction of intervener's appeal under the first paragraph of section 5711.
The cited cases were decided under section 5695, appearing in Civil Service Chapter 289. Code 1931, which read:
"5695. Examination excused. Persons now holding positions for which they have heretofore been appointed or employed after competitive examination, or who have rendered long and efficient service, shall retain their positions without further examination, but may be removed for cause."
Walling v. Civil Service Comm., supra, held the Commission had no jurisdiction of the appeal, by a municipal employee who retained her position without a civil-service examination, from the order discharging her, by the mayor of Des Moines, because she had never become a member of the civil-service list through an examination.
In Larson v. City of Des Moines, supra, at page 44 of 216 Iowa, page 39 of 247 N.W., the court, speaking through Mr. Justice Donegan, said:
"It has been quite clearly established, however, by the holding of this court in Walling v. Civil Service Commission, 214 Iowa 1156, 243 N.W. 178, that `long and efficient service' does not give a city employee the right of appeal to the Civil Service Commission, and that the only city employees who are entitled to take such appeal are such as have been appointed from the civil service list."
However, section 5695, 1931 Code, was repealed by chapter 156, section 6, Acts of the Forty-seventh General Assembly, and section 5695, Code 1939, was enacted in lieu thereof, and, as intervener had full civil-service rights under the latter section, *Page 246
the Commission had jurisdiction to entertain his appeal under section 5711, 1939 Code.
Section 5711, 1931 Code, read:
"5711. Decision. The council or civil service commission, as the case may be, shall determine the matter on its merits. If the appeal is taken by a suspended or discharged employee and reversed, he shall be reinstated as of the date of his suspension or discharge, and be entitled to compensation for such part of the period while suspended as the commission may determine."
Assuming this section limited the appellate power of the Commission to the appeal of discharged or suspended employees, it was repealed by chapter 156, section 19, Acts of the Forty-seventh General Assembly, and section 5711, 1939 Code, which gives the Commission jurisdiction to hear and determine all matters involving the rights of a civil-service employee, was enacted in lieu thereof. — Affirmed.
All JUSTICES concur.
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About 11:00 o'clock in the morning of December 26, 1930, the plaintiff was driving a Ford sedan south on State Highway No. 169, a graveled highway running north and south, and intersecting the Lincoln Highway, about a mile and a half south of the place of collision. The graveled roadway on No. 169 was about twenty-two feet wide. At or about the place of the collision was a concrete bridge about twenty-five or thirty feet long, with an eighteen-foot roadway. On each side of the floor of the bridge were solid concrete banisters, three or four feet high, with concrete diagonal wings extending five or six feet beyond the ends of each banister. Plaintiff claims that he was driving at a speed between 40 and 45 miles an hour, but slowed to 25 or 30 miles an hour as he approached and came onto the north end of the bridge, and that just as he came onto the bridge, and when his automobile was not more than a foot from the right or west banister, the Chevrolet truck of *Page 365
the defendant, proceeding northward, swerved into his automobile and caused the injuries complained of. It was not a head-on collision but a crashing together of the sides of the vehicles. Plaintiff's automobile stopped near the south end of the bridge with the rear of the automobile against the west banister and the body angling southeast across the roadway. The truck left the east side of the road and the ditch and came to rest in a pasture on the west side of the road about 200 feet from the bridge. The driver of the defendant's truck claims that after he had crossed the bridge and was about 50 feet north of it and on the extreme east side of the road the automobile of the plaintiff swerved into the truck. The driver of the truck testified that he had been proceeding at a speed of about 40 miles an hour, but slowed down for the bridge. Three occupants of another automobile had followed the truck from near Ogden west on No. 30 and north on No. 169, and saw the collision when somewhat less than a quarter of a mile south of the bridge. Their automobile had traveled at a speed of about 55 miles an hour and had gained but little on the truck. Both vehicles were badly damaged, and the plaintiff was severely injured. He lost the sight of his left eye, the frontal bone was fractured, the corner of his mouth cut, and he had other minor bruises and cuts. He bled from the right ear, nose, and mouth. He was in the hospital five weeks, during part of which time he was violent and for two weeks recognized no one. He was 31 years old and had been getting $7.00 a day as a pipe line foreman. At the time of the trial he was working, though not as a foreman, and at reduced wages. The jury returned a verdict of $11,678.36 for the plaintiff, which the trial court, on motion of defendant, ordered set aside unless a reduction to $8,500 was accepted by plaintiff. The plaintiff remitted to that amount and judgment was entered therefor.
The defendant denied negligence on its part and specially pleaded that the sole proximate cause of plaintiff's injuries was his own negligence.
Defendant assigns as error the giving of Instruction 5, both taken alone and also in connection with Instruction 6. Instruction 5 and the pertinent part of Instruction 6 are as follows:
"5. Negligence, in a general sense, as used in these instructions, means a failure to exercise that degree of care which a reasonably careful and prudent person would ordinarily exercise under like situation or circumstances, or the doing of an act which a *Page 366
reasonably careful and prudent person under like circumstances or situations would not have done. Negligence may also consist in doing some act which the law forbids or in the failure to do that which the law commands. There is no fixed standard by which care can be measured and designated, but the term `ordinary care' means that care and prudence which is exercised by ordinarily careful and prudent persons under like circumstances, and negligence means the want of that kind of care. Contributory negligence is negligence on the part of a person injured which contributes to the injury complained of: that is, the want of ordinary care and prudence on the part of the person injured which contributes directly and proximately to the injury complained of, and but for such negligence on the part of the person injured the injury would not have occurred. It is the law that where a party is injured and such injury is due to his own negligence he cannot recover against the other party even though he may also have been negligent. So a party injured by alleged negligence of another must show that he himself was free from negligence which caused or contributed to the injury complained of. By the term `proximate cause' is meant that cause which directly and naturally leads to and produces the results complained of, and without which cause the injury would not have occurred.
"6. It is provided by statute in this state, among other things, that `persons in vehicles, including motor vehicles, meeting each other on the public highway shall give one-half of the traveled way thereof by turning to the right.' * * *"
[1] One criticism which appellant makes of Instruction 5 is directed to this sentence: "It is the law that where a party is injured and such injury is due to his own negligence he cannot recover against the other party even though he may also have been negligent." (Italics are ours.) Appellant contends that by this sentence being incorporated in the paragraph defining contributory negligence the jury might well have believed that the contributory negligence of the plaintiff necessary to defeat his recovery, must have been such negligence as was the proximate cause of the injuries, and not merely a contributing cause. While it would have been better to have placed this sentence in an instruction dealing particularly with the specially pleaded defense that the injuries were caused solely by the plaintiff's negligence, yet we do not believe it has the effect claimed by the appellant. It is a correct statement of the law and was proper to be given in view of the special defense pleaded. *Page 367
[2] Appellant also complains of the last clause in the definition of contributory negligence, to wit: "and but for such negligence on the part of the person injured the injury would not have occurred." The complaint lodged against the use of these words is that they also are a direction to the jury that to bar the recovery of the plaintiff his contributory negligence must have been the proximate cause instead of a proximate cause. Appellant cites a decision of the Minnesota court, Eichhorn v. Lundin (Minn.), 216 N.W. 537, in support of this assignment of error.
This court, many years ago, in Banning v. Chicago, R.I. P. Railroad Co., 89 Iowa 74, 81, stated the contributory negligence rule in simple, unambiguous language, which it is difficult to improve upon. We there said:
"* * * if the injured party contributed in any way or in any degree directly to the injury, there can be no recovery."
In many later decisions this statement of the rule has been approved. It has been expressed otherwise and with additional qualifying clauses, and we have held some of these statements not to have been error, but uniformly these additional and explanatory clauses have not added to the clarity of the instruction, and have had a tendency to confuse the jury. If the words complained of had been omitted, the definition would not be subject to appellant's criticism. Does the addition of this clause in any way change the meaning which is already expressed without it? We think that it does, and that the addition of these words has the effect contended for by the appellant. We hold the instruction to be erroneous for that reason.
[3] Appellant further complains of and assigns as error the use of the words "negligence may also consist in doing some act which the law forbids or in the failure to do that which the law commands," when read in connection with the first paragraph of Instruction 6. His objection is that by this instruction the jury were told, and must have so understood, that, if they found that the defendant violated the statutory command by failing to give one-half the traveled way to the plaintiff by turning to the right, the defendant was then guilty of negligence as a matter of law. Under our holding in Kisling v. Thierman, 214 Iowa 911, and in a number of preceding cases, the driving of a vehicle on the wrong side of a country highway is only prima-facie evidence of negligence. *Page 368
We think there is merit to the defendant's contention, and that the error complained of was prejudicial.
Other errors are assigned and argued, but in view of our decision to reverse, we do not discuss them.
The judgment is — Reversed.
STEVENS, C.J., and EVANS, ALBERT, KINDIG, and CLAUSSEN, JJ., concur.
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The chief complaint of appellants is that the court erred in denying a new trial based upon the ground of newly discovered evidence. To better understand the ruling of the court, a brief statement of the facts will be helpful.
The plaintiff is an unmarried laboring man, 72 years old at the time of the trial, who had lived about the town of Dows and worked at common labor for over 20 years. He had acquired a modest amount of property. From 1929 to 1936 he had made his home with the defendant, R.H. Meyer, commonly called Roman Meyer. During all, or the greater portion of this time, Meyer lived on a 40-acre tract partly within the corporate limits of the town. The plaintiff received no wages and paid no board. He milked the cows, fed the chickens, cut wood, fixed fences, and did the chores generally about the place. He occasionally received modest honorariums from Meyer, by way of vacation and business trips, at the expense of the latter.
The defendant Meyer Meyer was a partnership, composed of R.H. Meyer and his nephew, Byron Meyer, and was engaged in buying livestock. The firm, or Roman Meyer, also conducted a sales barn. When the banks were closed in early March, 1933, Roman Meyer told the plaintiff that the firm was in need of cash, but had had proffers of help. The plaintiff told him that he had lately withdrawn $2,000 from a Spirit Lake Bank, and had it in paper currency, and if it would aid the firm he would loan the money to it. The offer was accepted, and the firm through R.H. Meyer, executed its note of $2,000 to the plaintiff, on March 4, 1933, payable 10 days later. After the bank had reopened, and on March 28, 1933, Roman Meyer claimed that he withdrew $2,000 and the accrued interest on the note, in cash, from the firm's bank account, and tendered the money to plaintiff, with the statement, that the firm no longer needed the money. He testified that plaintiff rather demurred *Page 514
to accepting the money, and inquired if the firm could not use it for a longer time. Roman said he told him that the firm did not need it, but that he, personally, could use the money in making a payment on the 40 acres, which he had bought in February, 1933, but that if this was done the firm note would have to be canceled and returned, and his own individual note substituted therefor. He testified that the plaintiff accepted the proposition, and told him he would look up and return the firm note, and that it could be considered as canceled and the firm debt discharged. Roman Meyer further testified that about a year later he told plaintiff that he still had his money, and that he was going to pay it on the purchase price of the farm, or to reduce a mortgage indebtedness thereon, if plaintiff had no objection. He stated that plaintiff said he had no objection and for him to so use the money. Defendants pleaded this alleged payment of the note as a defense to the suit. Meyer said that on several occasions, after the alleged arrangement with plaintiff, he asked for the return of the firm note, and offered to execute his note. Of these occasions, he testified:
"I had other conversations with him after that time. I kept a record of these conversations in an individual account book but the account book has been destroyed. I asked him several times to get the note for me, that I would like to straighten it up, but he never answered me. He would always walk away, except the first time, and at that time, he said it was all right. I made an entry every time I had a talk with him about the $2,000. * * * I had other conversations with Mr. Larson on two different occasions. When I asked him to look up the note, that I wanted to get it straightened out; then again in 1936 in the Fall, I told him things weren't looking good for me, that I didn't want him to lose the money, that I would turn the property over to him, so that he would not lose his money. I offered to deed my equity to him. He said `I don't want the land, I want the money.' I said. `I haven't got the money and things don't look so good, and it might take quite a while to get it, and I would rather do it that way to protect you.' He made no answer."
He testified that on one occasion the plaintiff said he had lost or mislaid the note.
The plaintiff denied each and all of the above-stated *Page 515
transactions, which occurred subsequent to the execution of the note. He testified that Roman Meyer never mentioned the note to him until in August, 1936, when he asked to substitute his note for the firm note, and plaintiff refused. He testified that Roman Meyer never tendered payment of the note, or offered to deed him property, or to secure him in any way, at any time. He stated that the transaction was handled, for the firm, entirely by Roman Meyer, and that he never talked to Byron Meyer about it until after the action was brought.
The plaintiff, alone, testified in support of his case, and offered the note sued on in evidence. The testimony of Roman Meyer was supported by the testimony of Fred M. Bump, a former employee of his, and by that of Mrs. Bump. They testified to separate occasions when plaintiff allegedly made admissions damaging to his cause. Bump stated that, about October 1, 1936, the plaintiff told him:
"He told me Roman owed him this money and he had nothing to show for it, that Roman wanted to sign the property over but he said he didn't want the property, he wanted money. I said to him, `Hans, you better take it. You better take the property. There is a small mortgage of $1500 against it.' * * * I had another conversation with him one evening when he came over to our place to fetch back some jars the missus had given him fruit in. Hans said he was left with no money, Roman had left him owing this money, and the stockyard money, and he put it in the farm and now he didn't have nothing to show for it. My wife was present at the conversation, just we three. * * * I asked Mr. Larson whether Byron Meyer or Meyer Meyer owed him anything. He told me that the money, that $2,000 was put in the farm, he let Roman have it. He told me that he let Roman have it to put in the farm, that Roman wanted to sign the property back to him, that he had nothing to show for it. He said Byron didn't owe anything. It was Roman that owed him the money."
Of the latter occasion, late in the fall of 1936, Mrs. Bump testified:
"One evening Hans Larson spoke about the $2,000 loan. He said Mr. Roman Meyer owed him $2,000. He said that Byron had had it, that he could have had it at one time, that Roman *Page 516
came home and said to him that Byron had paid that money and what did he want to do with it. He said the bank wasn't good and he didn't feel like keeping it around. That Roman said to him, if you don't want it and don't want to use it, and want to let me have it, I will pay off the mortgage on the farm and he said, `I thought Roman was all right and if he wanted it, I could get it, that that was a good place for it.' So, he says, `I let Roman have it and now it looks like I ain't going to get it. It is gone.' He said he thought that as long as Roman was there, he would get it when he needed it, but now it looks like it was gone and it left him hard up."
The jury evidently thought the testimony of the plaintiff was more worthy of belief than that offered by the defendants, as they returned a verdict of $3,250 for him.
In their motion for new trial the defendants claimed newly discovered evidence, and attached the affidavits of three persons who each swore that on separate occasions admissions against his interest were made by appellee. One affiant stated that between July 1 and October 1, 1934, plaintiff told him he had loaned Roman Meyer $2,000 to make a payment on his 40-acre farm, and that he had no note to evidence the loan. Another swore that between September 1, 1936, and January 1, 1937, plaintiff told him Roman Meyer owed him a large sum of money, and the latter asked him to take over the 40-acre farm, and that he refused, but wished later he had accepted. The third affiant stated that in October or November of 1937 the plaintiff told him that he invested $2,000 in the 40-acre farm owned by Roman Meyer. This person had talked to Byron Meyer before the trial but this matter was not discussed. No question was raised as to the diligence of appellants.
In its ruling the trial court stated:
"I am of the opinion after examining the three affidavits setting forth the newly discovered evidence, that such evidence, if given, is not of such weight and effect as to be at all likely to produce a different result if a new trial is had. Nearly every circumstance set forth in these affidavits was testified to, in substance, at least, by the two witnesses, Mr. and Mrs. Bump, both of whom were disinterested witnesses. Their testimony, however, was much stronger and very more directly to the point in controversy than the evidence set forth in these affidavits. * * * *Page 517
"I am reluctant about granting a new trial in any case unless it is clearly shown that an error has been committed and an injustice will result. I am of the opinion that the showing made and the reasons urged in this case are insufficient to warrant the Court in setting aside this verdict and granting a new trial."
[1] I. The motion for new trial was filed under 1935 Code, section 11550, paragraph 7, which provides:
"The former report, verdict, or decision, * * * shall be vacated and a new trial granted, * * * for the following causesaffecting materially the substantial rights of such party: * * *
"7. Newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial."
The italicized words furnish the interpretive key to the section. As stated in Dobberstein v. Emmet County, 176 Iowa 96,103, 155 N.W. 815:
"* * * the court will grant the rehearing much more readily than where the evidence leaves little room for doubt that the judgment as rendered effectuates justice."
Were the substantial rights of the appellants materially affected by being denied a new trial of the issues, with the additional testimony? The test has been repeatedly stated by this court in language, sometimes differently worded, but uniformly of the same import. In Rockwell v. Ketchum, 149 Iowa 507, 517, 518,128 N.W. 940, the court stated it thus:
"It [new trial] ought not to be granted unless the newly discovered evidence is such as likely will lead to a different result. * * * or in any case where a different result is not reasonably probable."
In Walterick v. Hamilton, 179 Iowa 607, 161 N.W. 684, the phrase last quoted was used. In Simons v. Harris, 215 Iowa 479,482, 245 N.W. 875, this language was used:
"The overruling of such motion on the ground of newly discovered evidence is a matter that primarily rests in the sound discretion of the trial court, and should not be granted unless *Page 518
the newly discovered evidence will probably lead to a differentresult." (Italics ours.)
In Henderson v. Edwards, 191 Iowa 871, 873, 183 N.W. 583, we said:
"If it can be said that, in all probability, the newly discovered evidence will not affect the result in case of a second trial, then the motion should be denied."
In the last cited case, this language also is found:
"If the proffered evidence presents material facts germane to the issue in controversy, which, considered with the evidence presented on the trial, might cause a jury to take the other view, then the motion should be sustained." (Italics ours.)
We think the word "might" states the rule too broadly. The question is not one of possibility, but rather one of reasonable probability, or likelihood. See also City of Des Moines v. Frisk,176 Iowa 702, 158 N.W. 590.
In Harber v. Sexton Son, 66 Iowa 211, 216, 23 N.W. 635, 637, the court said:
"* * * we do not think that the alleged newly-discovered evidence, if admitted upon another trial, would change the result. * * * In our opinion, the introduction of the alleged newly-discovered evidence could have but little weight, and would not have led to a different result."
[2] II. Further support for the court's ruling is the fact that the new evidence is clearly cumulative. Not cumulative, as to the incident and occasion, testified to by Mr. and Mrs. Bump, but cumulative as to the point or issue concerning which they testified. In German v. The Maquoketa Savings Bank, 38 Iowa 368,369, the court stated:
"It is exceedingly difficult, if not impossible, to furnish a general definition of cumulative evidence, which in a given case will materially aid in determining whether particular testimony offered falls within or without that class.
"In 1 Greenleaf on Evidence, § 2, it is said: `Cumulative evidence is evidence of the same kind, to the same point. Thus,if a fact is attempted to be proved by the verbal admission of *Page 519 the party, evidence of another admission of the same fact iscumulative.'" (Italics ours.)
The rule from Greenleaf was again followed in Wayt v. B., C.R. M.R. Co., 45 Iowa 217, 220.
The illustration given by Greenleaf exactly parallels the situation in this case. Here the Bumps testified to two separate occasions when the plaintiff allegedly admitted that it was Roman Meyer who was indebted to him, while the affiants swear to other admissions of the same fact. Their testimony, if it would be as alleged, would unquestionably be cumulative. The fact that each of the affiants described a different transaction from that testified to by the Bumps, would not save their testimony from being cumulative. In so far as Means Bros. v. Yeager, 96 Iowa 694,697, 65 N.W. 993, may hold to the contrary it is overruled.
[3] III. In a matter of this kind a large discretion is lodged in the trial court. The trial judge by his long experience at the bar and on the bench was eminently qualified to pass upon this question, and it is our judgment that he exercised his discretion wisely and judiciously. He had the witnesses before him, he could observe the reaction of the jury to their testimony, and was in a better position to judge of what another jury might do than we are able to do. As stated in Alger v. Merritt, 16 Iowa 121, 127:
"It is always difficult for the appellate tribunal to more than approximate to a knowledge of the facts as they actually occurred at the trial. The judge at nisi prius has a much better opportunity for seeing and judging how the testimony given and that afterward discovered bears upon that issue, to determine whether the facts offered are similar or dissimilar."
Appellants' counsel has ably presented this case, and it is conceded that he was diligent in his investigation of the facts, but every trial lawyer knows that after the trial of any case that has been provocative of publicity, information very often comes to the attorneys or parties, on both sides, of evidence which would have been material and perhaps helpful. The missed opportunity is but one of the fortunes of legal warfare, but it is not necessarily a ground for relitigating the issues.
We have carefully examined all other assignments and find *Page 520
no errors therein. The judgment of the trial court is therefore affirmed. — Affirmed.
OLIVER, C.J., and HALE, RICHARDS, SAGER, HAMILTON, STIGER, MITCHELL, and MILLER, JJ., concur.
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It appears that on March 21, 1927, the plaintiff, Clark Mosher, obtained legal title to certain real estate in the town of Red Oak, Montgomery County, Iowa, on which there was located a residence. *Page 86
On September 7, 1927, the defendant company issued its policy of fire insurance on said building, for a period of three years, for the principal sum of $2,000 on a two-story shingled roof, frame building. On September 20th, there was issued by the National Security Fire Insurance Company of Omaha, Nebraska, a similar policy for $2,000 covering the same property and extending for a period of three years.
On March 2, 1928, Clark Mosher executed a mortgage on said real estate to his wife, Edith Mosher, to secure the payment of the sum of $2,000. This mortgage was duly filed for record on March 5, 1928. Clark Mosher and Edith Mosher, for a named consideration of the sum of $1,000 executed a deed to said property to a daughter, Clarisso Chrisinger, of Cook County, Illinois. This deed was filed for record on the 28th day of April, 1928. On the same day as the deed from the Moshers to Clarisso Chrisinger, the said Clarisso Chrisinger executed a warranty deed to the same property in the sum of $1,000 to Clark Mosher and Edith Mosher. It appears that this latter deed was never recorded.
On April 30, 1928, the insured property was destroyed by fire. The court found the value of the destroyed property to be $300.
[1] I. The court found that at the time of the fire the plaintiff Clark Mosher was the unconditional owner of the property in question. This is assigned as an error for reversal. We will consider Errors 1, 2 and 3 together. They were so treated in the argument by the appellant.
The destruction of the property is admitted as is the issuance of the policy. The contract of insurance provided, among other things, that the policy be voided if the interest of the insured be other than unconditional and sole ownership.
The appellant contends that the policy was voided by reason of the fact that the building destroyed was on ground not owned by the insured at the time of the fire and that the policy was voided because of the fact that a change had taken place in the interest, title, possession and use of the subject of the insurance and that such change made the risk more hazardous, in violation of the policy.
The deed from Clark Mosher to his daughter, Clarisso Chrisinger, according to the uncontradicted testimony in the *Page 87
record, was never delivered to the grantee. Mosher himself sent it for record. After it was recorded, it was returned to Mosher and it was kept in his possession at all times. It is shown by the uncontradicted testimony that Clarisso Chrisinger paid nothing for the deed. It also appears that on the same day on which the deed from Mosher to Chrisinger was executed, Chrisinger executed a deed of the same property to Clark Mosher and Edith Mosher, his wife. This deed remained in the possession of Clark Mosher and never was recorded.
It is not claimed that Clarisso Chrisinger ever took possession of the property or even attempted to do so. The appellee, Clark Mosher, continued at all times thereafter to exercise dominion and control over the property, to receive rents, if any were paid, and to handle the property in all respects as though the deed from Clark Mosher to Clarisso Chrisinger had never been made.
There is no satisfactory reason given in the record why this deed from Clark Mosher to Chrisinger was executed. The only attempted excuse given for the execution of the deed was the expression of an opinion on the part of Clark Mosher that he could trade the property better by so doing. He says, "When a place changes hands real often, the people think that it moves better, doesn't it?"
Upon the whole record, we think the trial court correctly found that there never was a real parting of interest. That is to say, Clark Mosher remained the real owner of the property, at least until after the fire. Moreover, we think the trial court correctly found that the deed from Clarisso Chrisinger to Clark Mosher was wholly void. This court has on several occasions had before it a similar question.
In Ayres v. Hartford Fire Ins. Co., 17 Iowa 176, this court said:
"The object of the insurance company, by this clause, is that the interest shall not change so that the assured shall have a greater temptation or motive to burn the property, or less interest and watchfulness in guarding and preserving it from destruction by fire. Any change in, or transfer of the interest of the assured in the property of a nature calculated to have this effect, is in violation of the policy. But if the real ownership remains the same — if there is no change in the factof title, *Page 88
but only in the evidence of it, and if this latter change is merely nominal, and not of a nature calculated to increase the motive to burn, or diminish the motive to guard the property from loss by fire, the policy is not violated."
In Cone v. Century Fire Ins. Co., 139 Iowa 205, this court said:
"It was clearly the intention of the plaintiff and Mrs. Gates that the latter should take and hold the record title for the purpose of assisting the plaintiff to escape a possible lien on the property for taxes, and it was just as clearly their intention that no real change in interest or in title should take place by virtue of the transaction. There was therefore no actual diminution of interest or title because the parties did not so intend. Title to real estate may, of course, be acquired and lost by several methods; but, however acquired, one of the essentials ordinarily requisite to a good and perfect title is the right of possession, and a change for diminution `in the interest, title, or possession' must of necessity confer on the grantee something more than a mere paper title. In other words, to work such a change or diminution some right must in fact be conveyed. There was nothing of the kind here. No interest was in fact transferred, and no possession or right of possession was in fact given. It is generally held that the object of the provision against a change in the title or ownership of the insured property is that the insured shall have no greater motive to destroy the property or less interest in protecting it."
See, also, Moore v. St. Paul F. M. Ins. Co., 176 Iowa 549; State Cent. Sav. Bank v. St. Paul F. M. Ins. Co., 184 Iowa 290; Beckley v. National Fire Ins. Co., 194 Iowa 1106.
The facts in this case bring it squarely under the holdings in said cases.
If it be contended that by the deed from Clarisso Chrisinger to Clark Mosher there was a change of interest so far as Clark Mosher was concerned by reason of the fact that the conveyance was to Clark Mosher and his wife, Edith Mosher, the complete answer is that the said Chrisinger deed was without consideration and void. As was said by this court in Beckley v. National Fire Ins. Co., 194 Iowa 1106: *Page 89
"It is the trend of all of our precedents that, when breach of the condition of an insurance policy is predicated by the insurer upon the execution of instruments by the insured affecting the title of the property, either by incumbrance or otherwise, the conditions of the policy thus set up will be construed to refer to valid instruments, and not to a void or colorable one."
[2] II. It will be recalled that after the issuance of the two fire insurance policies in this case, Clark Mosher executed and delivered a mortgage on the insured property to his wife, Edith. The policy in the National Security Fire Insurance Company of Omaha, Nebraska, contained a clause against mortgaging the property without the consent of the insurance company. No such consent was given by the latter company. The defendant consented.
It is the contention of the appellant that if liable at all, it is liable only for its pro rata share of the loss sustained to the property and that the National Security Fire Insurance Company would be liable for the other portion of the loss.
The record shows the mortgage referred to to be a valid one. It violated the terms of the National Security policy; therefore, there was no liability on the part of the National Security Company, and the court correctly so found. Consequently, the appellant was liable for the entire value of the loss, as found by the court.
On the whole record, we think the trial court correctly determined the case, and the cause must be and is — Affirmed.
FAVILLE, C.J., EVANS, MORLING, and KINDIG, JJ., concur.
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This controversy involves a quarrel over a private right of way. The plaintiff-appellant, Wencel Bina, and the defendant appellee, Mathias Bina, are brothers. Frances Bina, a defendant-appellee, is the wife of the appellee, Mathias Bina. Ernest and Victor Bina, defendants and appellees, are the sons of Mathias and Frances Bina.
On and for a long time before March 22, 1905, the land involved, consisting of approximately 230 acres, was owned by Mary Bina and Mathias Bina, Sr. These owners were the father and mother, respectively, of the appellant Wencel Bina and the appellee Mathias Bina. A sale of seventy acres of the aforesaid land on the date named was made by the father and mother to the appellee, Mathias Bina. In addition to the seventy acres of land thus sold, the father and mother also bargained to give the appellee Mathias Bina a right of way over the other 160 acres of the first-named land. Accordingly, a deed of conveyance was made transferring the 70 acres of land and right of way from the father and mother to the appellee Mathias Bina. Likewise, on the same date, for a consideration of $2,200, the father and mother sold to the appellant the remaining 160 acres of the first described land, subject to said right of way. To complete the transaction, the parents gave the appellant a deed to the 160 acres, subject to the right of way.
One of the farms is located on a public road running between Calmar and Spillville; while the other has no access to that public thoroughfare. Appellant's 160 acre tract abuts upon the aforesaid public road, but appellee's 70 acre farm has no access to such highway except over the former's land. Consequently, when conveying this real estate to their sons, the parents were careful to provide a right of way over appellant's land for the appellee in order that the latter could reach the public highway from his premises. This was the road used by the parents before the conveyance and thereafter utilized by the appellant for his own convenience. It seems that appellant's house and farm buildings are a considerable distance from the highway, and the private road running from the farm belonging to the *Page 434
appellee, Mathias Bina, proceeds near the buildings named. There is much irregularity in the land along the private right of way. Some of it is level, but much is hilly and rocky. That private highway had existed for many years before the deeds above named were executed by the parents who formerly occupied the house on appellant's farm above described. On each side of part of this private way extending between appellant's house and the public highway, there is a fence forming sort of a lane, but the rest of the private way is unfenced over appellant's fields. Said fence extends for a distance of approximately 300 feet. Some years ago a bridge or culvert was built on this private road, with the common consent of both appellant and the appellee Mathias Bina. Thus the bridge or culvert now is a part of the right of way.
For many years, the appellant and the appellee Mathias Bina were compatible and used the private right of way in harmony. More recently, however, there has been discord and strife. Appellees have tried to repair the private road, and appellant now complains of their so doing. At times the gates were not closed by appellees, as required by the above named deed to the appellee, Mathias Bina. In many ways the appellant obstructed appellees' use of the private way. Upon one occasion, one of the appellees was using the private road near a culvert, and appellant, approaching in the opposite direction with a team and wagon, stopped and unhitched the team. Therefore said appellee could not proceed with his automobile. Fights ensued, pitchforks were used, and there was much loud and objectionable talking. Obviously these brothers were prone to disregard the Scriptural mandate: "Be reconciled to thy brother."
The present action in any event was commenced by appellant, as said in the preliminary statement: First, to nullify and set aside the provision in the deed creating the right of way; and, second, to enjoin the appellees from leaving gates open along the right of way, plowing up the adjacent land, and trespassing upon appellant's crops while using said private way.
By way of cross petition, the appellees prayed: First, that the easement of right of way be recognized and permanently established; second, that the appellant be enjoined from interfering with the appellees' right to use the private road; and *Page 435
third that the appellees be permitted to repair the right of way. After the hearing, the district court denied the relief asked by appellant and granted the appellees the redress enumerated in their cross petition, as above specified. From the judgment and decree thus entered, the appellant appeals.
[1] I. A careful consideration has been given to all the facts and circumstances revealed in the record, and we are constrained to hold that the appellee Mathias Bina, through the deed from his father and mother, is entitled to use the private right of way in question. Such use, of course, must be in conjunction with the right of appellant to likewise utilize the private road for the purposes of his own farm. Of course, the appellant in so using the private road cannot in any way interfere with the appellee Mathias Bina's utilization thereof. Furthermore, appellant has a right to occupy and use his farm over which the private right of way runs, subject to the appellee Mathias Bina's easement. Restricted by those conditions, however, the appellee Mathias Bina does own the easement.
Accordingly, because the district court did not in all respects limit the rights of the respective parties in that manner and way, its judgment and decree is modified to that extent.
II. Much confusion, nevertheless, arises concerning the width of that easement. Several witnesses, however, testified that the road used is approximately eighteen feet wide. Some indication of this may be found in the fact that the lane aforesaid, forming part of this private way, is in fact eighteen feet wide. Were the private way not of that width, the appellant and appellees would have difficulty in passing each other on the road. That fact, together with the other circumstances, indicates that the private way is approximately eighteen feet wide. Consequently, it is here held that this right of way is eighteen feet in width.
Again the judgment and decree of the district court is modified because that tribunal fixed the width at "not less than eighteen feet."
[2] III. Regardless of the grant of the easement named in the original deed, appellant contends that appellees, by their conduct, have forfeited their right thereto. Such is true, appellant contends because the appellees, in violation of the express condition *Page 436
on which the grant was made, left open gates along the private road.
But in reference to this point, it is clear that nothing done by Mathias Bina or the other appellees is sufficient to cause a forfeiture of that right. Although it is true that appellant's gates along the right of way were sometimes mistakenly left open, yet such conduct was apparently not for the purpose of being malicious or denying appellant's rights in the premises. Appellees' actions in thus leaving the gates open were based upon the misunderstanding that it was not necessary upon those occasions to shut them, because no stock at the time grazed or roamed in the fields. Manifestly appellees were mistaken about their duty to shut the gates because the condition in the deed in reference thereto is mandatory and in no way subject to appellees' discretion or judgment as to when or why the same should be closed. Even though there appears no necessity for closing the gates, nevertheless appellees must obey the mandate in the deed with reference to that condition of the grant. Without doubt appellees, when exercising judgment concerning the necessity for closing the gates, have persistently left the same open in violation of the deed's mandates. Therefore, they and each of them should be severally enjoined from hereafter leaving appellant's gates open along this private right of way.
Once more the judgment and decree of the district court is modified because that tribunal denied this injunction against appellees.
IV. Not only did appellees thus make themselves liable to an injunction, but appellant beyond question interfered with the easement belonging to the appellee Mathias Bina, and therefore also should be enjoined.
On various occasions, he obstructed the highway by putting thereon branches of thorny trees, parked his wagon across the same, distributed a box of nails in the road, dug ditches across the highway, and otherwise interfered with appellees' rights thereon. Obviously this was an interference with the easement belonging to the appellee Mathias Bina, and the district court properly enjoined the appellant from so doing. Bartels v. Woodbury County, 174 Iowa 82.
V. Complaint, however, is especially made by appellant because the district court permitted appellees to repair the road. *Page 437
Mathias Bina owns the easement, as above specified, and if the private way were not used also by appellant, the former would be duty-bound to make the required repairs thereon. 9 Ruling Case Law 794, sec. 51; Hastings v. Chicago, R.I. P. Ry. Co.,148 Iowa 390 (local citation 397); Jackson v. Bruns, 129 Iowa 616
(local citation 618); United New Jersey Railway Canal Co. v. Crucible Steel Co., 95 Atl. (N.J.) 243; Kepler v. Border,179 Iowa 318 (local citation 323). The thought is expressed in the Hastings case, supra, as follows, reading on page 397:
"* * * * the grantor of an easement consisting of a right of way in the absence of any express stipulation is under no obligation to maintain the right of way in suitable condition for use. He is bound not to obstruct it, but further than that its maintenance is left to the grantee."
Even though appellant likewise uses the right of way, there is no reason why the appellees, subject to the conditions hereinafter named, cannot reasonably repair the same suitable to the limited character of their easement. See Kepler v. Border (179 Iowa 318), supra; 19 Corpus Juris, 983, sec. 233; 9 Ruling Case Law 795; sec. 51, supra. When doing so, however, appellees cannot increase the burden on the servient tenement or unreasonably interfere with appellant's right also to repair the common way. Wells v. Tolman, 51 N.E. 271 (N.Y.); Brockschmidt v. Sanitary District of Chicago, 103 N.E. 243 (Ill.); Percival v. Williams, 74 A. 321 (Vt.). Accordingly the plowing and scraping done by appellees, and complained of by appellant, were acts within the rule permitting them to repair the private way. Because the appellees did thus repair the easement, appellant has no just ground for complaint.
The district court did not limit the said right of repair in the manner and way here confined, and therefore its judgment and decree is modified to that extent.
VI. It is asked by appellant that his rights in the premises regarding repairs be entirely protected. This private way is upon the land to which he owns the fee. Appellant, as well as the appellees, uses the private road in question, as before said. Hence, the appellant likewise is entitled to repair the easement so long as he does not: First, interfere with the right of *Page 438
the appellee Mathias Bina thus to do; and, second, render the private way less convenient or useful for the latter's purposes. See Kepler v. Border, (179 Iowa 318), supra; 19 Corpus Juris, 983, sec. 233, supra; 9 Ruling Case Law 795, sec. 51, supra. Neither of these parties, therefore, in improving the common way, must in any way disturb the improvement thereon made or being made by the other.
Resultantly each should be enjoined from interfering with or disturbing in any way such improvement made or being made on the easement by the other. To this extent the judgment and decree of the district court is further modified.
VII. There still remains a question concerning the amount of work and labor each party is to perform, and the extent of money outlay to be made by him in thus repairing the easement. Nothing in the grant of the easement determines the question of how the burden of repairs shall be distributed. Both litigants use the common way. Such was the contemplation of the grantors. By thus using the private road, each tends to cause the same to become unfit for the contemplated travel by the other. Mathias Bina, the appellee and easement owner, might repair the way and the appellant thereafter by use make the road unfit again for travel. A distribution of the burden of repair between the appellant and the appellee Mathias Bina would be equitable and just. See Kepler v. Border (179 Iowa 318), supra. Consequently under the circumstances such distribution should be made.
It appears from the record that the appellant does not use the private road so much as does the appellee Mathias Bina. Appellant, therefore, should bear a correspondingly lower proportion of the repair burden than that imposed upon the appellee, Mathias Bina. Of course, an exact distribution of the expense, and labor necessary to make reasonable repairs cannot be accomplished. An approximation only is all that can be achieved. Figuring the entire use of the road by both parties as amounting to one hundred per cent, appellant, according to the record, would seem to enjoy forty per cent of that amount and the appellee, Mathias Bina, sixty per cent thereof. So, appellant shall bear forty per cent and the appellee Mathias Bina sixty per cent of the work, labor, and money expenditures required for the reasonable repairs of the private road. The judgment *Page 439
and decree of the district court is modified accordingly. Because the judgment and decree of the district court is modified, the costs shall be taxed to the parties in the following proportions: Seventy-five per cent to appellants and twenty-five per cent to the appellees.
Wherefore, the judgment and decree of the district court as variously modified in the manner and way above set forth should be, and is, affirmed. — Modified and affirmed.
FAVILLE, C.J., and EVANS, MORLING, and GRIMM, JJ., concur.
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A rather extended statement of the record in this case is necessary to a clear understanding of the questions raised. In November, 1923, appellee filed a petition in two counts, bottomed on two promissory notes made by appellant to appellee, amounting to $7,336, drawing 8 per cent interest; and judgment was asked for $7,826.18. One H.H. Reed, on the 20th day of January, 1921, executed to R.W. Frank two promissory notes, for $2,000 and $2,770, respectively, due in one year, with 8 per cent interest. These notes were indorsed by R.W. Frank to appellee bank. J.H. Frank, in his counterclaim, sets up these two notes, and alleges, in addition to the above facts, that he is now the holder of said notes, on the back of which is the following indorsement: "Demand, notice and protest waived. [Signed] First National Bank of Renwick, Iowa, By R.M. Goettsch, Cashier." He demands that he be allowed, by way of counterclaim, on the indorsement of the bank on these notes, the sum of $5,636.35.
To this counterclaim appellee replied in two divisions: Admits its indorsement on the back of said notes; admits that said notes were surrendered and delivered by appellee to the appellant, J.H. Frank; denies that said notes were to be or were indorsed in blank by appellee to Frank; affirmatively asserts that said notes were to be and were delivered and transferred to J.H. Frank without recourse on the appellee; denies that said indorsement was made in the transfer of said notes to J.H. Frank; denies that Frank is entitled to any benefit of these indorsements by the bank.
In the second division it pleads that R.W. Frank was heavily indebted to appellee bank; that to secure a part of said indebtedness the bank held a chattel mortgage on 38 head of registered cattle and 14 graded cows belonging to Frank; that it held additional security for said indebtedness, among which were these two notes made by H.H. Reed to R.W. Frank, and also a life insurance policy in the sum of $10,000 on the life of said R.W. Frank, which had been assigned to appellee; that, when the two Reed notes were transferred to appellant, Frank indorsed and guaranteed said notes, and after the notes came into the hands of appellee bank, they were by the bank hypothecated with the Federal Reserve Bank of Chicago, and for that purpose the indorsement of the bank, by its cashier, was placed *Page 366
on the back of each of said notes; that later, by settlement with the Federal Reserve Bank, these two Reed notes were returned to appellee bank; that subsequently, when these Reed notes were turned over to J.H. Frank, appellee bank failed and neglected, through oversight, to erase its indorsement on the back thereof; that later, R.W. Frank transferred to appellee bank other notes in an amount equal to the sum owed on the Reed notes, but the Reed notes were still held by the bank as additional collateral security to the indebtedness of R.W. Frank; that, in January, 1919, R.W. Frank, J.H. Frank, and C.A. Packard, who was trustee under the chattel mortgage above referred to, and appellee bank had an oral agreement, the substance of which was that J.H. Frank would take over all of the property of the said R.W. Frank and assume his indebtedness to the bank, and appellee agreed to turn over to said J.H. Frank, without indorsement and without recourse to appellee, all of the collateral notes held by said appellee as security for the indebtedness of R.W. Frank, to cancel all notes evidencing the indebtedness of said R.W. Frank to appellee, and surrender the life insurance policy above referred to, in consideration of which J.H. Frank agreed to execute and deliver to appellee his notes for the full amount of the indebtedness owed appellee by the said R.W. Frank, less $500; that this agreement was carried out; that said agreement was subsequently reduced to writing, a copy thereof being attached to the pleading. It is further alleged that, through oversight and mistake in drawing said written agreement, the parties failed and omitted to incorporate therein that portion of the verbal agreement wherein it is agreed by and between all of said parties that all notes held by the appellee as collateral to the indebtedness of R.W. Frank were to be surrendered and delivered to J.H. Frank without indorsement by appellee, and without recourse on appellee; that, by oversight and mistake, said parties also failed and omitted to incorporate in said agreement that portion of the verbal agreement by the terms of which the insurance policy held by appellee was to be surrendered to appellant, J.H. Frank; that, as a part of the collateral of R.H. Frank held by the bank at the time, were the Reed notes in controversy; that the same were surrendered to J.H. Frank at the time of the surrender of said notes, and appellee failed, by oversight and mistake, to erase and expunge *Page 367
the indorsement of appellee thereon. Appellee prays that its indorsement on the back of said Reed notes, which is the basis of appellant's counterclaim, be canceled, expunged, erased, and annulled, and that said notes be reformed accordingly, and that said indorsement be stricken from said notes, and that the original agreement, above referred to, between the parties be modified, amended, and reformed, so as to embody the real contract between the parties. Whereupon, appellee filed a motion to transfer the case to equity, so far as it relates to the reformation of the contract and the expunging of the indorsement on the notes, for the purpose of trying the equitable issues tendered by the reply.
Appellant, J.H. Frank, then filed a motion and demurrer. The motion was to strike part of the allegations of Division 1 of appellee's reply, and the demurrer was to Division 2. The substance of the demurrer was that the facts alleged do not constitute a legal or enforcible contract between appellee and appellant, in that the alleged contract limiting the indorsement of the appellee on the Reed notes rested in parol, and that oral evidence cannot be introduced to modify, vary, or reform the original contract above referred to, or to cancel or expunge the indorsement of appellee bank on said Reed notes.
Some other grounds are set out in this motion, which need not be here stated.
Motion to transfer to equity was resisted, whereupon appellee filed an amendment to the reply, in which it elaborated more fully the transaction by which J.H. Frank assumed the indebtedness of R.W. Frank.
On March 4, 1924, motion and demurrer of the appellant to the reply were submitted to the court, and the demurrer was sustained to Division 2 of the reply. Whereupon, appellant gave notice of appeal, but did not perfect same. On November 13, 1924, appellee filed what is denominated "an amended, substituted and supplemental petition in equity," in which is contained an original suit on the two notes of Frank which were sued on in the original petition. It is alleged that these two notes sued on represent a part of the original indebtedness of R.W. Frank to appellee; that a contract of novation was made between R.W. Frank and J.H. Frank and appellee bank, a copy of which is attached to appellee's amended and substituted *Page 368
petition; that R.W. Frank's indebtedness to appellee at the time of this written contract exceeded $15,000; and that appellee held, as security for said indebtedness, notes aggregating $14,220, which notes were pledged to appellee by R.W. Frank, as collateral security for the indebtedness owed by Frank to appellee, and among which notes were the Reed notes in controversy herein. Among the terms of said written agreement is the following:
"It is further agreed between the parties hereto that the first party [appellee bank] will use its best efforts to collect on the notes just mentioned, and any and all sums received from the sum collected on the above notes from the makers of these notes are to be applied upon the indebtedness of J.H. Frank, as evidenced by the notes given by him to the First National Bank, of Renwick, Iowa, under this agreement."
It is further alleged that under this written contract the Reed notes remained as collateral security in the hands of appellee bank, and the pledge theretofore made by R.W. Frank was continued in effect by this agreement; that later, J.H. Frank obtained possession of the Reed notes for the purpose of exhibiting the same to his attorney, but that, in violation of his obligation and of the rights of the appellee in the premises, he neglected and failed and refused to return the pledged property to the possession of the appellee; that said pledged notes were the property of the appellee; and that, by virtue of the statutes of the state of Iowa, appellee is entitled to foreclosure of said pledge in an action in equity, and for judgment for the amount due from said drawer, and special execution for the sale of collateral and pledges. It then further pleads the pledging of the Reed notes with the Federal Reserve Bank of Chicago as collateral, and the indorsement of appellee bank thereon made at that time for the purpose of using the same as collateral with the Federal Reserve Bank. Appellee's filing includes a motion to transfer the cause to equity, for the purpose of foreclosing its lien on the Reed notes, etc., and asks a cancellation of its indorsement on the Reed notes.
Appellant resists appellee's motion to transfer to equity, on the ground that it is not entitled to file a second motion to transfer, and that the motion came too late. He also filed a resistance to appellee's application to file its amended, *Page 369
substituted, and supplemental petition in equity, on the ground, among others, that appellee is estopped by the record to plead herein the allegations set out, wherein it is stated that Frank surreptitiously obtained possession of the pledged property and failed to return the same to appellee. He contends that because, with full knowledge of all the facts, appellee, in its reply and amendment thereto, filed to appellant's counterclaim, alleged, under oath, statements which are at variance or contrary to the statements now made in the amended and substituted petition, appellee cannot thus now change its position. Appellant further contends that appellee elected to stand on its reply, and that appellant, J.H. Frank, has incurred expense defending against the claim set out; that appellee is not entitled to maintain a suit in equity to foreclose its lien on the Reed notes, because it was admitted in the reply that said securities were voluntarily surrendered to J.H. Frank, and thereupon appellee lost the advantage of any lien which it may have had on said notes; that, by reason of the facts alleged in its reply, appellee is estopped to claim a lien on said Reed notes; that the validity of the appellee's defense to appellant's counterclaim has been heretofore adjudicated in the ruling of the court to appellant's demurrer to appellee's reply; that appellee is not entitled to maintain an action in equity to cancel the indorsement upon the Reed notes, for the reason that the issue thus tendered has been heretofore adjudicated by this court against appellee, in that the same issue was heretofore tendered by appellee in its reply thereto, to which appellant, J.H. Frank, demurred, and said demurrer was sustained and appeal taken therefrom, and the same is still pending in this court; that, upon the whole record, appellee tendered no equitable issue.
On December 16, 1925, the court overruled appellant's motion to strike the amended, substituted, and supplemental petition, and sustained the motion of appellee to transfer to equity. Whereupon, appellant, Frank, served notice of appeal to the Supreme Court. Appellee thereupon asked for a default, for want of answer or other issue joined, and offered to prove appellee's case in the event that said cause was ordered. The court thereupon asked counsel for appellant if they desired further time in which to answer in this case. Counsel for appellant replied that they did not request any further time. *Page 370
Whereupon, appellee introduced his testimony, and appellant's counsel cross-examined. The court entered a decree granting appellee the relief prayed in its amended and substituted petition, after which a second notice of appeal was served by appellant.
The real question in dispute involved in this appeal is a very narrow one. It is insisted that, because appellee, in its original reply, pleaded that the Reed notes had been delivered to J.H. Frank, it cannot, by way of an amended and substituted petition, plead that Frank obtained the notes from appellee under a representation that Frank only wanted to use them temporarily, to exhibit them to his attorney; and that, after Frank thus obtained possession of them, he failed, neglected, and refused to return them to appellee. No one would contend that, if the allegations were that the bank held these Reed notes as collateral, and that by false representation J.H. Frank obtained possession of the same and refused to return them, the bank thereby lost its lien on such collateral security. If it did hold these Reed notes as collateral, then, under the statutes of Iowa, it had a lien thereon; and we do not understand counsel for appellant to contend that such a lien could not be enforced in equity. Hence, if the facts were as appellee alleged in its amended and substituted petition, there can be no question that the ruling of the court in transferring the case to equity was right, unless it is defeated by resort to the other ground raised in this case.
The question most seriously urged is that appellee, having alleged in its reply that it delivered the Reed notes to Frank in carrying out the terms of the written contract of novation (if it be such), thereby assumed a position with relation to said notes that it cannot afterwards gainsay in a subsequent pleading. We are cited to numerous cases in this court on the question of election of remedies, among which are Kearney Milling Elev. Co.v. Union Pac. R. Co., 97 Iowa 719; Ellis v. Annis Rohling Co.,187 Iowa 423; and cases of similar character. We are unable to see where cases of this character have any application. The appellee is asking nothing in its amended and substituted petition which it was not seeking in its reply, and the facts stated on which it seeks the same relief in both instances are practically the same, with the exception of the statements *Page 371
above noted. There is no effort whatever to change positions, so far as the remedy is concerned.
Our attention is called also to another line of cases in this state, a typical case being Wapello St. Sav. Bank v. Colton,143 Iowa 359, where the court announces the rule, broadly stated, that a litigant cannot try his case piecemeal by basing his action on a given set of facts, and, after meeting defeat in the lower court and also in the Supreme Court, on an appeal, then again, on a retrial of the case by the lower court, assume an inconsistent position; or, as stated in the opinion, he " * * * will not be permitted to experiment with the court in that way. He cannot first blow hot, and, if that does not succeed, try conclusions on blowing cold." The same doctrine has been recognized in Zalesky v. Home Ins. Co., 114 Iowa 516; City ofSioux City v. Chicago N.W.R. Co., 129 Iowa 694; Chicago, M. St. P.R. Co. v. Hemenway, 134 Iowa 523.
Had appellant followed up his original notice of appeal in the first instance, and the case had finally been decided in this court, we would have a different question; but he did not do this in the instant case, but elected to waive his notice of appeal and file an amended and substituted petition.
The Colton case, however, it might be noted in passing, is not authority, in that it was an affirmance by operation of law, this court being equally divided on the question involved.
We do not care to pronounce the rule that, where a person pleads certain facts, he cannot afterwards, in the same trial in the same court, change his pleadings to conform to the actual facts in the case, even though it results in a statement which is directly contrary to what he had in his former pleadings. The fact that it might, as a practical proposition, put him into a very undesirable position in the submission of his case, by reason of the statements in the former pleading, is a question merely of the weight of testimony, and does not reach the heart of the lawsuit. In other words, the fact that, in the trial of the case, he was confronted with statements made in a former pleading, which has been stricken or withdrawn, or passed out of the case as a pleading, by reason of an amended and substituted pleading, is merely an evidentiary question, and not one of controlling importance on which it could be said that the rule of election or the rule of estoppel by pleading can operate. *Page 372
We are contented with the ruling of the district court, overruling the motion to strike this amended and substituted petition, and also the ruling transferring the cause to equity. — Affirmed.
EVANS, C.J., and De GRAFF and MORLING, JJ., concur.
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The record is voluminous and the exhibits many, presenting a cause of some difficulty. But since the case presents matters familiar to the interested parties no good purpose would be served by an extended narrative of the facts.
All of the stock of the Corporation was owned by members of the Simmer family, the principal stockholders being Leonard *Page 1043
and Agnes, who, during most of the time the transactions under scrutiny occurred, were husband and wife. The other stockholders had only nominal holdings and they will have no further attention herein. At the outset it should be said that we concur in the conclusions of fact reached by the trial court. There is little, if any, difference between the parties as to the facts and it is only the legal results which properly follow that were the subject of discussion below and which are before us now.
There were involved ten pieces of real estate and one item of personal property, a truck. With the conclusions of law of the trial court with reference to the title of eight of the parcels of real estate and the truck we fully agree. Some of these parcels were never in the name of the Corporation; and, where its moneys were used to make improvements or payments toward the purchase price, the Corporation was reimbursed in rents or by advances made by appellees Leonard and Agnes Simmer. In none of these transactions do there appear any circumstances about which appellants may rightfully complain. The State of Iowa took judgment against the Corporation on August 29, 1938, for the sum of $1,506.20, and on the same day the other appellant had judgment for $524.32. When the Corporation went into bankruptcy does not appear but the intervener was not appointed trustee until January 5, 1939. He joined in the relief asked for by plaintiffs and joins in this appeal.
[1] Two of the properties were at one time in the name of the Corporation. They are described in the record as "Main and Vine Street — Ottumwa, Iowa, Property" and "Main and Washington Street Building — Simmer Building — Ottumwa, Iowa." As to these we think the trial court was in error. These, we hold, were liable for the unpaid debts of the Corporation, subject to any outstanding mortgages of record. What the equities in these properties are does not appear. The "Main and Vine Street" property was deeded to the Corporation on October 21, 1931. The "Main and Washington Street" property was deeded to it on July 12, 1936. Both deeds were of record, thus affording an apparent basis for credit until July 1, 1937. On that day, without present consideration, the Corporation deeded to appellee Leonard. At the time of the commencement of this action title stood in the name of Agnes Simmer, who acquired such title *Page 1044
by her transfer under circumstances which would not make her a bona fide purchaser. Appellants insist that they are entitled to have these properties subjected to the unpaid debts of the Oil Corporation. Appellees deny, urging that they legally have claim to these properties because transfers were made in satisfaction of money advanced by them to the Corporation; and they say that even though the Corporation deeded to Leonard, president and director, this was a valid legal transaction. The trial court took this view and we think therein erred. It must be admitted that some of our earlier cases tend to support the decision below. Appellees cite the following authorities in support of their contention that a corporation may prefer a creditor even though he be an officer or director:
American Exchange Nat. Bk. v. Ward, 8 Cir., 111 F. 782, 55 L.R.A. 356; Brown v. Grand Rapids Parlor Furn. Co., 6 Cir.,58 F. 286, 22 L.R.A. 817; Rollins v. Shaver Wagon Carriage Co.,80 Iowa 380, 45 N.W. 1037, 20 Am. St. Rep. 427; Warfield, Howell
Co. v. Marshall County Canning Co., 72 Iowa 666, 34 N.W. 467; Garrett v. Burlington Plow Co., 70 Iowa 697, 29 N.W. 395, 59 Am.Rep. 461; Buell v. Buckingham Co., 16 Iowa 284, 85 Am. Dec. 516.
These cases do declare generally the right to give such preference, but our later cases, while not overlooking the prior decisions, have limited their apparent scope. In discussing the so-called "trust fund" doctrine, we said in Luedecke v. Des Moines Cabinet Co., 140 Iowa 223, 229, 118 N.W. 456, 458, 32 L.R.A., N.S., 616, 621:
"We do not recognize the trust-fund doctrine to the extent that it has obtained in some of the courts; but are of opinion that corporate creditors are entitled in equity to the payment of their debts before any distribution of corporate property is made among the stockholders, and recognize the right of a creditor of a corporation to follow its assets or property into the hands of anyone who is not a good-faith holder in the ordinary course of business."
Certainly the appellees Simmer are not good-faith holders "in the ordinary course of business." We do not wish to be understood as charging that they were guilty of any actual or intentional *Page 1045
fraud. The record excludes this. Agnes Simmer put into this Corporation upwards of $20,000, even mortgaging the homestead to keep the business going. If there be any fraud in the transaction it is in a strictly legal sense and not actual fraud with which we are dealing.
We followed the Luedecke case, supra, in Andrew v. American Sav. Bk. Tr. Co., 219 Iowa 1059, 258 N.W. 921. See also Bates v. Brooks, 222 Iowa 1128, 270 N.W. 867; Erhard v. Boone State Bank, 8 Cir., 65 F.2d 48; and West Texas Ref. Dev. Co. v. Commissioner, 10 Cir., 68 F.2d 77. Some of these cases deal with transfers of property from one corporation to another. But the principle involved would seem to be the same, if the transfer were from the corporation to individuals, as here. Under the authorities cited, the properties above described should be made subject to the debts held by appellants and other creditors, if any there be.
[2] The arguments of parties present another question. It is this: Assuming that one corporate officer may be given security over others, can this be done where the security is given for a pre-existing debt? There is a difference of opinion in the various jurisdictions, some holding that such security or preference may be given only for a contemporaneous loan or advance to the corporation. We think this should be the rule as better calculated to prevent fraud in the management of corporate property. See note to Jackman v. Newbold, 8 Cir., 28 F.2d 107; 62 A.L.R. 729 at page 738, also references therein contained, and supplemental notes.
[3] We turn now to the claim that appellees should be made personally liable. We are satisfied with the ruling of the trial court that they should not be. There was admittedly much laxity in keeping the corporation books. But this is not surprising when it is kept in mind that this was a family affair without outside stockholders. And if it appeared that sometimes the entries were not made as correct bookkeeping would require, the books do, nevertheless, set forth sufficient facts to distinguish the corporate affairs from the private interests of the Simmer family.
Among the expressions in the opinion of the trial court which meet our approval we quote the following: *Page 1046
"Upon the claim of plaintiffs and intervener that the corporation and Leonard Simmer and Agnes Simmer were in fact one entity and that the debts of the corporation should be held to be the debts of Leonard and Agnes Simmer this court does not believe that the evidence would justify such a holding."
Our conclusion is that the trial court was right in its findings and decree except as to the "Main and Vine Street" property and the "Main and Washington Street" property. As to these, any equities there may be above existing mortgages should be applied to the payment of unpaid creditors of the Simmer Oil Corporation.
It follows that the cause must be, and it is, remanded for further proceedings in accordance herewith. Other creditors, if there are any, should be brought in as parties so their interests may be protected. Affirmed in part; reversed in part; and remanded.
BLISS, C.J., and MITCHELL, GARFIELD, OLIVER, and MILLER, JJ., concur.
WENNERSTRUM, J., takes no part.
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The appellant transacted business under the name and style of the Western Maintenance Company. On April 8, 1924, the appellant entered into a written contract with the appellee for furnishing a material known as Tarvia, and spreading the same upon the streets of appellee city. Pursuant to said contract, the appellant furnished material and placed the same upon the streets of said city, covering approximately ten miles of said streets. The total amount due for said work and material *Page 560
under said contract was $28,732.48, and the appellant has been paid the sum of $8,302.96. The work was completed on or about July 8, 1924. On July 3, 1924, one Brinker and others commenced an action in the district court of Lee County, Iowa, wherein the appellant and the appellee were made parties, and wherein the plaintiffs alleged that they were residents and taxpayers of said city, and, among other things, alleged that the contract between the appellant and the appellee was void, the same not having been adopted as provided by the ordinances of said city. In said action, which we shall refer to hereafter as the Brinker case, the plaintiffs prayed a decree of court adjudging said contract and all proceedings thereunder to be null and void, and that the said city and its officers be enjoined from paying to this appellant "any part of the contract price of said work, or any other sum by reason of said purported contract, or of anything done or claimed to have been done thereunder," and for general equitable relief. This appellant and the appellee filed separate answers in said Brinker case, and the cause proceeded to trial. The court decreed that the said contract between appellant and appellee was null and void, and said decree contained the following provisions:
"It is further ordered, adjudged and decreed, that the defendant City of Keokuk and its officers, agents, and employees are hereby each and all of them perpetually enjoined and restrained from making any payments or drawing any warrants for the payment of any sum or sums whatever to the defendant Hargrave, or to any other person, for or on account of the said purported contract or for any of the Tarvia therein mentioned or for any of the said street improvements, work, or materials therefor or work done under said purported contracts or resolutions.
"However, the attention of the court having been called to Cause No. 14067 pending in this court prior to this trial, this decree is entered without attempting to define what rights at law, if any, the defendant Hargrave may have with respect to so much of the contract compensation, if any, as remains unpaid."
Reverting now to matters involved in the instant case, on September 16, 1924, the appellant instituted this action, which is *Page 561
in two counts, in one of which appellant seeks to recover under said contract for the amount claimed to be due thereon. The second count is predicated on a claim to recover at law, independent of the contract. This action is the No. 14067 referred to in the decree in the Brinker case. The appellee pleads the decree in the Brinker case as an adjudication of the appellant's right to recover in the instant case. The appellant concedes that the decree in the Brinker case adjudging the contract in question to have been null and void is a bar to appellant's right to recover upon Count 1 of his petition in the instant case, under which recovery is sought on the contract. But it is the appellant's contention that the decree in the Brinker case is not res adjudicata as to the appellant's right to recovery at law, independent of the contract. In its final analysis, the sole question for our determination is whether or not the decree in the Brinker case is res adjudicata of appellant's claim to try the issue of his right to recover at law, independent of the contract. The question involves a construction of the terms of the decree entered in the Brinker case, the vital portion of which we have quoted supra. We deem it unnecessary to set out at length the pleadings in the Brinker case. Primarily, the attack in said cause was directed against the contract. It was alleged that the contract was null and void, and that it was obtained by misrepresentation and fraud, and that the property of taxpayers was not subject to assessment for the costs of said improvement. Various amendments were filed, but the concluding prayer of the plaintiffs in said action was as follows:
"Wherefore, plaintiffs pray a decree of this court that the said pretended contract between the defendant Hargrave and said city be declared null and void, and that all proceedings thereunder and all assessments made for work done thereunder be declared null and void and canceled, and that the pretended proceedings based on certain resolutions for oiling the streets of said city and of date June 10th, 1924, and introduced in evidence, are null and void, and that the defendants, City of Keokuk and its officers, be enjoined from paying to the said Hargrave any part of the contract price of said work or any other sum by reason of the said purported contract or of anything done or claimed to have been done thereunder; and these plaintiffs *Page 562
pray for such other and further relief as may be equitable in the premises."
The appellant contends that the terms of the decree are broad enough to constitute an adjudication of the right of the appellant to recover at law, independent of the contract, if such right were, in any event, available to him. We do not so construe the decree. Its purport must be determined in the light of the issues and the relief sought in said cause. The attack of the plaintiffs in the Brinker case, as taxpayers, was directed against the contract, which it was claimed had been unlawful. The prayer of their petition above quoted is consistent with the pleadings, and the decree, when considered in the light of the pleadings and the prayer, is also consistent. The appellee claims that the appellant's right to maintain an action at law, independent of the contract, is adjudicated because of the provision in said decree enjoining the appellee city from making any payments to the appellant or any other person, "for or on account of the said purported contract, or for any of the Tarviatherein mentioned, or for any of said street improvements, work, or material therefor, or work done under said purported contracts or resolutions." In the light of the pleadings and of the recitals in the decree itself, including the subsequent recital expressly reserving to the appellant whatever rights he might have under the pending suit, we think the decree, when properly construed in the light of the issues, did no more than enjoin the city and its officers and agents from making any payment of any sum whatever to this appellant for work or material furnished by the appellant to the said city under and by virtue of the terms and provisions of said contract. Such a construction is consistent with the pleading in the said Brinker case and with the prayer of the petition in said action, and is, we think, a fair and reasonable construction of the terms of the decree itself. This is especially true in view of the further and final provision of said decree, which expressly reserves to this appellant whatever rights he might then have had in this instant action then pending at law.
A decree in equity is to be given construction in the light of the circumstances appearing of record under which it was entered.
"The decree will be construed and restricted in accordance *Page 563
with the pleadings, and even with reference to other parts of the record." 16 Cyc. 498.
See, also, McCullough v. Connelly, 137 Iowa 682.
The express reservation in the decree itself was as much resadjudicata as any other matter determined by said decree. The rule is well stated by the court of civil appeals of Texas, inWhite v. Bell, 290 S.W. 849, as follows:
"It seems to be a well established principle of law that a judgment rendered by a court is binding on the parties to said litigation in so far as the judgment disposes of the questions that were put in issue. Grayson County Nat. Bank v. Wandelohr,105 Tex. 226 (146 S.W. 1186). It is equally well established that, where any matters are left open by a judgment, or the judgment specifically reserves from its operation any question that could have been litigated, the judgment is not a bar to a future adjudication of the things that were specifically eliminated from the former judgment, but, on the contrary, the reservation itself becomes res judicata, and prevents the raising of any question as to the right to bring or maintain such subsequent suit."
To the same effect, and recognizing and sustaining said rule, see, also, State ex rel. Golden Valley County v. District Court,75 Mont. 122 (242 P. 421); Bodkin v. Arnold, 45 W. Va. 90
(30 S.E. 154); Hardin v. Hardin, 26 S.D. 601 (129 N.W. 108); Ahlersv. Smiley, 163 Cal. 200 (124 P. 827). See, also, 34 Corpus Juris 797, Section 1217.
In the early case of Carl v. Knott, 16 Iowa 379, we said:
"But it is a very different thing when, in a decree in chancery, it appears affirmatively that the rights of the parties were adjusted upon a ground which neither in its general or special statement includes the matter now in controversy, but which, on the contrary, excludes and leaves it open."
In Merrill v. Tobin, 82 Iowa 529, we said:
"Where, in a decree in chancery, it appears affirmatively that the rights of the parties were adjusted upon a ground which neither in its general nor special statement includes the matter *Page 564
now in controversy, but which, on the contrary, excludes and leaves it open, the former decree is not an adjudication."
See, also, Hart v. Nonpareil P. P. Co., 109 Iowa 82;Goldsmith v. Goldsmith Bro., 140 Iowa 12.
It follows that the judgment of the trial court dismissing the appellant's petition upon the pleadings in the instant case was erroneous, and that the appellant was entitled to try the issues presented by the second count of his petition, and that the decree in the Brinker case was not a bar to his right to try said issues. Whether or not the appellant can maintain the cause of action pleaded in said second count of his petition is a question not before us, and upon it we make no pronouncement. The judgment of the district court must be, and it is, — Reversed.
ALBERT, C.J., and STEVENS, De GRAFF, KINDIG, and WAGNER, JJ., concur.
EVANS and MORLING, JJ., dissent.
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At about 1:00 p.m. on December 29, 1937, defendant was driving a Ford "pick-up" automobile northwards on Tenth street in the city of Eldora. As he was approaching the intersection of that street with Fourteenth avenue, that extends east and west, plaintiff's decedent whose age was 7 years 4 months and some days, lying flat on a hand sled, was coasting down Fourteenth avenue from the west toward the same intersection. Decedent's course was along the south side of Fourteenth avenue where there was a strip of snow 6 or 8 feet in width next to the curb. North of the strip of snow the paving of the avenue had become bare, the snow that had been thereon having melted away. There was also a bank of snow on the parking that was between the south curb of the avenue and the sidewalk. It extended westerly up the hill from about the west line of Tenth street and was 3 feet or less in height. In the vicinity of the south line of the intersection the decedent, traveling on his sled east or a little southeast at a speed of 20 or more miles per hour, struck the left rear wheel of defendant's automobile as it traveled north, resulting in such injuries to the child that his death ensued almost immediately. This action is for recovery of damages to decedent's estate, plaintiff-administrator claiming that defendant's negligence was the cause of the loss of decedent's life. At the close of the evidence defendant's motion for a directed verdict was sustained. On the verdict thereupon returned a judgment was entered against plaintiff. Therefrom he has appealed.
[1] Plaintiff assigns as error the ruling on the motion for directed verdict. One of its grounds was that the evidence in the record would not warrant a finding by the jury that defendant was negligent in any of the respects specified by plaintiff, or a finding that any negligence on the part of defendant contributed to decedent's injuries. Plaintiff urges that the motion should not have been sustained on this ground because the evidence showed negligence in that at the time of *Page 1275
the accident defendant was driving at an excessive speed, lacked control of his car, failed to maintain a proper lookout, and failed to give warning of his approaching the intersection.
Turning to the record it discloses that defendant was driving 20 miles per hour in a residential district up to the moment he saw decedent coming into the intersection. He then soon stopped, but the accident had occurred. Defendant had all the control of his car that was incidental to that speed. He was observing the street ahead and Fourteenth avenue and noted there were neither vehicles nor pedestrians thereon. As he drove toward the intersection any pedestrians or vehicles on Tenth street or Fourteenth avenue would have been readily visible and there was no obstruction of view requiring giving a signal of approaching the intersection. The testimony established the fact that as defendant approached the intersection he was prevented by the snow bank from seeing decedent as he came down the hill. The witness most favorable to plaintiff stated that at a point about 25 feet south of the south line of the hill one could look up the hill and see what was there. The evidence further shows that defendant first saw decedent just as the latter was entering the intersection from the west, decedent being then 3 or 4 feet out from the south curb and 2 or 3 feet east of the east line of the sidewalk on Tenth street. Defendant was then approximately even with the south edge of the sidewalk that is located along the south side of Fourteenth avenue.
[2] These facts were quite insufficient to establish that defendant was negligent in any of the respects plaintiff specified. But plaintiff says there were surrounding circumstances known to defendant and that these determined what was reasonable care on his part. The circumstances were these. For many years it had been the practice of those in authority to permit children to coast on this hill, and each time, while permission continued, barricades were maintained on Tenth street at the intersection in question. There had been coasting recently permitted but the snow having in large measure melted, the barricades had been taken down on the day before the accident and the middle portion of the paving up and down the hill was bare of snow. Plaintiff urges that these facts, known to defendant, imposed the duty on him to anticipate that some child *Page 1276
might be coasting as decedent was doing, and to be prepared for that possibility by driving at less speed and having better control, keeping better lookout and sounding a warning of approach. In Webster v. Luckow, 219 Iowa 1048, 258 N.W. 685, this court adopted the Pennsylvania rule that a driver of an automobile may not assume that a child under the age of 14 years in plain view of the driver will not move from a position of safety outside the pathway of the vehicle and into a place of danger in such pathway. But in connection with so doing the court declared itself as not holding that such driver is under any obligation to anticipate that some child not in plain view upon a street or public road will suddenly and unexpectedly dart out from a place of concealment into the pathway of a driver's vehicle. To an ordinarily prudent person the disappearance of snow from the hill until it was largely bare and the taking down of the barricades would appear to afford assurances that the road was open to his ordinary use. And we think it would be an assurance sufficiently dependable that he would not anticipate that a child would dart out upon a sled as happened in this case, despite all that appeared to indicate to the contrary. If so, defendant's conduct was not below the usual standard of ordinary and reasonable care. The ground that has been discussed warranted the ruling on the motion for directed verdict.
[3] During the trial plaintiff offered the testimony of one McCall, who was neither a peace officer nor other public official. He testified he overheard statements made to the sheriff of the county by defendant while the latter was reporting the accident to that official immediately after its occurrence. The witness being then asked what defendant said to the sheriff about the accident, objections to the question founded on sections 297 and 302, chapter 134, Acts of the Forty-seventh General Assembly, were made by defendant, and sustained by the court. This ruling plaintiff assigns as error.
Section 297 requires the driver of a vehicle involved in an accident resulting in injury to or death of any person to report the accident together with information respecting the injuries to one of certain peace officers including the sheriff of the county in which the injury took place. By the Act the failure to so report is made an offense. Section 302 is in these words: *Page 1277
"Sec. 302. Reports confidential. All required accident reports and supplemental reports shall be without prejudice to the individual so reporting and shall be for the confidential use of the department except that the department shall disclose the identity of a person involved in an accident when such identity is not otherwise known or when such person denies his presence at such accident. No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident, except that the department shall furnish upon demand of any person who has, or claims to have, made such a report or, upon demand of any court, a certificate showing that a specified accident report has or has not been made to the department solely to prove a compliance or failure to comply with the requirement that such a report be made to the department."
Under this statute the report was to be without prejudice to defendant. It was not to be used as evidence in any trial, civil or criminal, growing out of the accident. But it would have been so used had not the objection been sustained. The question called for what was said in making the report. Obviously, what was said was the report. The court rightly sustained the objection. Finding no error the judgment is affirmed. — Affirmed.
HAMILTON, C.J., and HALE, BLISS, MILLER, MITCHELL, OLIVER, and SAGER, JJ., concur.
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The appellant is the daughter of C.E. Doty and Rachel Belle Doty, both deceased. She claims to have rendered services for her parents as housekeeper and nurse during three distinct periods, one of a year and a half, commencing in 1915, one of nearly two years, commencing in 1918, and a third, after an interval of three months, of over two years, and until the death of both her parents, under a parol contract with her mother, the owner of the property, whereby she was to receive *Page 1048
therefor the entire estate, consisting of real and personal property, at the death of her parents.
There is little or no question of the rendition of the services. The parents were both invalids for many years, and required constant care and attention. It is established without serious contradiction that the plaintiff, during the times alleged, lived with them, managed the household, did the cooking and housework, and gave her parents personal care of an exacting and unpleasant character, such as their invalid condition required. It is also shown that, when not living with them, she was there very frequently, working and caring for them. The difficulty is in respect to the proof of the alleged contract.
The law is well settled that such a contract, when it has been taken out of the statute of frauds by performance by the claimant, will be enforced; but the contract must be established by evidence that is clear, satisfactory, and convincing. Groh v.Miller, 196 Iowa 1367, and cases there cited.
The testimony relied upon to establish the alleged contract relates to numerous declarations of the deceased mother to the effect that the appellant was to have what was left when she and her husband were gone; that she wanted to make a deed for appellant, so that she would have whatever was left; and that, if appellant would stay with them as long as they lived, she could have what was left. Some of the declarations as testified to were to the effect that appellant and her daughter should have the property.
Appellant has been married twice, and the daughter was born during the first marriage. The evidence shows that the first period of her service for her parents was while she and her first husband were living together. Decedents were then living on a farm, and when the father became ill and incapacitated, appellant and her husband moved into the house with them. Appellant did the housework, and her husband managed the farm. Some of the declarations testified to were made at that time. Later, the farm was sold, and decedents moved to the town of De Soto. Appellant was then living with her husband in De Soto. She procured a divorce, and continued to live in the house she and her husband had occupied for a time. In *Page 1049
March, 1918, she and her daughter went to live with decedents. Concerning this she testified:
"I had no way to support myself, and was going to sell my goods and go to work. I had what I thought was a real good position to go to. I was going to go away; and when I went down in the afternoon with the last of the things, they [her parents] did not have any hired girl. I had a job of work somewhere else; was going to Minnesota. Had arrangements made with a family that was going to move up on a farm in Minnesota from Nevada. I couldn't very well go and leave the folks without a hired girl, and they couldn't get along without one, and I finally stayed."
She and her daughter continued to live with her parents until her marriage with her second husband, in January, 1920. After this marriage they lived with her husband's parents for three months. She then returned to the home of her parents for a few days, intending at the time to take a position at Floyd, which she had obtained by advertising. She testified:
"Something happened that changed that plan, and instead of staying only a few days, I continued to stay until their death."
Appellant's mother died in September, 1922, and the father, a few months earlier.
During all the times appellant lived with her parents, her daughter was with her, and they both received their support in the family, save for some money appellant received from her husbands. She received $35 per month from her first husband during a year he was in the army, and some money for clothing, and also some groceries from her second husband. For the latter she filed a claim against her mother's estate. Appellant testified that her mother generally paid her $3.00 a week while she was there; that she paid her $3.00 a week for the period immediately following her divorce from her first husband; that for three weeks she paid her $17.50 per week, and for a time $10. There was testimony from other members of the family that she admitted that her mother paid her $10 per week.
After the death of her mother, appellant filed a claim against her estate for services covering the periods of her residence *Page 1050
with her parents, in the sum of $7,420. This claim she dismissed before the commencement of this action.
There is no occasion to repeat here our frequent observations upon the unsatisfactory character of the evidence of verbal admissions or declarations of a deceased person to affect the title to real estate, or upon the clear and convincing character such proof must possess, to accomplish that result. The appellant's conduct in leaving her parents on her second marriage and in twice seeking other employment tends strongly to contradict any claim of a binding contract prior to the last period of her service. The testimony of appellant's daughter, Pauline, is to the effect that, after the death of C.E. Doty, the grandmother wanted to "fix out a deed for mamma and I to have everything that was left of the properties," and that she said she wanted to do this because appellant had stayed with her nearly always, and had cared for them when they were sick, and she thought appellant deserved it. This indicates the purpose of the deceased to reward appellant for faithful services; not to convey property in pursuance of a binding contract. The same thing is true of many of the other declarations testified to. The fact that, in addition to receiving support for herself and daughter in the family, she received weekly wages, tends strongly to contradict the claim that her services were in consideration of the entire estate of deceased. Her claim filed shortly after the death of her mother, to recover the reasonable value of her services, is also contradictory of the contention that they were rendered under a contract for the specific consideration now claimed.
We have examined the record with care, and reach the conclusion that the evidence falls short of establishing with that clearness and certainty required in such cases a definite and enforcible parol contract to convey the property in question. The decree below is, therefore, — Affirmed.
FAVILLE, C.J., and STEVENS and De GRAFF, JJ., concur. *Page 1051
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As above noted, a jury was waived, and the case tried to the court; and, this being a law action, the decision of the court has the force and effect of a verdict of a jury as to all fact questions involved. It is also to be kept in mind that this is an action between the payee of the notes in controversy and the immediate indorser.
We have had much difficulty in determining the facts and issues in this case, as the evidence covers a long series of transactions, not only with the Farmers Savings Bank of Shelby, but with another bank, in which Pomeroy, the plaintiff, was an officer. About 100 promissory notes were introduced in evidence and were referred to in the testimony; also many bank records. At many places in the testimony, the witnesses referred to promissory notes which were in no way identified, and we are unable to determine to which of the various notes their testimony applies; and equally so as to many references made to various books of the bank.
So far as we are able to understand this record, the district court was warranted in reaching the following conclusions as to the facts: One C.E. Caldwell had been a consistent and persistent borrower, not only from the defendant bank, but from the Corley Farmers Savings Bank, of which Pomeroy was also an officer. These borrowings extended over a number of years as to both banks; and, so far as we are able to determine from the record, some of Caldwell's notes were transferred from one bank to the other. His borrowings at times exceeded the limit which banks were allowed to loan to any one individual, and the excess loans to him were, under the direction of the state banking department, required to be taken care of and taken out of the bank. Up to 1921, the plaintiff, Pomeroy, had, for a number of years, been cashier of defendant bank, and on January 1, 1921, he became president of said bank, and sold his stock therein in the latter part of 1922.
Caldwell owned two farms: one consisting of over 500 acres, *Page 1312
known as the "Home Farm," and another consisting of 160 acres, referred to in the record as the "Heise Farm," with which latter farm we are not concerned. The Heise Farm was covered by a mortgage to the defendant, which will hereinafter be more fully explained.
In December, 1917, Caldwell had taken care of about $25,000 of his indebtedness to the bank with a loan on the Home Farm. Aside from this, he was indebted to the defendant bank on various notes in the amount of about $14,000, much of which was in excess of the limit the bank was allowed to loan to him. At that time, the plaintiff, Pomeroy, turned in to the bank notes and securities belonging to him personally, and took credit therefor in the sum of $17,000, and on the same day, drew against his account a check in the sum of $17,000 in payment for the Caldwell notes. Later, other indebtednesses arose, and, on the 14th day of August, 1920, he executed to defendant bank a mortgage on the Heise farm, also notes, for $14,000. This mortgage covered an indebtedness of $4,000 owed to Pomeroy personally, $6,000 of which Caldwell owed the bank on a note which Pomeroy's daughter had taken out of the assets of the bank by putting up her individual note therefor, and $4,000 still due the bank. Pomeroy's $4,000 above referred to, covered by said mortgage, consisted of two notes of $2,000 each, which are the subject of this action. One of these notes was indorsed to Pomeroy by the defendant, Farmers Savings Bank, "By R.M. Pomeroy, President." The other bore the indorsement, "Pay to the order of John Kern," signed "Farmers Savings Bank, by R.M. Pomeroy, President;" and plaintiff alleges that he is now the owner and holder of said note by purchase thereof from John Kern and the Farmers Savings Bank of Shelby, Iowa. The plaintiff's allegation is that the defendant sold and delivered the first note to the plaintiff. As to the second note, the allegation is that the defendant sold and delivered said note to one John Kern. The record is very hazy and unsatisfactory relative to this mortgage and these notes, but it may fairly be inferred therefrom that, when security was demanded from Caldwell for these various amounts, a single mortgage was executed, accompanied by new notes, to cover the entire indebtednesses owed both to the bank, to the plaintiff, and to his daughter; that, after the various indebtednesses were thus secured, each party — the *Page 1313
bank, the plaintiff, and his daughter — had the new notes representing their respective shares of the indebtedness all secured by this one mortgage.
The defendant bank asserts, and the evidence in the case supports its assertion, that at no time was it the owner of, nor did it have any interest in, these two notes on which suit is brought. All it claimed at any time was the $4,000 which was still an indebtedness due to it at the time the mortgage was given. Since the bank in fact never owned nor had any interest in these notes on which plaintiff sued, the indorsement of its name on said paper would be without consideration. That this was the real situation we have no doubt, under the record. At the time the mortgage was executed, the bank claimed that there was due it $4,000, although the mortgage was executed for $14,000. A prior mortgage on the Heise Farm was then foreclosed, and the land sold, and the defendant redeemed from the sale. At this point, the plaintiff, Pomeroy, asserted that he had some rights under the mortgage, and a contract was entered into between him and the defendant, by which it was agreed, in substance, that the bank would sell this land acquired by the redemption to Pomeroy, — defendant having, in the intermediate time, secured a deed for the same, — for an amount in excess of $18,000. In determining this amount, the bank included the amount paid out for redemption, interest, taxes, costs, etc., and the $4,000, with interest, which the bank still held against Caldwell; whereupon, under the contract, this land was deeded to Pomeroy, who executed a mortgage on said land for the above amount. At the same time, Pomeroy's interest in the bank was purchased, and he retired, both as a stockholder and an officer of the bank. It would be rather strange if, in the carrying out of this contract and the retirement of Pomeroy from the bank, he made, in the settlement, no reference whatever, nor any claim, to the notes in controversy herein. Again we call attention to the fact that neither Caldwell nor any third party is involved in this litigation, it being solely between the original parties, the bank, and Pomeroy. Quite elaborate arguments are presented on the right of the president of a bank to indorse paper to himself; also whether any officer of a bank has a right to sell and indorse paper without the action of the board of directors. We *Page 1314
pass all of these questions, as we do not deem them necessary to a determination of the case.
As to the first note sued on, the plaintiff alleges that the defendant bank sold and delivered this note to him. Having reached the conclusion that the defendant bank was never the owner or holder of this note, and never had any interest therein, we find that the plaintiff's allegation in this respect is not supported by the evidence.
As to the second note, plaintiff's allegation is that the bank sold and delivered the same to one John Kern; and the evidence wholly fails to show that the bank ever owned or had any interest in this note, and also abundantly shows that Kern never purchased this note, or, in fact, had anything whatever to do with the same. He specifically testifies to this fact, and no one contradicts him.
Lastly, the purpose of this lawsuit is to hold the defendant bank liable on its purported indorsement on these notes. It is too fundamental to need citation of authority that an indorsement must be supported by a consideration, and want of consideration is always a good defense when suit is brought on an instrument or on an indorsement thereon. Section 9488, Code of 1924, reads as follows:
"Absence or failure of consideration is matter of defense as against any person not a holder in due course, * * * "
The whole record shows that there was no consideration whatever for the purported indorsement of the defendant bank on either of these notes. Plaintiff therefore must fail, not only for want of proof supporting the allegations of his petition, but also because of a lack of any consideration supporting the alleged indorsement on these notes on which he bases his action.
The court trying this case below dismissed the plaintiff's petition, and we are abidingly satisfied with the conclusions reached by him. — Affirmed.
EVANS, FAVILLE, KINDIG, and GRIMM, JJ., concur. *Page 1315
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[1] On the 22d day of June, 1929, in the district court of Pottawattamie county, a divorce decree was granted to the plaintiff from the defendant. Under the stipulation certain personal property was to be turned over to the defendant and the plaintiff was to pay $30 a month for support and maintenance of their one child; the defendant was to have the care and custody of the minor child, and it was to reside with her and her mother in Council Bluffs, Iowa.
On the 23d day of June, 1932, the plaintiff, W.C. McDaniel, filed application for modification of this decree, claiming a change of circumstances. In August following, a resistance was filed by the defendant and hearing was had thereon, and on the 25th day of January, 1933, the aforesaid decree was modified ordering the child turned over to the plaintiff, and the plaintiff was relieved from the further payment of alimony provided in the former decree. From this modification appeal was taken to this court.
This being a proceeding in equity, same is triable anew in this court. The abstract is very scanty. An amendment was filed; but, taking as we must the abstract and the amendment as constituting the record, we are unable to say why the district court, under such showing as is set out therein, modified this decree. The record shows that after this divorce was granted the plaintiff married and is now maintaining a household of his own. The only thing of any importance whatever shown in the record is the testimony of the plaintiff that the defendant "had been arrested as an inmate of a disorderly house not a great while ago" (August 15, 1931, at Omaha, Nebraska). Defendant seeks to meet this testimony by an affidavit filed in this court made by the chief of police of the city of Omaha, certifying that he has examined the records of his office and there was no arrest of Anna L. McDaniel in Omaha on August 15, 1931, and no charge against her of being an inmate of a disorderly house.
[2] While cases in equity are triable de novo in this court, they must be tried on the record made in the lower court. The affidavit *Page 774
filed in this court, therefore, cannot be considered in the determination of this case. However, counsel for plaintiff, in his oral argument before this court, stated, in substance, with reference to the testimony of his client, W.C. McDaniel, that his client knew nothing about such arrest personally, but he had heard of the same. This, of course, is pure hearsay testimony of that kind and character upon which we do not think the district court was entitled to base a modification of this decree. It is therefore our conclusion that the modification was improperly entered, and the case is reversed.
The motion filed in this case to dismiss the appeal, as well as the motion to strike the reply brief and argument, is overruled. — Reversed.
CLAUSSEN, C.J., and KINDIG, EVANS, and DONEGAN, JJ., concur.
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In the dusk of the evening of February 20, 1933, defendant, while driving an automobile near Iowa City, in Johnson county, ran into and caused the death of Morgan Hartsock. On February 21, 1933, the state of Iowa filed in the district court of Johnson county, Iowa, a county attorney's information accusing the defendant, Joseph B. Wieland, of the crime of manslaughter in unlawfully killing Morgan Hartsock on February 20, 1933. In a blank space on the information appeared a statement signed by Joseph B. Wieland substantially as follows:
"I understand the nature of the charge against me, and have been advised of my legal rights, which I hereby waive. I have received a copy of the information, and waive reading it. I am guilty as charged in said information. I waive arraignment, time of appearance, and consent that the court pronounce judgment and sentence immediately."
On February 21 he was brought into court and pleaded guilty. Defendant was not represented by any counsel at the trial. When called up for sentence, he admitted signing the statement contained in the information and that the statements therein were true. Thereupon the court, on February 21, 1933, pronounced the following sentence:
"It is the sentence and judgment of this court that you be imprisoned in the State Penitentiary at Ft. Madison, Iowa, for an indeterminate period of time, not exceeding eight years and fined $500.00 and the costs of this action."
This sentence was written on the court's calendar at that time. On the same day it was also transcribed into the criminal appearance docket and fee book No. 6 of Johnson county district court. The judgment was not entered upon the district court"record book" until February 27, 1933. On February 21, 1933, an execution was issued by the clerk to the sheriff committing the defendant to the state penitentiary. Under this writ the defendant was delivered to the warden of the State Penitentiary at Fort Madison on February 22, 1933. On February 25, 1933, defendant filed a withdrawal of his "plea of guilty", with his request to enter his plea of "not guilty". On February 28 the court denied him permission to withdraw the plea of guilty and substitute a plea of "not guilty". From this ruling defendant appeals. *Page 889
[1] I. It is contended that the court erred in refusing to allow defendant to withdraw his plea of guilty and substitute a plea of not guilty in lieu thereof, because the application so to do was filed before the judgment was entered on the court's "record book" as required by statute. Defendant claims this right under section 13803 of the Code because his application to withdraw his plea of guilty was filed before any judgment was entered against him; that the entry of judgment in the "record book" after he had withdrawn his plea of guilty, was void because at that time there was no valid plea upon which a judgment could be entered.
This error directly raises the question as to whether or not the action of the court and clerk on February 21, 1933, constituted a judgment. It is claimed that the pronouncement of sentence by the court together with a written memorandum thereof in the court's calendar does not constitute a judgment, and does not become such until it is entered in the court's judgment "record book" and made a part of the court records. If the action of the court and clerk did not become valid as a judgment until entered on the district court "record book" on February 27, 1933, then defendant had a legal right to withdraw his plea of guilty.
Section 13803 provides:
"At any time before judgment, the court may permit the plea of guilty to be withdrawn and other plea or pleas substituted."
The right given to a defendant under this statute is mandatory, and he has an absolute right thereunder to withdraw a plea of guilty at any time before judgment. State v. Henderson, 197 Iowa 782, 198 N.W. 33. And it is error to refuse to allow defendant to withdraw his plea and file another instead. State v. Hale,44 Iowa 96; Jones v. McClaughry, 169 Iowa 281, 151 N.W. 210; State v. Kraft, 10 Iowa 330.
It therefore becomes necessary to determine whether or not a judge's pronouncement of sentence in a criminal case constitutes a valid judgment before it is entered in the court's "record book", which is made a part of the court records by statute. It is contended by appellant that an oral pronouncement of a sentence by the court and a written memorandum thereof in the court's calendar is not a valid judgment until entered in the court's "record book".
Code, section 11582, provides as follows: *Page 890
"All judgments and orders must be entered on the record of thecourt, and must specify clearly the relief granted or order made in the action." (Italics ours.)
Section 10830 provides that the court records shall becontained, among others, in the following books: (1) Record book.One containing the entries of the proceedings of the court whichmay be known as the "record book", and which is to have an index referring to each proceeding in each cause under the names of the parties. (2) A book containing an abstract of the judgment known as a "judgment docket".
Code, section 13971, provides:
"When a judgment of imprisonment, either in the penitentiary or county jail, is pronounced, an execution, consisting of acertified copy of the entry thereof in the record book, must be forthwith furnished to the officer whose duty it is to execute the same, who shall proceed and execute it accordingly, and no other warrant or authority is necessary to justify or require its execution." (Italics ours.)
The evidence in this case shows without conflict that the execution, or mittimus, issued herein was not issued under authority of section 13971 of the Code because that section requires a certified copy of the entry of the judgment in the "record book" to be furnished the officer executing the commitment. No such copy of the entry in the "record book" could have been furnished on February 21 because no such entry was madein that book until February 27, 1933. Section 11582 provides thatall judgments and orders must be entered on the "record of thecourt", and must specify clearly the relief granted or order made in the action.
These statutes clearly imply that all judgments and orders must be entered in the court's "record book" and must clearly specify the relief granted or order made in the action. It is the settled rule of law in this state that it is essential to the validity of a judgment that it be entered upon the district court "record book". This book contains a statement of the proceedings of the court, and its records, as therein contained, must always be consulted for a determination of what has been done by the court. It has been repeatedly held by this court that a judge's calendar containing the judge's written order, together with the entry thereof in the "judgment and appearance docket and fee book" is not sufficient to constitute a final judgment; *Page 891
and that there is no final judgment until entered in the court's "record book". Case v. Plato, 54 Iowa 64, 6 N.W. 128; Traer Bros. v. Whitman, 56 Iowa 443, 9 N.W. 339; Miller v. Wolf, 63 Iowa 233, loc. cit. 238, 18 N.W. 889; Callanan v. Votruba, 104 Iowa 672, 74 N.W. 13, 40 L.R.A. 375, 65 Am. St. Rep. 538; King v. Dickson,114 Iowa 160, 86 N.W. 263; Kennedy v. Citizens Nat. Bank, 119 Iowa 123, 93 N.W. 71; Sievertsen v. Chemical Co., 160 Iowa 662, 133 N.W. 744, 142 N.W. 424; Baxter v. Pritchard, 113 Iowa 422, 85 N.W. 633.
This rule has been so often reiterated by this court that we deem it unnecessary to discuss the reasons therefor, but will simply quote from a few of these cases.
In Case v. Plato, 54 Iowa 64, 6 N.W. 128, it was held that, where the record book contained an entry of judgment for a blank amount as damages, and a specified amount of costs, the judgment could be enforced only to the amount of such costs. In that case we said, l.c. 66:
"The books required to be kept by the clerk of the court, and which, in connection with the original papers, constitute the records of the court, are the record book, the judgment docket,the fee book, the sale book. * * * See Code, sections 196 and 197. The court calendar * * * does not, under the sections referred to, constitute a part of the record. The clerk is required to keep, `1. A book containing the entries of the proceedings of the court, which may be known as the "record book;" * * * 2. A book containing an abstract of the judgments, * * * the names of the parties, the date of the judgment, * * * which book may be known as the "judgment docket," * * *' Section 2864 of the Code provides: `All judgments and orders must be entered on the record of the court, and must specify clearly the relief granted, or order made in the action.' * * * It is apparent, from the foregoing provisions, that it is essential tothe validity of a judgment that it should be entered upon therecord book. This is the book in which a statement of the proceedings of the court is kept, and to which appeal must always be made to determine what has been done. The theory of the law is that it is kept under the direction and supervision of the judge, is approved by him, and constitutes the only proof of his acts.
The judgment docket is a mere abstract of the judgment, and it is contemplated that it shall be made up from a judgment previously *Page 892 entered in the record book. The entry in the record book being blank as to the amount, it does not appear that any judgment was entered except for the costs, $4.95." (Italics ours.)
In Traer Bros. v. Whitman, 56 Iowa 443. 9 N.W. 339, we said:
"Counsel for defendants insist that the entry made by the judge in his calendar is to be regarded as the judgment in the case. * * * In the first place the calendar of the judge is not a recordof the court. See Code, sections 2747, 196, 197. It is simply forthe use of the judge in entering memoranda intended for theguidance of the clerk in entering orders and judgments." (Italics ours.)
In Miller v. Wolf et al., 63 Iowa 233, loc. cit. 238, 18 N.W. 889, 892, we said:
"The judge's calendar is no part of the court record provided by law. * * * it is designed, in part, as a communication to the clerk, but it has no more legal force, as such, than an oralcommunication would have. The only legal evidence of a judgmentis the clerk's entry in the record provided by law. * * * [Cases cited.] The evidence, * * * showing a judgment rendered on the twenty-fifth day of August, 1877, was wholly incompetent, and we cannot find from it that a judgment was rendered upon that day." (Italics ours.)
In Callanan v. Votruba, 104 Iowa 672, 74 N.W. 13, 40 L.R.A. 375, 65 Am. St. Rep. 538, we said:
"The judge's calendar is not a record of the court, but entries therein announce his conclusions, and are intended for the guidance of the clerk. [Citing cases.] While not proof of a decree or judgment, such minutes may tend to show a decree or judgment has been ordered. In re Edwards' Estate, 58 Iowa 431, 10 N.W. 793. If the record is the only proof of a judgment, as hasbeen repeatedly held by this court, then how can a judgment besaid to have been rendered before spread on the records, when itsvery existence prior to that time cannot be established? * * * If the court has announced judgment, the clerk may complete the record after the term. Code, section 242. But until the record is prepared no evidence exists of the rendition of the judgment. These records are under the control of the court (section 248 of the Code), and through them it speaks the final adjudication defined by the statute *Page 893
as a judgment. Until so rendered, there is no judgment. The Codecontains no provisions relating to judgment forms signed by thejudge, and these amounted to no more than directions forjudgments. Until recorded, they were not such, but merelyevidence that the court had ordered judgments, and approved theirform."
This rule was fully approved and also adopted in King v. Dickson, 114 Iowa 160, 86 N.W. 263, where we held that a decree signed by the judge and placed on file is not a final adjudication until entered on the court record.
The same rule was adopted and approved in Kennedy v. Citizens Nat. Bank, 119 Iowa 123, 93 N.W. 71. In that case we said:
"It has frequently been held that neither the mental conclusion of the judge presiding at a trial, nor the oral announcement of such conclusion, nor his written memorandum entered in hiscalendar, nor the abstract entered in the judgment docketconstitutes a judgment, and a judgment cannot be said to beentered until it is spread by the clerk upon the record book. * * * Until such entry is made there is nothing from which an appeal will lie. In other words, while in one sense a judgment is `rendered' when it is announced by the judge, yet until thatjudgment is entered of record there is no competent evidence ofsuch rendition. * * * The trial judge had made a written form of entry or order for judgment, which was signed by him and filed bythe clerk, but no judgment entry was made in the record book; * * * until the record is prepared no evidence exists of the rendition of the judgment. These records are under the control ofthe court, and through them it speaks the final adjudicationdefined by the statute as a judgment." (Italics ours.)
In the case of Sievertsen v. Chemical Co., 160 Iowa 662, 133 N.W. 744, 142 N.W. 424, we also held that the decision only becomes a judgment when finally entered upon the court "recordbook" by the clerk, and the right of appeal dates from the entryof the judgment as thus made. In that case we said:
"To sustain plaintiff's contention necessitates the overruling of a long line of well-considered cases, in which it is held thatthe time for appeal dates from the actual entry by the clerk ofa judgment in the proper court records. * * * No judgment can be said to have been rendered, and there is no rendition of judgment, until it is entered upon the proper records of thecourt, which alone gives evidence *Page 894
of a judgment. * * * While in one sense it may be said that a judgment is rendered when announced by the judge, or where the judge writes a memorandum in his calendar, it really amounts to nothing more than a decision or opinion of the judge as to what the judgment should be, and is no more nor of any higher value than the verdict of a jury, until entered upon the proper record of the court. [Italics ours.] * * * He must enter a judgment upon the verdict as returned, and no judgment exists until so entered. There is a vast difference between the opinion and conclusion of the court as to what the judgment should be and the judgment itself. The opinion and judgment of the presiding judge, given in an oral announcement of such an opinion, or in memorandum entered on his calendar, or in a written form of entry, though signed by him, and though in the form of a judgment, does not constitute a judgment, and not until the record is made is there any competentevidence of judgment. There is no enforceable judgment, no liens created, or enforceable rights determined, until the completed entry. [Cases cited.] From these decisions it is apparent that the rendition of the judgment is not complete, for the purpose of appeal, until the presiding judge pronounces the sentence of the law upon the facts in controversy, and this pronouncement hasbeen spread upon the records of the court. To hold otherwise would be to hold that the mere pronouncement of the judge presiding, or a memorandum made by him as to the conclusions he had reached, or a writing signed by him, * * * would be the rendition of a judgment and fix the time from which the appeal should be taken, and this, though not entered upon the records of the court until long after the right to appeal had been terminated. * * * The judge is an officer of the court. The clerk is also an officer of the court. The judge formulates the judgment for the court, as an officer of the court, and the clerk, acting for and in behalf of the court, enters the opinion of the judge as formulated upon the record of the court, and it is not a completed judgment of the court, nor can it be said tohave been rendered by the court, until everything has been doneby these officers of the court which gives it vitality as ajudgment." (Italics ours.)
Section 13971 provides:
"When a judgment of imprisonment, either in the penitentiary or county jail, is pronounced, an execution, consisting of a certified *Page 895
copy of the entry thereof in the record book, must be forthwith furnished to the officer whose duty it is to execute the same, who shall proceed and execute it accordingly," etc.
The same construction is given to the term "judgment" in criminal cases that is given in civil cases. State v. Manley,63 Iowa 344, 19 N.W. 211; State v. Hortman, 122 Iowa 104, 97 N.W. 981; Baxter v. Pritchard, 113 Iowa 422, 85 N.W. 633; Sievertsen v. Chemical Co., 160 Iowa 662, 133 N.W. 744, 142 N.W. 424; Jones v. McClaughry, 169 Iowa 281, 151 N.W. 210; Cooley v. Ayres,180 Iowa 740, 163 N.W. 625.
This rule has been followed in cases where a signed memorandum of the order of court was entered upon the judge's calendar and where an abstract thereof was also entered in the clerk's appearance, judgment docket, and fee book. We have repeatedly held that all of the various steps taken by the court officers do not become a judgment until entered upon the court's judgment "record book." All prior actions of the judge, the clerk, and other officers of the court are merely memorandums and directions of what the judgment should be, and, until such directions and orders are carried forward and entered upon the court's "record book" there is no final judgment.
In Jones v. McClaughry, 169 Iowa 281, 151 N.W. 210, we held that a sentence imposed under a plea of guilty, and a minute thereof entered on the judge's calendar, is wholly without effect as a judgment until actually entered on the "record book". In that case we said:
"The most serious contention of counsel is that the record does not disclose that sentence was ever pronounced against defendant. It does not appear from the record book of what offense he was accused or for what term he was sentenced. All said is that `judgment and sentence was then entered in the calendar and the court was declared at recess until further called.' * * * Theminutes on the judge's calendar form no part of the record, anddo not constitute a judgment. Traer Bros. v. Whitman, 56 Iowa 443, 9 N.W. 339; Miller v. Wolf, 63 Iowa 233, 18 N.W. 889. They are mere directions to the clerk, and of no more significance than if orally made to him. State v. Manley, 63 Iowa 344, 19 N.W. 211; Case v. Plato, 54 Iowa 64, 6 N.W. 128; Burroughs v. Ellis,76 Iowa 649, 38 N.W. 141. The record as contained in the recordbook kept by the clerk *Page 896
is the only proof that a judgment has been entered. * * * Neitherthe minutes of the judge's calendar nor a judgment form signed bythe judge, and not recorded, constitute a judgment. Untilactually spread upon the record, there is no enforceable judgmentor one from which an appeal may be taken. * * * Many more decisions might be cited, but this is unnecessary; for, ifanything is well settled in this state, it is that a judgment, tobe of any validity, must be spread on the "record book" of theclerk. And in a criminal case: `When a judgment of imprisonment,either in the penitentiary or county jail, is pronounced, anexecution consisting of a certified copy of the entry thereof inthe "record book", must be forthwith furnished to the officer whose duty it is to execute the same * * *' Section 5443, Code. That the sheriff was not furnished a true copy of the judgment entry by the clerk nor the defendant such a copy by the sheriff upon delivery of plaintiff at the reformatory cannot obviate the conclusion that plaintiff's detention was without warrant of law, for no judgment had ever been entered against him." (Italics ours.)
In Cooley v. Ayres, 180 Iowa 740, 163 N.W. 625, we also held that no judgment can exist until the same is entered on the"record book". In that case the defendant was charged with violating a liquor injunction. The hearing on the liquor nuisance case was held on January 13, 1916, and at that time the court orally announced that decree would be granted restraining the defendant and entered in the court's calendar the following: "Trial and decree as per entry to be signed." The decree was entered on the record book of the clerk on the 26th of January, 1916. On that day proceedings were commenced against Cooley to show cause why he should not be held for violating the decree because he unlawfully sold intoxicating liquor on the 22d day of January, 1916. On trial for the violation of the injunction, he was held guilty. In that case we said:
"The decree was entered January 26, 1916, four days after the contempt is alleged to have been committed. * * * Nor can it besaid that evidence of an oral announcement of the judge isentitled to any more weight than his memorandum thereof in thecourt calendar. All previously said is merged in the decree as spread on the record book, and as said in Balm v. Nunn, 63 Iowa 641, 19 N.W. 810: `There can be no judgment until it is enteredin the *Page 897 proper record of the court. It cannot exist in the memory of theofficers of the court, nor in the memoranda entered upon thebooks not intended to preserve the record of judgments.'"
(Italics ours.)
In State v. Manley, 63 Iowa 344, 19 N.W. 211, it was held that a dismissal of a criminal action by the judge entered on the court calendar did not constitute a dismissal because it was not entered in the court record. In that case we said:
"The record constitutes the evidence of the action of the court, whether the action be in the form of an order or judgment. The calendar is in the nature of a private memorandum book, designed to promote merely the convenience of the judge and the clerk. * * * What precedes the entry of record is the mereannouncement of the judge's mental conclusion, and is not thecourt's action." (Italics ours.)
In view of our former rulings, we are constrained to hold that, under the statutes and the decisions of this state, there is no judgment until it is entered in the judgment "record book" kept by the clerk for that purpose. That such is the settled law of this state in civil cases cannot be questioned. Appellee contends that the term "judgment" has a different meaning in criminal actions. This court has applied the same rule in criminal cases, and we have so held in the cases referred to. We therein held there is no judgment until it has been entered upon the court's "record book" as provided by statute. The announcement by the judge as to what sentence will be imposed upon a defendant is not the formal pronouncement of the court until it is entered in the court's "record book"; until the sentence pronouncement by the judge, as an officer of the court, has been so entered by the clerk, the judgment of the court is not final. The clerk is also an officer of the court, and the entry of the conclusion of the judge in the court's "record book" by the clerk is necessary to give the judgment vitality. Until that time there exists noevidence of the judgment, and therefore until the entry is so made in the court's "record book" there is no judgment. This has been so repeatedly held in our cases that we are not disposed to change the rule at this time.
[2] Under section 13803 a defendant has an absolute right to withdraw a plea of guilty at any time before the judgment. From the conclusion hereinabove reached it is our holding that there was *Page 898
no judgment in this case until it was entered in the court's "record book". No such judgment having been entered until February 27, 1933, defendant had the legal right to withdraw his plea of guilty on February 25, 1933.
It is claimed by appellee that the term "judgment" used in section 13803 is synonymous with the word "sentence". If this were so, the legislature in framing the statute could easily have said so. It is claimed that such a construction was given by this court in Beatty v. Roberts, 125 Iowa 619, 621, 101 N.W. 462. What was said in that case was only dicta, as the court there said:
"We do not determine whether or not the proceeding was so far criminal in its nature that the statute pertaining to a withdrawal of a plea of guilty before judgment was applicable."
Notwithstanding any language used in that case, we are constrained to give the word "judgment" the same construction given it in the numerous cases hereinabove referred to; and that the oral pronouncement of the trial judge of his conclusion as to what the sentence should be, or his written memorandum thereof on the court calendar or an abstract thereof in the judgment docket and fee book, are merely directions for the entry of such judgment in the court's "record book", and, until so entered, there is no judgment. Until that time there is no evidence of the existence of a judgment; there is nothing from which an appeal can be taken; there is nothing upon which an execution or commitment can be issued.
Other questions are raised, but, in view of our ruling as hereinabove expressed, a consideration thereof is unnecessary.
We believe the court erred in failing to permit the defendant to withdraw his plea of guilty before the final entry in the court's "record book".
The judgment of the lower court is therefore hereby reversed.
DONEGAN, KINDIG, EVANS, STEVENS, ANDERSON, and MITCHELL, JJ., concur. *Page 899
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https://www.courtlistener.com/api/rest/v3/opinions/3432916/
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Elsie Willenbrock died intestate, March 13, 1920, survived by her husband, Fred H. Willenbrock, and their only child, a daughter, Erma, born July 24, 1917. On his own petition, which recited that the intestate left personal property of the value of $1,800, the husband was appointed administrator of his wife's estate, on March 23, 1920, and qualified by taking and filing oath and giving bond for $3,600, with his brothers George and H.F. Willenbrock as sureties thereon. He published notice of his appointment, as ordered, in the issues of March 24th, 31st and April 1, 1920, of a Marengo newspaper. On March 24, 1920, he received $1,707.25, as the share of his deceased wife from the sale, in a partition action, of real estate *Page 236
belonging to her father's estate. But two claims were filed against the estate — one by Lane for $34.14, and the second, by Dr. Augustine for $177, for services rendered the deceased in her last illness. The funeral expenses, amounting to $207, were not filed as a claim. The administrator paid these three bills. He never filed an inventory, nor a report of a receipt or a disbursement, of any kind. The only item of cost entered was the publication fee of $5.40. E.J. Sullivan is noted on the probate docket as the attorney for the estate. The administrator died testate, February 9, 1928, without closing the estate, or filing anything further relative to the administration thereof. His brother, L.C. Willenbrock, qualified as executor of his estate. The only property he reported was $15 in cash, and the 40-acre homestead, mortgaged for $7,927 and valued at $12,000. The homestead was not disposed of in the will, but was inherited by the daughter, Erma, as intestate property. She was the sole beneficiary and recipient of all of his estate. On the letters testamentary was indorsed the order of the clerk that notice of the appointment should be by posting one notice at the front door of the courthouse. Proof of the posting was filed. This order of posting is shown in the executors' and administrators' bond record, and in the probate docket is the following record: — "Notice of appointment given of posting April 20, 1928." We refer to these records because the appellees claim that the order was not entered of record in the probate docket as provided by section 11890, and that therefore legal notice of the appointment was never given, and that the statute of nonclaims never commenced to run. Claims were filed in this estate to the amount of approximately $200, included among them being the claim for $50 of E.J. Sullivan, for services as attorney for the deceased as administrator of the Elsie Willenbrock estate. The executor filed his final report and petition for discharge, December 26, 1929, reciting the payment of the court costs, and his inability to pay the claims because of lack of assets, which could be subjected to their payment. After giving notice as ordered the report was approved, the estate closed, and the executor discharged by order of court on *Page 237
January 10, 1930. The executor made no report of anything done by him as the personal representative of the deceased, as administrator of the estate of Elsie Willenbrock, or of anything done by the latter as such administrator, or of any assets of said estate.
Erma was about 11 years old at her father's death. She had lived with him until his death. L.C. Willenbrock, the executor, was then appointed guardian of the person and property of Erma, and took her to live with him at his home in Newton. He sold the homestead in March 1930 for $12,000, and after paying the liens on the property, he received for his ward $1,396.92 in cash and a note of $1,000 from the purchaser secured by a third mortgage on the land. Later in a refinancing of the farm by the purchaser, through the Federal Land Bank of Omaha, he compromised the amount due on the note for $200. His ward attained her majority by marriage on May 29, 1937. The final report of her guardian was approved and he was discharged by order of court on September 8, 1937, and he delivered to his ward $1,032.98, in cash or its equivalent, in full settlement of her property rights.
Erma testified that she first learned of the property which she inherited from her mother, in December 1938. On January 31, 1939, she filed petitions in the estates of both her father and mother, setting forth the above-stated facts, and procured the appointment of Ole H. Olson, as administrator de bonis non of the estate of her mother, and the appointment of E.J. Von Hoene, as administrator de bonis non of the estate of her father. The latter filed what he denominated a "report and accounting", showing the receipt by his decedent of the $1,707.25, and his payment of the Lane claim and the funeral expenses, leaving a balance unaccounted for of $1,466.11, with interest from March 24, 1921. The report and accounting was set down for hearing, and the sureties on the administrator's bond filed "answer, objections and exceptions" thereto, alleging no knowledge of the receipts and disbursements or their correctness and therefore denying the same. They admitted their suretyship, and the administration of the two estates, but alleged that Erma *Page 238
had acknowledged receipt in full of all property to which she was entitled in the guardianship, and that as heir or legatee she had received all property left by her father, that she had filed no claim against her father's estate, and that any liability of the sureties on the bond was barred by the nonclaim statute, and the general statute of limitations. Thereafter Erma, and Olson, as administrator de bonis non, joined in the report and accounting of Von Hoene, administrator de bonis non, and prayed that the sureties and Von Hoene, as administrator be adjudged liable to Olson, administrator, for the amount unaccounted for. The sureties then amended their original pleading, alleging that the administrator of the Elsie Willenbrock estate had paid all claims against it within the year for filing claims; that they had paid all costs taxed or taxable to the estate; that no creditors or anyone, other than Erma, had any interest in said estate; that she, as the only heir, had a right to demand an accounting from the administrator, at the end of said year for filing claims, and at the end of three years from the first publication of notice of the administrator's appointment, as provided by statute (section 3394, Code of 1897, section 12044, Code of 1924), and at the death of her father; and that because of the matters alleged, Erma was the only person who might bring action against the sureties, and that the court had no jurisdiction to appoint the administrators de bonis non Olson and Von Hoene, as administrators, and Erma, as the sole heir, joined in a reply, denying the allegations of the answer, and further alleging that the sureties in paying the court costs of $9.40 in the Elsie Willenbrock estate on March 18, 1939, had admitted their liability on the bond, and had estopped themselves from asserting that Erma was the only proper party to prosecute any proceedings against the sureties.
The court rendered judgment, finding, in general, as alleged by the appellees, allowing credits for all claims filed, the funeral expenses, and court costs of $9.40, leaving a balance of $1,279.71 unaccounted for and owing the administrator de bonis non of the Elsie Willenbrock estate, by Fred H. Willenbrock, his personal representative and the sureties on his bond, with interest from *Page 239
March 23, 1923; that upon payment of said sum to Olson, administrator, the sureties were entitled to receive back from said administrator, upon the closing of the estate, the one-third distributive share of Fred H. Willenbrock, in his wife's estate. Judgment was rendered against the sureties for $2,465.82, with interest at 5 percent per annum from April 24, 1939.
The appellants assign errors for reversal of the judgment as follows: (1) any claim urged by the appellees was barred by statutes of limitation; (2) the court was without jurisdiction to appoint either of the administrators de bonis non; (3) the court erred in entering judgment for the full amount of the balance unaccounted for without first allowing credit for the amount of the distributive share of Fred H. Willenbrock in his wife's estate; (4) that Erma had received all the property to which she was entitled out of the estate of her mother, from the property left by her father.
Counsel on both sides, with marked industry and ability, have very forcefully presented this appeal to us by printed, typewritten, and oral argument, supplemented by epistolary afterthoughts since the oral submission. They have instructively discussed the quite numerous decisions of this court, and of other courts, dealing with the question of who holds title to intestate personal property, on the death of the decedent, and the nature of that title, and whether a right of action accrues therefor, or for an accounting, at the termination of the year for filing claims, or at the end of the three-year period referred to in section 12044 of the 1935 Code of Iowa, or on the death of the administrator, or not until the administrator openly disavows any obligation as trustee to account for the property. In the view which we take of this case, the correct determination of it does not require either a discussion or the answering of any of these questions.
[1] We agree with counsel for both sides that the administrator of an intestate estate takes possession of and holds the same as an express trustee thereof, for the claimant creditors of the decedent and of the estate, the heirs, and the spouse of the *Page 240
decedent, and for any others who may have a proper interest in the property. Blackman v. Baxter, 125 Iowa 118, 100 N.W. 75, 70 L.R.A. 250, 2 Ann. Cas. 707; Christe v. Chicago R.I. P.R. Co.,104 Iowa 707, 74 N.W. 697; Murphy v. Murphy, 80 Iowa 740, 45 N.W. 914; State v. Potter, 195 Iowa 163, 191 N.W. 855; Goodman v. Bauer, 225 Iowa 1086, 1090, 281 N.W. 448; Bettendorf v. Bettendorf, 190 Iowa 83, 109, 179 N.W. 444, 945; Ryan v. Hutchinson, 161 Iowa 575, 584, 143 N.W. 433; Powell v. Overton,191 Iowa 574, 578, 181 N. . 24; Packer v. Overton, 200 Iowa 620, 624, 625, 203 N.W. 307.
[2] Under sections 3362 and 3363 of the Code of 1897, effective during the early years of the administration of the Elsie Willenbrock estate, the personal property not necessary for the payment of debts nor otherwise disposed of went to the same persons and in the same proportions as though it were real estate, as soon as the administrator could properly distribute it.
There came into the administrator's possession assets of the estate to the amount of $1,707.25, being the intestate's two twenty-firsts interest or share in the proceeds of the partition sale of real estate belonging to her father. Deducting therefrom the sum of $418.14, which the administrator expended in full payment of funeral expenses and all claims filed, and the sum of $9.40 court costs, later paid by the sureties, there remained the sum of $1,279.71 for distribution to himself as surviving spouse, and to his daughter, as the sole heir of her mother. Of this balance, he was entitled to one third, or $426.57 as his distributive share, and Erma was entitled to two thirds, or $853.14. He never had himself or anyone else appointed guardian of this property for her. He was the natural guardian of her person. He retained this property in his possession as the property of his daughter until his death in February 1928. His relation to the daughter was not that of debtor and creditor, but that of trustee of an express trust and cestui que trust.
[3] On the death of his wife in March 1920 he had a difficult task ahead of him, in attempting to rear a motherless baby. He was then living on what is described as the Pole farm. He *Page 241
moved into Marengo, in December of 1920, and lived there until March 1, 1922, when he moved back to the Pole farm, and remained there until in June 1923 when he moved on to the 40 acres which became his homestead and that of his daughter until his death. His relationship to the property of his daughter never changed. It was her property in his possession. Appellees say that he converted it to his own use. There is no evidence of such conversion. As trust property belonging to her, he is presumed to have conserved and retained it for her. Appellees, in their argument, repeatedly state that, as such trustee, he is presumed to have preserved this property. There is no question as to this principle of law. It is a rebuttable presumption, but it stands until overcome by evidence. It was first announced by this court in Independent Dist. v. King, 80 Iowa 497, 502, 45 N.W. 908, 909, wherein, in speaking of the insolvent bank, we said: "As they received it knowing its trust character, it will be presumed, in the absence of a showing to the contrary, that it was preserved by them in some form, and that it passed into the hands of their assignee." In Stilson v. First State Bank, 152 Iowa 724, 727, 133 N.W. 354, 355, we said: "In the absence of evidence to the contrary, it will be presumed by a court of equity that a trustee will intentionally preserve a trust fund." In City of New Hampton v. Leach, 201 Iowa 316, 320, 207 N.W. 348, 350, the court said: "If a trust fund is established, a presumption arises that it was retained in the possession of the trustee * * *." The fact that this is a law action does not preclude us from applying equitable principles to the controversy. Hamm Brewing Co. v. Flagstad,182 Iowa 826, 833, 166 N.W. 289.
[4] In the above-cited cases the trust funds had gone into the possession of insolvents, and the controversy arose between the claimants of the trust funds and general creditors. The question which always arises in such cases is whether the trust funds have so augmented the insolvent estate that they can be withdrawn without injuring the rights of general creditors. We have no such complication in this case. There were no claimants *Page 242
of the trust estate of Erma, and there were no claimants of the estate of her father. There was in fact no controversy between Erma and her father. He had never repudiated the trust, and the appellees concede this. So far as the record shows he had at all times sufficient assets to return to her all of her property. The record establishes that he had sufficient assets to do so at his death. He owned 40 acres of land which was sold for $12,000, and after paying all liens upon and charges against the land, there remained $2,396.92, which was over $1,000 in excess of the amount of his daughter's property, in the possession of his administrator and executor, computing interest at 6 percent a year, with annual rests. She received all of this to more than recompense her for the trust estate which had been held for her by her father. She received this property to the amount of the trust estate, not as an heir of her father, but as her own property, and in full satisfaction of any obligation of her father, as administrator of her mother's estate, or of the appellants as surety upon his bond as such administrator. Suppose that just before he died her father had borrowed money upon his 40 acres, or had sold it and, out of the proceeds, had paid to her his obligation and returned her property in full, would there be any reasonable or just basis on which to assert a claim against him and the sureties on his bond? The answer must be in the negative. Did the fact that the receipt, by her of her property, was through the administration of his estate, render the satisfaction of the liability of the obligors in the bond any the less effective? The correct answer is that the obligation of the bond was fully satisfied. The fact that the daughter's property was conserved for her in an exempt homestead, does not avail the appellees. Had the 40 acres been nonexempt her trust estate therein could not have been subjected to the payment of any debts of her father. She would have been entitled to it, and its receipt by her would have satisfied the bond. As a matter of fact her father's unsecured obligations, other than to her, were but approximately $200.
[5] The appellees claim that this defense was not raised in *Page 243
the pleadings. There is no merit to such claim. The so-called pleadings were quite informal, as is usual in probate proceedings. Administrator Von Hoene filed a "report and accounting," in which he stated that the daughter by will and by inheritance, had received all of the property in her father's possession. Administrator Olson and the daughter joined in this report and accounting, and adopted it. In their answer and objections the appellants re-alleged that the daughter had thus received all of the property in her father's estate, and because of this and other matters alleged, they averred that they were not liable on the bond. Proof was introduced showing the assets and liabilities of the father, and an excess value of the former over the latter in an amount exceeding any claim of the daughter. The fact statements alleged were of sufficient breadth and particularity to raise the question. Pleadings in probate do not require the particularity and formality of pleadings in suits or actions generally. It is our conclusion that the appellants are not liable upon the bond in question, and that they should be exonerated of record. There is no disputed fact in the record, particularly with respect to the matters upon which we base our decision. These facts have been and are established by proceedings in court. It would serve no good purpose to send the action back for further trial. It is therefore our judgment that the judgment appealed from is reversed and remanded to the district court for the rendition and entry of judgment not inconsistent herewith. — Reversed and remanded.
HAMILTON, C.J., and HALE, RICHARDS, SAGER, OLIVER, MITCHELL, MILLER, and STIGER, JJ., concur. *Page 244
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3432917/
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This case comes to us on an appeal from rulings upon motions to strike and dismiss. For an understanding of the questions involved in this appeal it is necessary that we review the situation and proceedings in the trial court.
C.H. McNider, a resident of Mason City, Iowa, died October 30, 1928. His will was admitted to probate in Cerro Gordo county on the 4th day of December, 1928. His son, Hanford McNider, and his widow, May H. McNider, were appointed executors, and notice of their appointment and proof of publication thereof was filed in the office of the clerk, December 27, 1928.
On the 6th day of August, 1931, one F.A. Ontjes, who claims to be a stockholder in the Northwestern States Portland Cement Company, a West Virginia corporation, claiming to act in behalf *Page 1358
of said corporation and in behalf of himself and all other stockholders similarly situated, filed a claim in probate against said estate. The claim covers fourteen pages of the printed abstract, and involves an aggregate sum of $2,393,143, made up of various items claimed to be due from the C.H. McNider estate, by reason of certain transactions claimed to have been conducted by the said C.H. McNider while he was an officer and director of the said cement corporation. And it is claimed that he should be held to have been acting as trustee for the cement company in transactions carried on in his individual name in reference to the purchase of shares of corporate stock of other and independent cement companies. The claim also involves alleged excess salary and bonus payments made to the said C.H. McNider by the said Northwestern States Portland Cement Company, while he was acting as an officer and director of said company.
On the 15th day of October, 1931, the claimant filed in probate a petition for the allowance of said claim which contains practically all of the allegations as contained in the claim as filed, and prays that the claim be allowed against the estate in the total sum above mentioned.
On December 18, 1931, the claimant filed an amendment to his petition for allowance of the claim in which several other corporations and May H. McNider and Hanford McNider were added as defendants; the claimant asking in this amendment that the claim as filed be established and allowed as against the rights of the included corporations, and that the executors of C.H. McNider estate be ordered to pay the same.
On April 19, 1932, the claimant filed what is designated as a second amendment to his petition for allowance of the claim. Included in this so-called second amendment was a prayer for an accounting as to the assets of the C.H. McNider estate, and that claimant have judgment against certain corporations and the widow and son of C.H. McNider for the amount of the claim as established.
On the 2d day of May, 1932, motions to strike and dismiss the so-called second amendment to petition for allowance of claim were filed by all of the named defendants. These motions were based upon the grounds that the pretended causes of action as set forth in the said amendment to petition for allowance are not within the jurisdiction of a probate court; that they constitute a misjoinder of causes of action and a misjoinder of parties; that the facts alleged *Page 1359
do not entitle the claimant to any relief against the individual defendants other than the estate of C.H. McNider; that the said claims as contained in said amendment cannot be prosecuted by the same kind of proceedings as the original claim filed against the C.H. McNider estate; and that said amendment attempts to allege claims against various defendants which are not against all of such defendants.
On May 13, 1932, said motions were ruled upon by the trial court (Hon. M.F. Edwards, Judge, presiding), overruling the same only to the extent that claimant be permitted to prove his claim in the probate proceedings in the matter of the estate of C.H. McNider, deceased; the trial court holding that the first proceeding necessary on the part of the claimant is the establishment of the claim as filed against the estate, and that in the event such claim is finally established, that the matter of additional relief against other parties attempted to be made defendants by the amendments to the petition for allowance might be transferred to equity and there tried, if the occasion arises.
On May 18, 1932, plaintiff filed what is designated an amended petition in equity, which covers twenty pages of the abstract, includes all of the claims and allegations made in the original claim filed against the estate and in the petition for allowance thereof, and the several amendments thereto, also making all of the defendants named in the amendment to petition for allowance of claim, parties defendant.
On May 20, 1932, the executors of the McNider estate filed an answer to the original claim in probate.
On May 21, 1932, the claimant filed a motion to transfer the entire proceedings, including the allowance of the original claim, to equity. Motions to strike and dismiss the so-called amended petition in equity were filed by all of the named defendants, based upon the grounds that the so-called amended petition contains simply repetition of the original petition for allowance of claim and amendments thereto; that the so-called amended petition in equity presents issues that cannot be tried in the probate proceedings, which is a law action; that the matters therein alleged are not within the jurisdiction of a probate court, and that the jurisdiction of the probate court to hear and determine a claim against the estate cannot be ousted or defeated by alleging or presenting equitable issues, as against the estate, its executors, or third persons; that the so-called *Page 1360
amended petition in equity presents a misjoinder of causes of action and of parties defendant.
On September 3, 1932, the trial court (Hon. M.F. Edwards, Judge) made a ruling upon the foregoing motions, and filed a written ruling sustaining all of said motions.
On September 3, the court also overruled claimants' motion to transfer the whole proceedings to equity.
On October 12, 1932, the claimant filed what is designated an amendment to his petition, which in effect restates and reiterates allegations of prior pleadings filed by him.
On October 24, 1932, motions to strike and dismiss this amendment were filed, based upon practically the same grounds as prior motions to the prior pleadings.
On June 28, 1933, a written ruling and order was filed by the trial court sustaining said motions to strike and dismiss.
On August 25, 1933, the claimant filed what is designated as a substituted petition in three counts containing practically the same allegations as were contained in the prior petitions and amendments. There are no separate prayers to the several counts to this substituted petition, but there is a general prayer therein contained which prays the same relief as in prior pleadings.
On September 1, 1933, the claimant filed motion for leave to file separate petitions in reference to each count of the substituted petition, which motion was by the court (Hon. T.A. Beardmore, Judge) on the 20th day of October, 1933, overruled.
On October 24, 1933, the claimant filed what is designated "Second substituted petition" in which he makes as defendants, the executors of the C.H. McNider estate, the Northwestern Portland Cement Company of Iowa, May H. McNider, and Hanford McNider, individually and as trustees, and the First National Bank. This pleading is also in three counts and in which the same statements and allegations are contained as in prior pleadings with the same general prayer.
On the 1st day of November, 1933, motions to strike and dismiss said "Second substituted petition" were filed by all of the defendants therein named, based upon practically the same grounds as is contained in prior motions, with the additional ground that all matters set up in the so-called "Second substituted petition" had been determined adversely to the claimant in prior rulings of the court, and that the attempt to again file practically the same petition *Page 1361
and make the same parties defendants was an attempt to evade the prior rulings of the court and prior judgment dismissing the original defendants out of the proceeding, and that such attempt constitutes a violation of the rights of the defendants and a contempt of the court, and that the said prior rulings constitute and are a full and complete adjudication as against the claimant.
On January 6, 1934, the court entered a written ruling upon these motions to strike and dismiss the "Second substituted petition" and sustained the motions as to counts two and three of the "Second substituted petition" and overruled the motions as to count one. The court also extending leave to claimant to file separate petitions as to counts two and three, if he so elect.
From the order of court overruling the motions as to count one, and the granting of leave to file separate petitions as to counts two and three, this appeal is prosecuted.
[1] It will be noticed by the above brief reference to the many pleadings filed in this proceeding that the claimant has been most persistent in presenting to the trial court his theory of his rights as against the estate involved, and the various other claimed defendants. The abstract and amendments thereto cover more than 225 pages made up wholly of the various pleadings, motions, and rulings of the court upon the alleged claims presented. We are unable to reconcile the ruling of the trial court from which this appeal is prosecuted with the prior rulings of the same court on the same questions, unless it be by the unreasonable persistence of the claimant and by attrition, the patience of the trial court has been exhausted.
We are inclined to the opinion that the defendants pursued the proper remedy in their various motions to strike and to dismiss, and that the various rulings of the trial court, with the exception of the last one from which this appeal is taken, were correct and are sustained by the great weight of authority. The last pleading filed, known in the record as the "Second substituted petition", contains a repetition of matters that had been set forth in prior petitions and amendments, and does not in any way change the issues as presented by prior pleadings. It appears patent that the claimant has attempted by the filing of this last pleading, as well as some of the preceding ones, to evade the prior rulings of the trial court. The court had already ruled that the claimant could not pursue such a course of pleading and evade trial of the main question at issue in *Page 1362
the probate court, that is, the establishment of its claim against the McNider estate, and such ruling was correct. Myers v. Wendel, 198 Iowa 859, 200 N.W. 431; Swartzendruber v. Polke,205 Iowa 382, 218 N.W. 62, 65.
In the Polke case, we said:
"The instant plaintiff did attempt to amend, but a comparison of the language of his second amended and substituted petition with the language of its predecessor will disclose the identical intent and content. No new or further cause of action was stated. The filing of a pleading once held insufficient on demurrer is properly reached by a plea to the jurisdiction which, in this case, in legal effect, was a motion to strike and was so treated by the trial court since the enrolled order read. `That said amended and substituted petition should be and it is stricken from the files.'"
In the case at bar the motions to strike and dismiss the amended petition in equity were sustained by the court. A comparison of that pleading with the amendment later filed, and with the last substituted petition filed, shows that the last is but a reiteration and restatement of the matters contained in prior pleadings, and that the last so-called "Second substituted petition" should not have been permitted to stand.
The only issue triable in this proceeding is triable in the probate court upon the original claim as made by the claimant against the estate of C.H. McNider, and such claim should be disposed of first as a matter in probate, without joining other issues and questions, which may be properly adjudicated in the event the claimant prevails in the establishment of his claim against the estate. The trial court was correct in its rulings when it held:
"This court has already ruled in this matter that this was a proceeding in probate to establish a claim against the C.H. McNider estate, and that such claim must be heard in probate as a law case, and the facts be submitted to a jury unless the parties waive a jury trial. That this court has heretofore ruled that plaintiffs have a right to transfer to equity all equitable matters relating to securing funds from said estate to satisfy any claim that plaintiff may secure to be established against said estate in the manner herein indicated. That until said claim is disposed of there can be no proceeding in equity or liability against certain named defendants." *Page 1363
In the determination of the question of a claim against an estate the probate court has jurisdiction in respect to all matters necessary for the determination of the question of liability. However, the present proceeding does not involve the enforcement of any trust, nor the impressing of a lien upon any property, until at least the claim is established against the estate of C.H. McNider. The prosecution of the claim against the estate should proceed in an orderly way. Alleged claims against third parties who may at some time be required to account to the creditors of the estate should not be litigated, certainly, before the claim of the creditor has been established.
[2] The claimant-appellee has filed a motion to dismiss the appeal on the ground that the order appealed from is not an appealable order. It must be conceded that if the order appealed from is within the provisions of paragraph 4 of section 12823 of the Code, it is an appealable order. That is, if it involves the merits or affects the final decision, it is appealable, regardless of whether the question could be preserved or reviewed upon appeal from the final judgment. We are satisfied that the questions involved and raised by the motions here under consideration do involve the merits and materially affect the final decision on the main question.
[3] We had a similar question under consideration in the case of Dorman v. Credit Reference Reporting Co., 213 Iowa 1016, 241 N.W. 436. In that case we said:
"It is not always easy to determine whether an intermediate order necessarily involves the merits or materially affects the final decision. The test by which the right of appeal from an intermediate order is to be determined is: Will the party aggrieved thereby be deprived of some right which cannot be protected by an appeal from the final judgment?" Continuing we said: "As stated above, it is the right of the party aggrieved to elect to stand on his pleading, permit judgment to be entered against him, and, on appeal therefrom, obtain review on a ruling upon a motion to strike or for more specific statement, but such course often involves considerable hazard. We have in a few cases inadvertently said that no appeal will lie from the ruling of the court on a motion to strike, unless the aggrieved party elects to stand on his pleading and permits judgment to be entered against him. In re Delaney's Estate, 207 Iowa 451, 223 N.W. 486; Porterfield v. Grand Lodge, 212 Iowa 1181, 236 N.W. 381; Joslin v. Bank, 213 Iowa 107, 238 N.W. 715." *Page 1364
We incidentally notice that the cases cited in the above quotation are cited and relied upon by the appellee-claimant in support of his motion to dismiss this appeal. It will be noticed also that we said in the foregoing quotation that the ruling in the cited cases was inadvertently made. We further said in the Dorman v. Credit Reference Reporting Co. case:
"In so far as we have held in a few cases that, on a motion to strike which is not the equivalent of a demurrer, the party must stand on his pleadings and permit judgment to be entered against him before appealing, we are in error, and such will not hereafter be the rule of this court. There is no warrant for such a rule under the statute, and in reality the holding is in conflict therewith." We further said: "If, however, the ruling, although intermediate or interlocutory, involves the merits or will materially affect the final decision, a direct appeal may be taken therefrom. This the statute in very clear terms permits."
The rule announced in the Dorman case was restated and followed in the recent cases of Manley v. Paysen, 215 Iowa 146, 244 N.W. 863, and Ellis v. Bruce, 215 Iowa 308, 245 N.W. 320. The only case in which the appellee can find any support for his position that the order appealed from in this case is not an appealable order is the case of Federal Surety Company v. Des Moines Morris Plan Co., 209 Iowa 339, 228 N.W. 293. A general announcement was made in that case which might in some circumstances be held to support the position of the appellee, but the decisions in the Dorman v. Credit Reference Reporting Co. case, Manley v. Paysen, and Ellis v. Bruce, plainly and definitely announce a different rule and it must be held that the later cases overrule and repudiate the announcement made in the Federal Surety Company case. We therefore hold that the order appealed from in the case at bar is an appealable order.
[4] A further question is raised by the claimant that the appellants waived their appeal by filing answer to count one of "Second substituted petition". With this contention we cannot agree. A notice of appeal was served and filed four days after the order appealed from was entered. On the same day appellants filed an application for a stay in the district court until the appeal was disposed of. The trial court denied such application The claimant then filed a motion for default, based upon the failure of defendants *Page 1365
to answer count one of the "Second substituted petition". A resistance to this motion for default was filed and also an answer by the defendants to count one, and in such answer the defendants expressly recited that they did not waive their motions to strike and dismiss, nor their appeal from the order denying the same. It thus appears that the defendants were bound to answer to avoid a default and judgment against them. They answered under coercion and through necessity. There was no voluntary waiver of defendants' appeal. We find no decisions of this court, and we are cited to none by the appellee, which hold that the filing of an answer under the circumstances here shown constitutes a waiver of an appeal already taken. We do have, however, a decision of this court holding that under circumstances less coercive than existed in the present proceeding, the filing of a pleading after such a ruling does not waive the right to appeal. Such case is Birks v. McNeill,177 Iowa 567, 159 N.W. 210. This was a suit in equity to establish and enforce a trust. The defendant individually and as trustee filed a motion to strike and for a more specific statement, and also a motion to strike and separate the causes of action. These motions were sustained either wholly or in part, and plaintiff was given leave to file separate suit against the defendant individually. The plaintiff appealed directly on such ruling on said motions. He also filed a substituted petition to meet the ruling of the court on the motions. There was a motion in this court to dismiss the appeal on the ground that the order sustaining the motion was not an appealable one, and it was also claimed that by filing a substituted petition in accordance with the order of the court the plaintiff waived the error of the trial court in its ruling upon the motions. Under such a state of record, we said on pages 574 and 575 of the opinion in 177 Iowa:
"It is said that no appeal will lie from such a ruling and that we should refuse to consider it, and it is also contended that plaintiffs waived the error, if any, in the ruling. Upon the latter proposition we may say that the record shows no voluntary waiver. Plaintiffs were compelled by the court to file an amended and substituted petition to meet certain rulings made by it, and in complying therewith they did not waive the error in the ruling on the motion to strike. We are also disposed to think that in view of the peculiar nature of the motion and the effect the ruling may have on the case, an appeal may be taken therefrom under the provision of section *Page 1366
4101 of the Code (section 12823, 1931 Code.) * * * A motion to dismiss the appeal has also been submitted with the cases. In view of the disposition we make of it, it is unnecessary to do more than say that the motion is without merit, and that it is overruled."
Following the foregoing quoted ruling, we conclude that appellants did not waive their motions or the rulings thereon or the appeals that had been taken from such rulings by filing answer to avoid a default and expressly stating in such answer that they did not waive their motions or the rulings thereon, or the appeals that had been taken, but expressly relied and insisted thereon. It follows that the motion to dismiss the appeal must be, and it is, overruled.
[5] It appears that this matter has been pending in the trial court since the filing of the original claim, August 6, 1931. For more than three years the claimant has persistently contended through repeated petitions, amendments, and various substituted petitions to inject into the proceedings his theory as to his rights as against parties other than the estate against which his original claim was filed. There were no appeals from rulings striking and dismissing the various pleadings of the claimant, and such rulings and judgments were met by the claimant only by refiling like or similar pleadings in place of the ones the court had stricken and dismissed. The original claim as made against the C.H. McNider estate should be tried and disposed of, and, if established, the claimant may proceed in any way open to him to reach the assets of the estate to satisfy any judgment that he may obtain, or he may proceed to assert, in the proper forum, any claims that he may have against third parties independently and apart from the claim against the estate.
It is our conclusion that the order of the trial court overruling the motions to strike and dismiss count one of the "Second substituted petition" was erroneous, and the case should be, and it is, reversed on the appeals of all defendants, and remanded with instructions that the issues remaining be disposed of expeditiously and in conformity with the mandate of this opinion.
Reversed and remanded.
MITCHELL, C.J., and CLAUSSEN, KINTZINGER, STEVENS, and DONEGAN, JJ., concur. *Page 1367
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This is an action in equity for the partition of certain real estate situated in Iowa City, Johnson County, Iowa, record title to which was in the name of Henrietta K. Petkin at the time of her death. Henrietta died intestate without issue, a resident of Cook County, Illinois, on April 19, 1933, leaving the defendant, Wlady F. Petkin, as her surviving spouse. She left certain personal property, situated in the State of Illinois, aggregating approximately $3,000 and was seized in fee simple at the time of her death of the following described real estate, situated in Johnson County, Iowa, to wit: The south half of lot 9 in block 6 of Lyon's second addition to Iowa City, Iowa. The total value of all said real estate and personal property according to the testimony was less than $7,500. Fred Hopp, the appellant, brought this action in partition in Johnson County, Iowa, alleging that as father of said deceased, Henrietta K. Petkin, he was the owner of two-thirds of the above-described *Page 610
real estate, and that the appellee Wlady F. Petkin, surviving spouse of Henrietta K. Petkin was the owner of an undivided one-third thereof. In the second division of the petition appellant alleged that Henrietta K. Petkin was the daughter of appellant, born out of wedlock.
Appellee, in answer to said petition, alleged (1) that the entire estate of Henrietta K. Petkin was less than $7,500, including the Iowa real estate, and that appellee as surviving spouse became the sole owner of said real estate under the provisions of section 12017 of the Iowa Code of 1935; (2) he denied that appellant was the father of said deceased, but alleged that said appellant was her step-father. By way of cross petition the same matters were set up, and affirmative relief was asked, praying that judgment be entered decreeing the defendant, appellee, to be the sole owner of the Iowa real estate and rentals. No answer or reply was filed to appellee's cross petition. The trial court rendered decree finding that appellant had failed to establish the material allegations of his petition, and that appellee had established the material allegations of his cross petition and was entitled to the relief prayed for therein, and rendered judgment and decree establishing title to said real estate in appellee and judgment against appellant personally and as ancillary administrator of the estate of Henrietta K. Petkin for $328.18 for net rentals collected from said property. From this decree plaintiff has appealed.
Two issues are raised by the pleadings: (1) The issue of paternity of Henrietta K. Petkin. (2) If paternity is established in appellant, whether or not the defendant-appellee is entitled under section 12017, Iowa Code of 1935, to all of the property of said deceased, where the value does not exceed $7,500.
The deceased was born out of wedlock in Germany. Her mother was Wilhelmina or Minnie Heyden. When Henrietta was about two years old, she, along with her mother, Minnie Heyden, and her grandparents immigrated to this country. Among the immigrants on the boat was a young man by the name of Fred Hopp who came along with the Heyden family. This group of immigrants settled first in Benton, and later in Johnson County, Iowa, and soon thereafter young Fred Hopp married Minnie Heyden, to which union several children were born. Henrietta lived in this family with her mother and stepfather and half brothers and sisters and went by the name of *Page 611
Hopp, called Fred Hopp her father, and was, to all outward appearances, looked upon and spoken of as one of the Hopp children. At the time of this trial, Minnie Hopp, nee Minnie Heyden, was deceased. All the immigrants who came over to this country with the Heydens were likewise deceased, except Fred Hopp and a Mrs. Lena Rusbult, a sister of Minnie Heyden, who was 24 or 25 years of age at the time this family came to America. This sister, now 87 years of age, was a witness in the case and testified that Minnie Heyden, mother of Henrietta K. Petkin, told her that an army man by the name of Fisher was the father of Henrietta; that Minnie Heyden's father had Henrietta baptized under the name of Fisher; that as a matter of family history Fisher, and not Fred Hopp, was Henrietta's father.
Henrietta's half-sister, Mrs. Mary Gorsch, as a witness for plaintiff, on cross-examination testified that she knew as a matter of family history, that it was talked over by her parents and her brothers and sisters, that her relationship to Henrietta was that of half-sister, they having the same mother. In addition to this, the confirmation record of the German Evangelical Lutheran St. John's Church at Homestead, Iowa, showing the confirmation of Henrietta, gives her mother's name as Wilhelmine Heyden, but does not give any name as father. Other entries in this record give both parents. This record was made several years after Fred Hopp and Minnie Heyden were married. Fred Hopp, who was personally present in court and who ought to know something about this matter, for some reason did not take the witness stand. There is not a word of evidence touching the relationship or association of Minnie Heyden and Fred Hopp in Germany prior to the time of the birth of this child. There is some evidence that at the date of emigration, when this child was two years old, Fred Hopp was "keeping company with Henrietta's mother". The child being born out of wedlock, two years prior to marriage, there is no presumption to aid the plaintiff. The burden of proof rested upon him. This evidence would seem to be quite conclusive that Fred Hopp was not the father of Henrietta.
Appellant relies on the testimony of two or three neighbors and Mrs. Gorsch, half-sister of Henrietta, to the effect that Henrietta was treated as his child by Hopp, that she called him "father" and went under the name of "Hopp". And upon the records of the probate court of Cook County, Illinois, in the *Page 612
matter of the proof of heirship in the estate of Henrietta K. Petkin, on ex parte hearing without notice, on the testimony of the defendant, Fred Hopp was recorded as the father of Henrietta. Under the Illinois statutes this record is only prima facie evidence of heirship. Furthermore, while this estate was still pending, this record was set aside and a new record of heirship found, in which Fred Hopp is not listed as father, and in which the brothers and sisters of Henrietta are recorded as half-brothers and half-sisters. This last record was likewise made on the testimony of the defendant alone. It would seem the probative force of this record is of little value.
The fact that this little girl, two years old, who grew up in the home of this appellant who was married to her mother, called him "father" and went about as a member of his family under the name of "Hopp" has little weight in establishing the paternity, in the light of the family history, including the declaration of the mother of the illegitimate child that a man by the name of Fisher was her father, that she was baptized under this name, and that as a matter of family history the other children born into this Hopp family were half-brothers and half-sisters of Henrietta, they having the same mother. The declarations of the mother, who was deceased at the time of the trial, are admissible as to the paternity of her child, Henrietta, born out of wedlock. Robertson v. Campbell, 168 Iowa 47, 147 N.W. 301. Likewise, declarations in the family as a matter of family history and pedigree are admissible upon the principle "`that they are the natural effusions of a party who must know the truth, and who speaks upon an occasion when his mind stands in an even position, without any temptation to exceed or fall short of the truth.'" Alston v. Alston, 114 Iowa 29, 35, 86 N.W. 55, 57.
No one can read this record without being abidingly satisfied that the overwhelming weight of evidence refutes appellant's claim in his petition that he is the father of Henrietta Petkin. This being true, and this being a vital, material and necessary fact to be established, his cause must fail for want of proof. The real estate being situated in Iowa, the laws of descent of this state govern. Putbrees v. James, 162 Iowa 618, 144 N.W. 607; Ehler v. Ehler, 214 Iowa 789, 243 N.W. 591. Under our statute, section 12031, a father may inherit from his illegitimate children, where paternity has been established as therein provided, that is, "when the paternity is proven during his life, or *Page 613
they have been recognized by him as his children; but such recognition must have been general and notorious, or else in writing. Under such circumstances, if the recognition has been mutual, the father may inherit from his illegitimate children."
The conclusion we have reached on this branch of the case makes it unnecessary to determine the other question. The judgment of the trial court must necessarily be affirmed. — Affirmed.
PARSONS, C.J., and DONEGAN, ANDERSON, KINTZINGER, RICHARDS, ALBERT, and STIGER, JJ., concur.
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The defendant in this action on March 16, 1927, signed a demand note made payable to the Iowa State Savings Bank, of Cedar Rapids, Iowa. On November 14, 1934, the bank was placed in receivership and defendant's note was thereafter held as a part of the assets. It was held by the receiver until sold to the plaintiff on June 16, 1942. On July 8, 1943, the plaintiff brought an action on this promissory note. The defendant filed a motion to dismiss (Rules 67, 104 (b), and 111, Iowa Rules of Civil Procedure), and affirmatively pleaded that the plaintiff's cause of action was barred by the statute of limitations of the state of Iowa. Section 11077 (6), 1939 Code of Iowa. The trial court sustained the motion on August 2, 1943. The plaintiff excepted to this ruling, elected to stand thereon, and refused to plead further. Judgment was thereafter rendered against the plaintiff and he has appealed.
It is the appellant's contention that during the seven years and seven months that the note was held by the superintendent of banking, who had been named as receiver for the bank that had previously held the note, the statute of limitations was suspended. This is the sole question involved in this appeal. The trial court held against the contention of the appellant. We hold that the trial court was correct in its ruling.
[1] I. A note payable on demand is payable upon the date of its execution and is barred by the statute of limitations in ten years. Citizens Bank v. Taylor, 201 Iowa 499, 501, 207 N.W. 570, and cases cited; In re Estate of Fuller, 228 Iowa 566, 569, 293 N.W. 55. The note sued on was a demand note and if the statute of limitations was not extended by reason of the contention *Page 437
of the appellant the note became barred on March 16, 1937.
[2] II. It is the contention of the appellant that during the time the note was held by the receiver it was under the control of the superintendent of banking and by reason of his official capacity the statute was tolled. We have held that the superintendent of banking is a state officer. In re Receivership City-Commercial Savings Bank, 210 Iowa 581, 583, 231 N.W. 342. See, also, sections 9130, 9131, 1939 Code of Iowa. Section 9239 of the 1939 Code of Iowa provides for the appointment by the district court, or a judge thereof, in which district an insolvent bank is located, of the superintendent of banking as receiver of such a bank and that its affairs "shall thereafter be under the direction of the court * * *." Section 9242 of the 1939 Code of Iowa further provides that the superintendent of banking "* * * shall be the sole and only receiver or liquidating officer for state incorporated banks and trust companies * * *." The question is then presented whether or not the statute of limitations will run against the superintendent of banking who acts as receiver of a bank. It is our conclusion, under the facts as pleaded, that the statute would run against the superintendent of banking, even if we did not consider that he was acting as receiver. The pleadings show that he was acting in a representative capacity. In the case of Payette v. Marshall County, 180 Iowa 660, 663, 163 N.W. 592, 593, we said:
"The state's interest, if any, is merely nominal, and it is settled in this jurisdiction that, where the state stands in a merely representative capacity and not in the exercise of its sovereignty, its exemption from the statute of limitations is not effectual. State v. Henderson, 40 Iowa 242."
See, also, City of Burlington v. Burlington M.R.R. Co.,41 Iowa 134, 141; Great Western Ins. Co. v. Saunders, 223 Iowa 926, 930, 274 N.W. 28; City of Waterloo v. Union Mill Co., 72 Iowa 437, 439, 34 N.W. 197.
Even if we were to hold, which we do not, that the statute of limitations does not run against the superintendent of banking in his official capacity, under the pleaded facts, we have heretofore held that the superintendent of banking in such official capacity, and the superintendent of banking, as receiver, under *Page 438
appointment of court, are two separate parties. Bates v. Niles
Watters Sav. Bk., 226 Iowa 1077, 1079, 1080, 285 N.W. 626; Bates v. Oxford Junction Sav. Bk., 221 Iowa 814, 817, 267 N.W. 677.
III. Our attention has not been called to any statutory exception in the Iowa Code that would toll the statute of limitations during the time a claim is held in receivership, and in our independent research we have not found any such holding. This court has previously held that where no exception or exemption is found in the statute no such exemption or extension exists.
In the case of Collier v. Smaltz, 149 Iowa 230, 235, 128 N.W. 396, 398, Ann. Cas. 1912C, 1007 [error dismissed 223 U.S. 710, 32 S. Ct. 519, 56 L. Ed. 624], in commenting upon the question as to whether or not a statute of limitations was tolled during the period an individual was insane, we said:
"As to whether he was insane at the time of and for several years subsequent to his wife's death the evidence is in sharp conflict, but, conceding him to have been insane during this period, it does not follow that the statute was tolled by reason of such disability. The act contains no exemption in favor of insane persons, and it is elementary that, save when otherwise provided by the Legislature, no such exemption exists. Vance v. Vance, 108 U.S. 514 (2 Sup. Ct. 854, 27 L. Ed. 808); Campbell v. Long, 20 Iowa, 387; Shorick v. Bruce, 21 Iowa, 307."
In the case of Boyle v. Boyle, 126 Iowa 167, 168, 101 N.W. 748, 3 Ann. Cas. 575, we said:
"No exception is made in favor of a creditor laboring under disability, and, in the absence thereof, courts generally hold that none exists." (Citing cases.)
In 34 Am. Jur., Limitation of Actions, 153, section 189, it is stated:
"The enumeration of specific exceptions by the legislature excludes all others by implication, and usually precludes the court from creating additional exceptions by judicial construction." *Page 439
It is provided in section 11020 of the 1939 Code of Iowa that:
"When the commencement of an action shall be stayed by injunction or statutory prohibition, the time of the continuance of such injunction or prohibition shall not be part of the time limited for the commencement of the action, except as herein otherwise provided."
The record does not disclose that any injunctive relief was pending at any time and we know of no reason why the statute should be tolled by reason of the fact that the note was held in a receivership proceeding.
It is our holding that a receiver is subject to the same rules that apply to any other individual, unless there is some statutory exception which we have not been able to find and which appellant has not brought to our attention. In support of our holding, it is stated in 45 Am. Jur., Receivers, 129, section 156, as follows:
"A receiver holds the property coming into his hands by the same right and title as the person for whose property he is receiver, subject to * * * defenses * * * existing at the time of his appointment. In other words, a receiver possesses no rights with respect to the trust property superior to those which would be possessed by the one for whom he was appointed, were the latter acting for himself."
As a further indication that the legislature has not given any exception to the running of the statute of limitations while a note is held by a receiver of a closed bank, attention is called to section 11033.1 of the 1939 Code of Iowa, which specifically limits the life of a judgment obtained on credits assigned by a receiver of a closed bank to two years.
Authorities of other states give support to the conclusion we have previously reached, that the statute of limitations does run while notes or other property are in the possession of a receiver. In the case of Commissioner of Insurance v. Bristol Mutual Liability Ins. Co., 279 Mass. 325, 328, 181 N.E. 208, 210, it is said: *Page 440
"The general rule is that when the period prescribed by a statute of limitations has begun to run, it will continue to run even though a receiver has been appointed and an injunction has issued against the bringing of actions against the receiver. Paul v. Fidelity Casualty Co., 186 Mass. 413 [71 N.E. 801, 104 Am. St. Rep. 594]. Cain v. Seaboard Air-Line Railway, 138 Ga. 96, 98 [74 S.E. 764]. Williams v. Taylor, 99 Md. 306, [57 A. 641]. Harrison v. Dignan, 1 Con. Laws, 376, 378. In case such peremptory injunction has issued against the bringing of actions against the receiver or against the owner of the property of which he is receiver, the holder of a claim liable to be tolled by the statute of limitations may seek relief by petitioning the court which appointed the receiver and issued the injunction for leave to bring an action at law or suit in equity, and to modify the injunction accordingly, or for leave to file an intervening petition for the establishment of his claim."
In O'Connell v. Chicago Park District, 376 Ill. 550, 557,34 N.E.2d 836, 840, 135 A.L.R. 698, we find this statement:
"The cause of action having once accrued, the statute began to run at once, because the possession was wrongful from the outset, and no subsequent demand and refusal could start it afresh. (Watkins v. Madison County Trust and Deposit Co., supra.) The appointment of a receiver did not stop its running. (Houston Oil Co. of Texas v. Brown [Tex. Civ. App.], 202 S.W. 102, certiorari denied, 250 U.S. 659 [40 S. Ct. 9], 64 L. ed. 1194; 4 Cook on Corporations (7th ed.), p. 3367, Sec. 871.) The statute runs against the right of action, not against the holder thereof."
A further authority to the same effect is found in Houston Oil Co. v. Brown, Tex. Civ. App., 202 S.W. 102, 109 [certiorari denied 250 U.S. 659, 40 S. Ct. 9, 64 L. Ed. 1194], where the following statements are found:
"A consideration of the contentions of both parties leads us to the conclusion that the contention of appellant is unsound. 25 Cyc. 1282, states the following: *Page 441
"`As a general rule, mere appointment of a receiver does not in any way affect the running of the statute of limitation.'
"Thompson on Corporations, §§ 6894, 6895, states:
"`The mere appointment of a receiver does not suspend the right of action against a corporation itself, unless the proceedings in which the receiver is appointed has resulted in dissolving the corporation, or it is the purpose to judicially dissolve the corporation, and the court enjoins the prosecution of any action against the corporation during the pendency of the suit, and gives as the reason for this rule because the existence of the corporation is not destroyed or even suspended by reason of the property or franchises being held in custody of the court of equity.' Johnson v. Talley, 60 Ga. 540; White v. Meadowcroft, 91 Ill. App.? 293; Williams v. Taylor, 99 Md. 306, 57 A. 641; Kirkpatrick v. McElroy, 41 N.J. Eq. 539, 7 A. 647; Meuseback v. Half Bro., 77 Tex. 187, 13 S.W. 979; Belt v. Cetti, 100 Tex. 98,93 S.W. 1000; Rindge v. Oliphint, 62 Tex. 685; Thomas v. Greer, 6 Tex. 372; Richardson v. Vaughan, 86 Tex. 93,23 S.W. 640; Houston Oil Co. v. Griffin, 166 S.W. 902.
"In the Griffin Case, just mentioned, it is held that the appointment of a receiver did not stop the running of the limitations that had begun. Cook on Corp. (7th Ed.) vol. 4, p. 3367, § 871, states the general rule that the appointment of a receiver does not stop the running of limitations in favor of a corporation, and cites Jackson v. Fidelity Co., 75 Fed. 359, 21 C.C.A. 394; Int. Ry. Co. v. McCulloch, 24 S.W. 1101. In the same volume, p. 3369, § 871, he says: Even though a receiver has been appointed, the corporation may, by leave of the court, bring actions in its own name against any one, except the receiver, to try the legal title to property. Ry. Co. v. Sandoval, 111 Ill. 32; M., K. T. Ry. Co. v. Graham, 12 Tex. Civ. App. 54,33 S.W. 576; Smith v. T. N.O., 101 Tex. 410, 108 S.W. 819."
The appellant has cited as authority for his contention McGee v. Kirby, 189 Okla. 488, 118 P.2d 199, 200. Our study of this case discloses the fact that there is statutory authority for the holding of the Oklahoma Supreme Court. The Oklahoma statute provides that the liquidation of building and loan associations *Page 442
shall be under the supervision and control of the bank commissioner, and in the cited case it is stated:
"* * * that the Bank Commissioner shall maintain suits for collection of all outstanding obligations due such association, which suits shall be brought in the name of the State of Oklahoma on the relation of the Bank Commissioner, and that the assets are in custodia legis. * * * This court has consistently held that the statute of limitations does not run while the assets of a state bank are in the possession of the Bank Commissioner."
In connection with the holding of the Oklahoma court, it is of interest to observe the following statement found in the annotation in 122 A.L.R. 945, where, in commenting upon the rule as to the statute of limitations not running against the state, the following is set forth:
"In reliance upon this rule it has been sometimes argued that a liquidator acting in behalf of the government in liquidating the affairs of an insolvent bank is entitled to the same immunity from the operation of the statute of limitations as the government itself, and that during the period of the liquidation the statute is suspended as to him in the enforcement of choses in action belonging to the bank, or of the superadded liability of its stockholders. But with the exception of one jurisdiction (Oklahoma), this argument is generally repudiated, the view taken being that the rule that the statute of limitations does not run against the state applies only in actions in which the state has a beneficial interest, and does not apply where the state is a nominal party suing through the liquidator for the benefit of third persons; and that since in the enforcement of the choses in action belonging to the insolvent bank, or of the superadded liability of its stockholders, the state, although a nominal party to the suit through the liquidator, has no direct beneficial interest, and the recovery will inure to the benefit of the depositors or other creditors of the bank, the liquidator is as much bound by the statute of limitations as the bank itself." Citing Porter v. United States, 9 Cir., Idaho, 1928, 27 F.2d 882 (certiorari denied in 1929, 279 U.S. 875, 49 S. Ct. 340, 73 L. Ed. 1009); State ex rel. Fulton v. Bremer, 1935,130 Ohio St. 227, 198 N.E. 874; *Page 443
Shaw v. Bush, 1933, Tex. Civ. App., 61 S.W.2d 526; McNutt v. Cox, 133 Tex. 409, 129 S.W.2d 626, 122 A.L.R. 941. See, also, Anderson v. Nawa, 1914, 25 Cal. App. 151, 143 P. 555.
The authorities which we have cited support the trial court in its ruling sustaining the motion to dismiss appellant's petition. We therefore affirm. — Affirmed.
All JUSTICES concur.
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Mary T. Leighton was the owner of the premises in controversy, and, she being deceased before the commencement of this suit, plaintiffs sue as her executors. Defendant is a corporation, organized under the laws of the state of Iowa.
On July 31, 1922, Mary T. Leighton and the defendant, the Iowa Bake-Rite Company, entered into a lease for the store room and basement situated at No. 104 South Market 1. LANDLORD AND Street, in the city of Ottumwa, Iowa, for a term TENANT: of three years, commencing August 1, 1922, at a rent: monthly rental of $165, to be paid monthly in actions: advance. The defendant moved into said building, tenantable and occupied the same until the 13th day of premises: July, 1924, when a fire occurred in said leased jury premises, which rendered the same untenantable, question. and defendant moved its baking machinery and personal property into another building. Defendant paid the rent for the *Page 412
month of July, and the plaintiffs sue to recover for the balance of the term under the lease.
Five defenses are made:
1. That the fire made the building untenantable, and the termination of the lease because of the fire.
2. That because of the fire the building became untenantable, and the owner would not agree to reconstruct the same, and that appellant terminated and surrendered the lease, and thereby was released from liability for the payment of rent thereafter.
3. That the leased premises were not restored to a tenantable condition at any time during the balance of the term thereof, which expired August 1, 1925.
4. That it was the duty of the appellees, after the fire, to reconstruct and repair the leased premises, and also the duty of appellees, after appellant terminated the lease, to use reasonable diligence to relet the property, which they refused and neglected to do.
5. The affirmative defense of estoppel.
At the close of all of the testimony, each party made a motion for a directed verdict. Defendant's motion was overruled, and plaintiff's motion sustained. A verdict was returned, and judgment entered for $1,815 with interest.
The defendant corporation was engaged in operating bakeries in several cities within this state, and in the city of Ottumwa operated both a wholesale and retail business, and was so engaged at the time of the fire in controversy. The premises rented under this lease were only a part of the building, there being at least one store room, and possibly more, above the same, as a part of the same building, which was flanked on either side by a similar building, one of the adjoining buildings being occupied for restaurant purposes. The fire occurred on July 13, 1924, and originated in a partition between the restaurant and appellant's store room. It resulted in the burning of a part of the joists in the floor between this room and the basement, and the destroying of the partition wall between these two rooms for a distance of about 20 feet. The windows in the rear of the Bake-Rite room were broken by the heat or by the firemen, and the door and transom were scorched so that they had to be replaced. The painting and decorating were destroyed, a large *Page 413
amount of water being poured into the room by the fire department, and the walls and ceiling were also damaged from the use of the water. There seems to be no dispute in the testimony that the room occupied by the Bake-Rite Company was untenantable immediately after the fire.
Ben S. Benson, the agent of appellees, testified that the ovens used by the Bake-Rite Company were put out of operation by the fire, and that he knew that the fire made their room untenantable, not only from the fire itself, but from the smoke and water, and that the front room was entirely water-soaked and damaged by the fire. Immediately after the fire, the representatives of the Bake-Rite Company went to Benson, who had charge of the renting of this building, and wanted to know whether he was going to repair the room as quickly as possible, and he refused to give them a satisfactory answer to this question. This occurred on the Tuesday following the fire, which was on Sunday. Benson admits that Sunstrum (one of the officers of the defendant company) told him that he considered that the lease would terminate, and that he (Benson) would receive written notice of the termination of the lease because of the fire, which notice was subsequently given. Benson also admits that, on July 30th, the local manager of the Bake-Rite Company tendered him the keys to the leased property, and that he accepted them, and never tendered them back to any officer of the Bake-Rite Company.
On July 15th, in pursuance of the oral conversation between the officers of the Bake-Rite Company and Benson, a letter was written, in which inclosure was made of a check for $165 for the rent for July, the letter proceeding:
"This letter will give you official notice that we consider our lease terminated by reason of the recent fire, and in accordance with the terms of said lease; and which letter verifies the verbal notice given you today."
On July 18th, Mary T. Leighton, through her agent, acknowledged receipt of the above letter, and, with reference to the termination of the lease, the letter proceeds:
"The undersigned hereby denies your right to terminate said lease under the terms thereof by reason of said fire, and hereby notifies you that promptly after the occurrence of the fire *Page 414
she took steps toward the repair of the premises so leased by you and within a reasonable time for the repair of same will have the damage caused by the fire repaired and in good shape. She therefore insists that said lease is still binding and was not terminated by reason of said fire, nor under the terms of said lease, are you entitled to terminate same by reason of said fire."
On July 26th, an attorney for the Bake-Rite Company indited a letter to Benson, as agent for appellees, calling attention to the terms of the lease, and reciting that the same was terminated, and that the company considered its liability for the payment of rent under the terms of the lease at an end.
Some further correspondence passed between these parties along similar lines. The Bake-Rite Company insisted that they had a right under the lease, which they had exercised in terminating the same; the other parties claiming that no such right existed, and that said lease had not been terminated. Both parties had insurance on this building; and, of necessity, neither could do anything until adjustments were made by the insurance companies, which adjustments were made about the 28th day of July, after which the appellees promptly contracted with builders to repair the damages done to the building by the fire. This damage was all repaired, except the painting, papering, and decorating of the room, which was never done. At this point, the appellant insists that this work was necessary, in order to make the room again tenantable for its business purposes. Appellees insist that the building was tenantable without the painting, papering, and decorating. This question becomes important, by reason of certain provisions of the lease, reading in part as follows:
"The second party agrees on his part to pay said rent as above stipulated except when the said premises are untenantable by reason of fire. * * * Should the building herein leased be destroyed by fire or otherwise, before or after the commencement of this lease, then this lease to be void."
It is insisted by appellant that, under the above provision of the lease, — it being admitted that the building was untenantable immediately after the fire, — it thus continued until the end of the lease, and therefore that it is not liable for the rent after the time for which it had already paid. The question therefore *Page 415
was (it being assumed that the repairs had been made on the building), Was it necessarily a part thereof, to make the building tenantable, that the room should be painted, papered, and decorated? It seems to us that this is a question of fact, and one which is disputed in the record. This being so, it was a question for the jury to answer, and not one for the court.
The next question raised is as to the force and effect of the 2. LANDLORD AND second clause above quoted from the lease, to TENANT: wit: "Should the building herein leased be rent: destroyed by fire or otherwise, then this lease "destruc- shall be void." tion" of building: negative definition.
In the case of Chase Co. v. Fleming, 143 Iowa 452, we had before us a lease in which the terms were that:
"* * * in case the buildings on said premises or any part thereof shall be damaged by fire * * *, so that the same shall be thereby rendered unfit for use and occupation, then and in such case the rent hereinbefore reserved, * * * shall be abated until the same premises shall have been duly repaired and restored by the lessors * * *; or in case the said buildings shall be totally or substantially destroyed, then at the election of the lessors * * * the estate hereby created may thereupon be determined."
We there held that the words "total or substantial" destruction would not import the idea of annihilation, but an effective destruction of the building, as suggested. We further said in that case:
"In other words, although there remain substantial parts or elements of the building some or all of which could be used in restoring it to its original condition, yet, if the injury is so complete as to render it entirely untenantable, and the restoration of it is, in practical effect, the construction of a new building, rather than a mere repair of the old one, then it is destroyed `substantially,' if not `totally,' within the meaning of the agreement. Stated otherwise, the subject of the treaty was the specific organized thing which we call a building, and it was the destruction of that thing for the practical uses for which it was erected, and not the destruction of all the materials or all the parts comprising it, which would justify a cancellation of the lease. The question of restoration or repair depends, also, *Page 416
in some degree upon its wisdom or practicability as a business proposition. The inquiry is not satisfied by a mere showing that the restoration of the building, incorporating the original foundation and walls, is possible, but the question of the expense to be thus incurred, in comparison with the construction of a new building with new materials, and a consideration of the value, safety, and desirability of the repaired or restored building, as compared with a new one of like plan and proportions, are matters which the lessors are not required to ignore in reaching their conclusion."
In the Chase case, the evidence showed that to construct a similar building would cost from $45,000 to $55,000, and the cost of restoring the old building after the fire was estimated at from $27,000 to $47,000. It was there held that there was a substantial destruction of the building, to all practical purposes, and that, by the expenditure of this amount by way of repairs, "the resulting structure would have been in all reasonable intents a new building." Applying the doctrine of theChase case to the case at bar, we conclude that there was not a destruction of this building, within the meaning of the provisions of the lease, which would render the lease void from and after the time of the fire. As throwing light on this subject, see Tedstrom v. Puddephatt, 99 Ark. 193 (137 S.W. 816);Barry v. Herring, 153 Md. 457 (138 A. 266); Corbett v. SpringGarden Ins. Co., 155 N.Y. 389 (50 N.E. 282); 16 Ruling Case Law 963, Section 473.
Another defense made was the claim that the lessee had abandoned and surrendered said premises, and thereby was not liable for future rent. Some of the officers of 3. LANDLORD AND the Bake-Rite Company testified that they went TENANT: to Benson immediately after the fire, and said, leases: in substance, that, if he was not going to mutual repair the building for their occupancy, they termination: would surrender the same, and elect to cancel jury the lease; and that Benson refused to say question. whether or not he would repair the building, and they thereupon told him that they would notify him of the termination of the lease (which they afterwards did by letter); and that he said, "All right." It is the claim of the appellant that this amounted to a mutual agreement to terminate or abandon the lease. The *Page 417
assent of Benson, as testified to by the officers of the company, is denied on his part.
The law seems quite well settled, and it is, in fact, undisputed in the brief of the appellees herein, that parties to a lease may, by mutual consent, terminate the same, and if they do, the tenant is not liable for future rent, unless the same is stipulated for in the agreement terminating the lease. The question in the record before us, however, we do not think was a question for the court. The Bake-Rite Company insists that by agreement the lease was abandoned and terminated, and the local representative of the landlord denied that he so agreed or consented. This surely leaves a question of fact for the jury. There was testimony on both sides of this proposition: to wit, certain letters written by Benson, in which he refused to terminate the lease, and certain letters written by the Bake-Rite Company, or its representatives, asserting that the lease was at an end.
Appellant further insists that, after the adjustments were made with the insurance companies, and they moved their property from the building, they turned the keys over to Benson, and he accepted the same, and by so accepting he confirmed the termination of the lease. Benson testified that he accepted said keys simply for the purpose of getting possession of the building, to make the necessary repairs. Under this state of the record, we think this question as to whether or not there was a termination or abandonment of this lease by mutual agreement should have gone to the jury.
It is further insisted that, if there was not an abandonment by mutual agreement, but an abandonment in fact by the Bake-Rite Company, then a duty rested upon the landlord to 4. LANDLORD AND use reasonable efforts to reduce the damage by TENANT: reletting the property. On this question the leases: cases generally are not in harmony. In this abandonment: state we are committed to the doctrine that it duty of is the duty of the landlord to minimize his landlord. damage, when the tenant abandons leased property, by using reasonable diligence to relet the property. InReinking v. Goodell, 161 Iowa 404, at 412, we said:
"We have frequently recognized the rule that one who is threatened with damage as the result of the default of another must prevent such damage if he can do so with reasonable diligence and at slight expense." *Page 418
In Hickman v. Breadford, 179 Iowa 827, we had before us a set of facts in which the tenant abandoned the premises, and the landlord took possession, and re-rented the same. The case holds two things: First, that the re-entry and re-leasing under such circumstances do not work, by operation of law, an acceptance of the tenant's abandonment; and second, that, where the landlord so re-enters before the expiration of the lease, and, for the benefit of the tenant and to avoid loss, re-leases the property to a new tenant, he is entitled to the expenses incident to the procurement of a new tenant. At most, this is the holding in that case. Whatever was said in the case with reference to the right of the landlord to allow the property to stand idle, and to hold the tenant for the entire rent, is merely dictum.
In the case of Roberts v. Watson, 196 Iowa 816, we had this question squarely before us, and we there said:
"It was, of course, the duty of the plaintiffs to use reasonable diligence to let the property at the best obtainable rent, and thereby obviate or reduce the resulting damages; but we find nothing in the record which fairly indicates a failure in this respect."
As supporting this contention, see International Tr. Co. v.Weeks, 203 U.S. 364 (51 L. Ed. 224); Zabriskie v. Sullivan, 80 N.J. Law 673 (77 A. 1075); Rose Merc. Mfg. Co. v. Smith,139 La. 217 (71 So. 487); West Side Auction House Co. v. ConnecticutMut. L. Ins. Co., 186 Ill. 156 (57 N.E. 839); Campbell v.McLaurin Inv. Co., 74 Fla. 501 (77 So. 277). The burden of proof was on the appellees to show diligence in reletting the property.Woodbury v. Sparrell Print, 198 Mass. 1 (84 N.E. 441).
Under the record in this case, it is claimed by the appellant that the appellees had an opportunity to relet this building at the same rental; and the appellees admit this, but claim that the renter was not a desirable one, because of the line of business in which he was engaged. The question of whether or not appellees were entitled to refuse to relet the building on the ground alleged by them under the record, was also a question of fact for the jury.
Under the conclusions we reach on these various questions, *Page 419
it is apparent that the court was not warranted in directing a verdict in favor of the appellees. — Reversed.
STEVENS, C.J., and MORLING and WAGNER, JJ., concur.
De GRAFF, J., concurs in result.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3433009/
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It appears in this case that the defendant Nels Selindh was the operator of a garage in the city of Des Moines, doing repair work on automobiles in connection therewith. That on or about the 23d of October, 1933, between 6 and 7 o'clock in the evening, Selindh was engaged in towing an automobile along Des Moines street, in the city of Des Moines, the automobile being towed belonging to Mrs. Frank Perowsky; that said Selindh was called by a sister of Mrs. Perowsky, Sarah Werblosky, to take the automobile to his place of business for repairs. That Selindh and his son went in their Chevrolet coupe to get the Perowsky car, a Jewett sedan, and attached the Jewett car to their car by a chain towline, leaving the cars several feet apart. That defendant Nels Selindh was at the wheel of the Jewett car, behind, and his son, under his direction, was driving the front car. That as they proceeded east on Des Moines street, and were approaching Pennsylvania avenue, several children, including the plaintiff, a boy five years of age, were playing on the sidewalk. One of the children had snatched the cap of young Wallace Johnson and started running with it; the Johnson boy started in pursuit toward the automobiles, but the driver of the Selindh car saw the boy and hollered "Whoa" and stopped his car; the boy stopped, then suddenly dashed between the cars, and stumbled over the towline, and as he got up, the car being towed came up to the front car and caught the boy between the two cars and injured him — it does not appear how badly, but he cried out and was picked up, and later was removed to Broadlawns General Hospital, a public hospital in the city. There were a few bruises on his body, slight however, and upon his arrival at the hospital the physician and surgeon in charge examined Wallace.
[1] This being the only connection of Mrs. Perowsky and Sarah Werblosky with the matter, they cannot be held liable for the reason that Selindh was, under the doctrine ruling in Page v. Koss Construction Co., 215 Iowa 1388, 245 N.W. 208, an independent contractor. He was undertaking the removal of the Perowsky car to his garage to repair it. He used his own *Page 380
methods in that work, and neither of the two women is responsible for what methods Selindh used. Further, it is a well-settled rule in most jurisdictions and the reasoning will apply here, that under the common-law rule the owner of a car is not liable for the act of negligence of a garage man in towing a car to his place of business while he has the car in his possession as such garage man. Freeman v. Southern Life Health Ins. Co., 210 Ala. 459,98 So. 461; Andrews v. Bloom, 181 Ark. 1061,29 S.W.2d 284; Jones v. Bullard, 83 Cal. App. 179, 256 P. 555; Mattocks v. Emmerson Drug Co. (Mo.App.) 33 S.W.2d 142; Andres v. Cox,223 Mo. App. 1139, 23 S.W.2d 1066; Siegrist Bakery Co. v. Smith,162 Tenn. 253, 36 S.W.2d 80; Winerich Motors Sales Co. v. Ochoa (Tex.Civ.App.) 58 S.W.2d 193.
Section 5026 of the statutes says:
"In all cases where damage is done by any car driven by any person under fifteen years of age and in all cases where damage is done by the 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 is not applicable to this case, for, under its language, to make the owner liable, it must be driven by the consent of the owner. It was not so driven, under the record. The owner did not know that Selindh was driving the car, hence did not consent. Besides, as before stated, the defendant was an independent contractor, and, further, it appears to be the law that where a garage man takes possession of a car to drive it to his garage for repair only, his negligence while so taking it is not chargeable to the owner of the car.
At the close of all the evidence of the case, the defendants Perowsky and Werblosky moved for a directed verdict on several grounds. The Werblosky motion contained the ground that she was not the owner of the car, and that whatever consent she gave to Selindh to make repairs, was not as owner, and she is not, under the law, liable; and that Selindh was but an independent contractor, and hence she was not liable. Mrs Perowsky's motion contained the proposition that Selindh was in possession of her car and was taking same not with her consent or knowledge. These motions were rightfully sustained. For the reason that under the record there was shown no consent of the *Page 381
owner, and that Selindh was in reality an independent contractor, these defendants were not liable. So the liability, if any, in this case is on Selindh in not seeing the children playing on the sidewalk, or, if he did see them, in not stopping the rear car immediately on the stopping of the front car, and especially after the word "Whoa" was spoken by the driver of the first car. If the child was so injured at that time, then the question arises, were the injuries such as to give rise to a cause of action?
[2] The child was of such tender age that there is almost a conclusive presumption of the law that he was incapable of being guilty of negligence. In Johnston v. Delano, 175 Iowa 498,154 N.W. 1013, it was held that a child of the age of thirteen years was presumed not to be guilty of negligence, and as the age decreases, of course the presumption becomes stronger. The question of whether a child of seven years, bright and intelligent, is of sufficient age and intelligence to appreciate the danger when playing on a turntable, is one for the jury. Edgington v. B., C.R. N.R. Co., 116 Iowa 410, 90 N.W. 95, 57 L.R.A. 561.
The boy says he started to go across the street. That he saw the first automobile in the street, but did not see the one behind. He saw the lights on the front car, but none on the rear car; that the lights were turned on the rear car after it hit him. He said the chain stopped him; that he stumbled over the chain; that he got up and the back car drove up and hit him; that his brother picked him up from between the cars. He said he got hurt when the back car pushed him; the front car ran into his stomach and the rear car hit his back; that it smashed into his stomach; that he did not cry because he could not; that it did not bleed.
The mother testified that she did not see the accident; that the boy had never been hurt before, and never had any injuries up to that time. That his back was bruised; the front part of his chest began to swell and it kept getting larger and larger; that his clothes were in an awful condition; he had a bowel movement during the accident; that his bruises were over the chest mainly and the ear. That the ambulance came in about five minutes and took him to the hospital, the father going with him. That the boy was in the hospital over two months.
Bearing in mind that the child was of such tender age that he was presumed not to be guilty of contributory negligence; that he did receive injuries at the time of the accident, as testified *Page 382
to by his mother; that the rear car was not stopped when the driver of the towing car made the exclamation "Whoa"; that the defendant Selindh did not stop his car; did not put on the brakes so the car would stop; and that the back car came up and struck the boy, it seems to us there arose a cause of action, and that the motion made by Selindh for an instructed verdict should have been overruled.
The question then, of course, would come up as to what would be the damages. The testimony in regard to the boy after he was taken to the hospital shows that he was examined; that the physicians could see no injuries to him; that they concluded to make an "exploratory" operation, and did perform such an operation, and the testimony shows without dispute that the injuries the boy now complains of come from the effects of that operation.
The only question left in the case then is whether or not the results of the operation by the physicians were such as the plaintiff could recover for in this action. Phillips v. Werndorff, 215 Iowa 521, 243 N.W. 525, which decides that a party who has been negligently injured and settles with and releases the original wrongdoer, may not thereafter maintain an action against a physician for malpractice for injuries which he has settled. That, of course, can be sustained under the rule that there can be but one settlement for one tort or wrong, and that the case showed there was a release from all damages arising from or growing out of the accident, and the case was decided strictly upon that. In Purchase v. Seelye, 231 Mass. 434, 121 N.E. 413, 8 A.L.R. 503, a surgeon performed an operation upon the wrong side of the plaintiff in the supposed treatment of injuries previously suffered, and for something having no connection with the original injury. The court held that as there was no causal connection between the operation alleged to have been unskillfully and negligently performed and the injury, a new, separate, and independent cause of action arose, and the original wrongdoer could not be held liable therefor.
[3] Without in any manner undertaking to vary the rule laid down in Phillips v. Werndorff, 215 Iowa 521, 243 N.W. 525, i.e., that the original wrongdoer is liable for the aggravation of an injury resulting from the unskilled treatment of physicians and surgeons, if reasonable care was observed in employment, and in the cases in support thereof, Collins v City of *Page 383
Council Bluffs, 32 Iowa 324, 7 Am. Rep. 200; Rice v. Des Moines,40 Iowa 638, and other cases, there still remains in this case the question as to whether or not there is a showing of causal connection between the injury and the present condition of the boy, for the reason that it is shown that the operation made at the hospital was "exploratory", and made at once when the boy came into the hospital, and that whatever ills are now complained of, they are ills that grew out of that operation, and would not have happened but for the operation.
However, as the boy did receive some injuries at the time of the accident, they may have been slight or great, the evidence does not show, yet an injury received under these circumstances made a cause of action and would have sustained some damages, however slight, and we think there was evidence to take the case to the jury. So the court's instructions for a directed verdict for the defendant Selindh was error, but was correct in the case of Perowsky and Werblosky. [Doran v. Waterloo, C.F. N.R. Co. (Iowa), 147 N.W. 1100, has been cited in connection with the last three cited cases. The opinion cited has been superseded by an opinion on rehearing which is reported in 170 Iowa 614,153 N.W. 225.]
So the case is affirmed as to Perowsky and Werblosky, and reversed as to the defendant Selindh.
Affirmed in part; reversed in part.
DONEGAN, C.J., and ALBERT, MITCHELL, and KINTZINGER, JJ., concur.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3433010/
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James D. Gamble, a resident of Knoxville, died testate November 26, 1926. In due time, to-wit, on December 13, 1926, Gamble's will was duly admitted to probate. Jacob A. Wagner and John E.D. Gamble, the defendants-appellants, in accordance with the will were appointed executors of the estate to serve without bond. When the letters testamentary were issued, to the aforesaid executors, the clerk of the Marion county district court indorsed thereon the following:
"* * * Upon consideration hereof, it is hereby ordered and directed * * * that the within named Jacob A. Wagner and John E.D. Gamble give notice of their appointment as executors of the estate of James D. Gamble by posting notice thereof in four places in Marion County, Iowa."
Subsequent to the issuance of the letters testamentary, the clerk of Marion county entered on the probate docket of that county the following:
"December 13, 1926, Jacob A. Wagner and John E.D. Gamble appointed executors without bond. Notice by posting. Letters issued. Record 60."
The notice above directed by the clerk of the Marion county district court was duly made by the executors.
Then, as required by law, the executors proceeded to administer the estate of James D. Gamble, deceased. After the administration of the estate had thus proceeded for a period of approximately *Page 573
four years, the appellee-claimant, R.A. Anthony, filed a claim for $15,467.03. This claim was objected to by the executors on the theory that the statute of limitations had run against it. Such is true, the executors declare, because the claim was filed more than one year after notice of the appointment of the executors had been given, in accordance with the aforesaid order of the clerk of the Marion county district court.
A primary reason and, in the alternative, another reason, are assigned by the claimant why the executors' defense is not well taken:
First, the claimant says that the statute of limitations never commenced to run because the order of the clerk concerning the posting of notice of the executors' appointment was not spread upon the probate docket, as required by law; and
Second, in the alternative, the claimant declares that even if the notice were properly published, yet, because of equitable circumstances, the claimant's demand may be filed even at the late date before mentioned.
Following a hearing to the district court, the jury being waived, that tribunal found that the order of the clerk concerning the notice by posting was not spread upon the probate docket, as required by law. Not being content with its disposition of the case in that respect, the district court continued, and held in addition to the foregoing that equitable circumstances appear in the record, which, in any event, toll the statute of limitations. These propositions will now be discussed in the order named.
I. Before his death, the testator, James D. Gamble, was a partner of the firm which operated the Citizens Bank of Pleasantville. That institution was a private bank, owned by a number of persons, including the testator. Those owners of the bank operated the institution as a copartnership. Each partner's interest was represented by a certificate. The original capital of the copartnership was apparently $35,000. Of this amount the testator paid $3,000, and therefore held three shares of $1,000 each represented by a certificate or certificates.
While the bank at Pleasantville was thus operating, R.A. Anthony, the claimant and appellee, and the members of his family, deposited in the bank from time to time moneys in various amounts. Withdrawals were made and interest collected, but a balance of such deposits always remained in the bank. So, at the time of the death *Page 574
of the testator, James D. Gamble, the claimant and his family had deposits in the Pleasantville Bank. After the death of the testator, Gamble, the claimant left his money on deposit in the bank, and as certificates of deposit from time to time matured he renewed them for himself and family in the bank operated by the surviving partners.
Thus the affairs stood at the time the bank closed, on August 12, 1930. The present claim is made by the claimant for the deposits of himself and family. It is for the claim thus arising that the claimant filed his demand against the James A. Gamble estate more than four years after the notice for the appointment of the executors had been posted, in accordance with the order of the clerk, above named.
An avoidance of the liability by the executors is based upon sections 11970 and 11972 of the 1931 Code. These sections provide respectively:
"11970. Other demands [than administration expenses, funeral expenses, allowance for the widow, etc.] against the estate shall be payable in the following order: * * *
"3. Claims filed within six months after the first publication or posting of the notice given by the executors or administrators of their appointment.
"4. All other debts."
"11972. All claims of the fourth of the above classes not filed and allowed, or if filed and notice thereof, as hereinbefore provided, is not served within twelve months from the giving of the notice aforesaid, will be barred * * * unless peculiar circumstances entitle the claimant to equitable relief."
[1] To avoid the force of this special statute of limitations, the claimant contends, as before explained, that the notice of the executors' appointment was not spread on the probate docket, and therefore is void and of no effect. If the notice was legal, and there are no peculiar circumstances entitling the claimant to equitable relief, his claim is barred by the special statute of limitations, and he cannot now recover thereon. Chicago
Northwestern Railway Co. v. Alonzo Moss, Adm'r, 210 Iowa 491,231 N.W. 344; Simpson v. Burnham, Adm'x, 209 Iowa 1108, 229 N.W. 679; Doyle v. Jennings, Adm'x, 210 Iowa 853, 229 N.W. 853.
There is for consideration here, then, the question whether the *Page 575
notice given by the executors was based upon a legal and valid order therefor. According to the pleadings of the claimant, theinvalidity of the notice, if any, rests upon the fact that the order of the clerk before mentioned was not spread at length upon the probate docket by the clerk, but rather that official merely made a mere abstract or notation thereof on such docket. It is conclusively proven, and in fact admitted by the claimant, that the order of the clerk directing the notice to be given by the executors was fully indorsed on the letters testamentary at the time of their issuance. The statute does not fix the notice to be given by the executors or administrators of an estate. Consequently it is essential that the court, or clerk of the court, in the proper jurisdiction direct what notice the executors should give of their appointment. This direction of the court, or clerk, must be indorsed on the letters when issued. Without a compliance with the statute in that regard, there is in law no notice. McConaughy v. Wilsey, 115 Iowa 589, 88 N.W. 1101; Mosher v. Goodale, 129 Iowa 719, 106 N.W. 195; Craig v. Craig's Estate, 167 Iowa 340, 149 N.W. 454; In re Estate of Camp,188 Iowa 734, 176 N.W. 795; Spicer v. Administrator of the Spicer Estate, 201 Iowa 99, 202 N.W. 604.
Section 3304 of the 1897 Code provided that:
"The executors or administrators first appointed and qualified for the settlement of the estate shall, within ten days after the receipt of their letters, publish such notice of their appointment as the court or clerk may direct, which direction shall be indorsed on the letters when issued." (Italics are ours.)
Under the Code of 1897, then, there was no requirement that the direction of the court, or the clerk, be entered on the probate docket. In Mosher v. Goodale, 129 Iowa 719, 106 N.W. 195, supra, we held that under the Code of 1897 it was necessary for the clerk only to indorse his order on the letters when issued. Because of that statute, this court declared that it was not necessary for such direction to be entered upon the court records. Later the law, as it appeared in the 1897 Code, was amended so now section 11890 of the 1931 Code provides:
"The executors or administrators first appointed and qualified for the settlement of the estate shall, within ten days after the receipt of their letters, publish such notice of their appointment as the court *Page 576
or clerk may direct, which direction shall be indorsed on the letters when issued and entered of record in the probate docket."
(Italics are ours.)
This amended section of the statute was in effect when the clerk made the order for posting notice in the manner and way above explained.
Basing his argument on the italicized portion of the last-named section, the claimant now insists that before the notice of the administrator can be valid, the direction of the court or clerk must be, not only indorsed on the letters when issued, but in addition thereto spread upon the probate docket.
Manifestly a careful consideration of the subject will reveal that the claimant is mistaken in this regard. According to chapter 504 of the 1931 Code, the clerk of the district court is required to keep at least three books relating to the probating of estates. Section 11841 provides for a probate docket, while 11842 authorizes a probate record, and section 11843 makes necessary a bond record. The previous Codes made similar provisions for these records. There is set forth in section 11841 the matters which shall be shown on the probate docket. Full and complete journal entries of all orders and proceedings had in probate matters shall be kept in the probate record, according to section 11842 of the 1931 Code. Moreover, under said section 11842, the permanent record book shall contain, where real estate is sold or mortgaged under order of court, a complete record of such sale or mortgage. All bonds given by executors, administrators, and guardians shall be recorded in the bond record in compliance with section 11843, above named.
Throughout the history of courts, distinctions have been made between permanent records and dockets. That distinction is carried forward in the Iowa Code under its probate practice, as evidenced by the above and foregoing sections to which reference has just been made. A permanent record of a judgment or order is spread upon the record of the court contemplated therefor. On the other hand, a notation or abstract of the judgment is placed upon the court docket. It has been said that a judgment is not the conclusion in the mind of the judge when he is ready to decide the case (Kennedy v. Citizens National Bank, 119 Iowa 123,93 N.W. 71), nor is such judgment the announcement of the court's conclusion (Kennedy v. Citizens National Bank, 119 Iowa 123,93 N.W. 71), supra. *Page 577
Again the judgment is not the memorandum entered in the court's calendar, nor the abstract "entered" in the judgment docket (Kennedy v. Citizens National Bank, 119 Iowa 123, 93 N.W. 71), supra, but rather the judgment is a permanent record recorded in, and spread upon, not the docket, but the books intended therefor. Kennedy v. Citizens National Bank, 119 Iowa 123, 93 N.W. 71, supra; Martin v. Martin, 125 Iowa 73, 99 N.W. 719; State of Iowa ex rel. James Brown v. Beaton, 190 Iowa 216, 178 N.W. 1, 180 N.W. 166; Brooks, Executor, v. Owen, 200 Iowa 1151, 202 N.W. 505; Cooley v. Ayres, 180 Iowa 740, 163 N.W. 625; Thompson v. Great Western Accident Association, 136 Iowa 557, 114 N.W. 31; Kennedy v. Citizens National Bank, 119 Iowa 123, 93 N.W. 71, supra; Case v. Plato, 54 Iowa 64, 6 N.W. 128.
Contrary to the foregoing, a docket contains, not the complete record, but merely an abstract or notation thereof. See cases last above cited and Case v. Plato, 54 Iowa 64, 6 N.W. 128, supra; 19 Corpus Juris 381. Obviously, then, the legislature intended, under the amendment above named, to continue the indorsement on the letters as the official order, and the entry on the probate docket was to be the same as entries are generally contemplated on dockets, as distinguished from the spread of the order or judgment on the permanent record. By so providing, the legislature has inaugurated a scheme whereby one interested may know, by looking at the docket, whether the clerk or court has directed a notice to be given by the administrators or executors. Should the docket indicate such direction, the one seeking information may then proceed to investigate the probate files in the clerk's office where he may find the order of the court, or clerk, indorsed on the letters testamentary. Assuming that the letters testamentary may be out of the clerk's office in the possession of the executor or administrator, the one seeking information may, through the clerk, obtain possession thereof for legitimate purposes. That this procedure is contemplated is evidenced by the history of probate proceedings in this state.
Whether the entry on the probate docket in the case at bar was as full as it should have been becomes immaterial because the legislative authority for posting the notice of their appointment was the direction indorsed on the letters testamentary, at the time of their issuance. See Carr v. Bosworth Sons, 72 Iowa 530,34 N.W. 317; Brown v. Barngrover, 82 Iowa 204, 47 N.W. 1082. Undoubtedly the legislature had in mind the distinction between permanent records *Page 578
and probate dockets when it adopted the amendment in question appearing in the italics above made. The probate docket is generally not of such form or make-up as to permit the spreading of permanent orders or judgments thereon. Apparently the legislature desired an abstract or notation on the probate docket. Accordingly the probate docket is prepared for such abstract or notation of the order.
Without doubt, if the legislature had intended that the executors should not have authority to publish the notice until the same was spread upon the court records, it would have named the permanent record rather than the probate docket as the place for such entry. Lawyers know that the clerks of the district courts in Iowa frequently make abstracts or notations of such orders for publication on the probate dockets rather than a complete record of the order in question thereon. Therefore, if this court were to hold that the order should be spread in full upon the docket, contrary to that practice, then many estates which have been probated would be reopened. Under all the circumstances, it is apparent that the legislature advisedly required the order entered upon the docket rather than upon the permanent record. In the case at bar the clerk, as before explained, indorsed his order properly upon the letters testamentary, and then made an abstract or notation thereof on the probate docket, as contemplated by the legislature.
Of course, the executors in the case at bar, as generally, have the burden of proving that they gave the proper notice to start the running of the special statute of limitations now under consideration. Spicer v. Administrator of the Estate of Spicer,201 Iowa 99, 202 N.W. 604, supra; Bates v. Thomas, Adm'r,188 Iowa 734, 176 N.W. 795; Craig v. Estate of Craig, 167 Iowa 340,149 N.W. 454.
But under the conclusion above reached, it is apparent that such notice was properly given. Hence, the claimant cannot recover, unless he has shown peculiar circumstances entitling him to equitable relief. Whether, because of some section of the statute other than section 11890 of the 1931 Code, not discussed in this opinion, the order for publication should be recorded in the book on which permanent probate records are spread, we do not now decide or suggest, because the question was not raised in the issues before the district court.
[2] II. Peculiar circumstances are relied upon by the claimant to toll the special statute of limitations above discussed. *Page 579
Unquestionably the statute allowing equitable relief, when special circumstances have been shown, is to be given a liberal construction in order to effectuate justice. Chicago
Northwestern Railway Co. v. Alonzo Moss, Adm'r, 210 Iowa 491,231 N.W. 344, supra; Simpson v. Burnham, Adm'x, 209 Iowa 1108,229 N.W. 679, supra.
[3] In cases of this kind, important consideration will be given to the fact that the estate is solvent and unsettled, because then there can be no prejudice to other creditors. The importance, therefore, of the solvent and unsettled condition of the estate is not to be minimized. Chicago Northwestern Railway Co. v. Alonzo Moss, Adm'r, 210 Iowa 491, 231 N.W. 344, supra.
It appears from the record that the estate of James D. Gamble in the case at bar is solvent and the administration thereof has not been completed. When considering the fact of solvency, however, it must be remembered that this status of the estate alone is not a peculiar circumstance authorizing equitable relief. Chicago Northwestern Railway Co. v. Alonzo Moss, Adm'r,210 Iowa 491, 231 N.W. 344, supra; Simpson v. Burnham, Adm'x,209 Iowa 1108, 229 N.W. 679, supra; Doyle v. Jennings, Adm'x,210 Iowa 853, 229 N.W. 853, supra. So the peculiar circumstances required by the statute must exist "independent of the fact that the estate is solvent and unsettled." Chicago Northwestern Railway Co. v. Alonzo Moss, Adm'r, 210 Iowa 491, 495,231 N.W. 344, 346, supra. With that thought in mind, it is now important to consider whether the claimant in the case at bar has presented facts and circumstances entitling him to the relief asked.
According to his argument, the claimant relies for such peculiar circumstances upon the following facts: James D. Gamble, by his will bequeathed one share of the aforesaid capital stock of the partnership bank to each of the following beneficiaries: Ira L. Gamble, John E.D. Gamble, and Myrtle Gamble Wagner. Shortly after the testator's death, an attorney for the executors, together with Mr. Wagner, made an investigation of the partnership affairs. After such investigation, the attorney advised his clients not to accept the shares because, in his opinion, the bank at the time was insolvent. As a result of this advice, the attorney, acting for his clients, returned to the bank the three certificates of stock which previously had been mailed by the bank to his clients. Then an effort was made by the surviving partners to induce the estate to advance a 500 per cent *Page 580
assessment to restore the solvency of the bank; whereupon the executors refused to make the contribution.
Apparently the executors did, however, execute a written stipulation providing that after a year, and within twenty months, the surviving partners might file a contingent claim with the estate, not to exceed $15,000. Such stipulation never was filed of record, and apparently was unknown to the depositors in the bank. So, it is now contended by the claimant that the stipulation was entered into for the purpose of permitting the statute of limitations to run before depositors would become excited because of the insolvency of the bank, and therefore file claims against the estate. Furthermore, it is said by the claimant that Mr. Wagner, one of the executors, consented that the interest of Mr. Dyer in the bank should be purchased because the said owner was threatening to close the bank. Mr. Wagner also, it is said, arranged with Mr. Homer Miller, of the Iowa National Bank, for assistance in making a loan to the Pleasantville Bank. There is nothing, however, in the record to indicate that the claimant was in any way deceived by these transactions. The claimant knew nothing, so far as the record shows, about the arrangement with the surviving partners to file claims after a year, but within twenty months. This arrangement was no more for the benefit of the estate than it was for the surviving partners. Those surviving partners could have been sued after the year had passed, even though the estate could not. Said arrangement between the executors and the claimants was evidently for the purpose of permitting the bank to work out its salvation, with the hope that depositors thereby would be protected.
None of the transactions above set forth in any way affected the attitude of the claimant in reference to filing his claim. Not knowing of the matters of which he now complains, he could not, of course, have been influenced thereby. R.A. Anthony, the claimant, could have filed his claim against the estate within a year, had he so desired. It was not the duty of the executors to broadcast rumors about the bank, and thereby cause a run upon it, but rather it was natural for them to allow the bank an opportunity to solve its financial problems, if it could. The claimant's failure to thus file his demands against the estate within the time required by law was not induced by fraud, misrepresentations, or promises of any kind. Such fraud, misrepresentations, and promises, if any existed, must *Page 581
be proven by the claimant, and he has failed to do so. Fraud will not be presumed.
Under the circumstances, the only reason that the claimant did not file his claim within the statutory period was because he desired to accept the bank as a creditor. So far as the record shows, the surviving partners believed the bank might work out its difficulties and pay its creditors. No one prevented the claimant from filing his claim against the estate, as by law required. Consequently his failure so to do amounts to negligence. Chicago Northwestern Railway Co. v. Alonzo Moss, Adm'r, 210 Iowa 491, 231 N.W. 344, supra; Simpson v. Burnham, Adm'x, 209 Iowa 1108, 229 N.W. 679, supra. James D. Gamble's death dissolved the partnership. Williams v. Schee, 214 Iowa 1181,243 N.W. 529. There is no provision in the will authorizing the continuance of the partnership, and apparently the contract of partnership did not authorize the continuation thereof after the death of James D. Gamble. The record does not indicate that the district court authorized the executors to continue the partnership business for the estate, nor does it appear that they attempted to do so. Williams v. Schee, 214 Iowa 1181,243 N.W. 529, supra. Therefore, upon the death of the partner James D. Gamble, it was incumbent upon the claimant to file his claim for such primary liability within the time limited by the foregoing statute, and not having done so, his recovery is barred because his negligence in failing to so file the claim is not a peculiar circumstance justifying equitable relief.
Wherefore, the judgment of the district court must be, and hereby is, reversed. — Reversed.
STEVENS, MITCHELL, ANDERSON, EVANS, ALBERT, DONEGAN, and KINTZINGER, JJ., concur.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3433013/
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Kathrina Homan died testate August 25, 1905. Fred G. Meinert was by her will nominated executor, and on admission of the will to probate, October 11, 1905, was appointed and qualified as executor. Letters of administration were issued to him. He published notice to creditors November 5, 1905, and filed his final report February 3, 1910. The record recites a stipulation:
"That decedent served notice of the time and place fixed by the court upon the devisees named in the will of Kathrina Homan, as ordered, and that, on the 8th day of February, 1910, the court ordered and adjudged the estate of Kathrina Homan settled and closed, and discharged the decedent, as executor, *Page 357
from further duty, and released his bond, and the estate was closed."
By the will, bequests were made to five stepchildren. The record does not show the character of the estate, whether real or personal or both, except that a power of sale, division, and distribution contained in the will would give rise to the inference of the existence of real estate. By the law in force at the time of Mrs. Homan's death (Chapter 28, Laws of the Twenty-sixth General Assembly), bequests to stepchildren were not exempt from collateral inheritance tax. This statute was so amended as to exempt them by Chapter 54, Acts of the Thirty-first General Assembly (1906). The amendment bore no publication clause, and took effect July 4, 1906. The one year for filing claims and closing the estate did not expire until November, 1906, and, as noted, the estate was not closed until February, 1910. Meantime, the Code Supplement, 1907, was published. By its provisions (Section 1467), bequests to stepchildren were not subject to collateral inheritance tax. We make reference to this as a possible explanation of the error or neglect of the court, the executor, and the administrative officers of the state now to be mentioned. It is stipulated that neither the state nor the state treasurer filed any claim for collateral inheritance tax against the estate of Kathrina Homan, and that the collateral inheritance tax has never been paid. No claim upon Fred G. Meinert for the tax was ever made during his lifetime. Fred G. Meinert died March 7, 1925. His will was admitted to probate April 21, 1925. The present claim was filed April 12, 1926. No charge of fraud against Meinert in the settlement of the estate or in procuring his discharge is made.
By Section 1, Chapter 28, Acts of the Twenty-sixth General Assembly:
"All property * * * which shall pass by will * * * other than to or for the use of the father * * * shall be subject to a tax of five per centum of its value, * * * and all administrators, executors, and trustees, * * * shall be respectively liable for all such taxes to be paid by them respectively, except as herein otherwise provided, with lawful interest as hereinafter set forth, until the same shall have been paid. The tax aforesaid shall be and remain a lien on such estate from the death of the decedent until paid." *Page 358
By Section 8:
"Every executor, administrator, or trustee having in charge or trust any property subject to said tax, and which is made payable by him, shall deduct the tax therefrom or shall collect the tax thereon from the legatee or person entitled to said property, and he shall not deliver any specific legacy or property subject to said tax to any person until he has collected the tax thereon."
The tax is not a tax (though it is a lien) on the property itself, or upon the estate, but upon the succession or right to take by succession. Wieting v. Morrow, 151 Iowa 590; In re Estateof Annis, 195 Iowa 493, 496; In re Estate of Thompson, 196 Iowa 721. The tax is not upon the executor, or upon his property or upon his right. The tax is not his. His is the duty of deducting or collecting. If he is unable to collect, he is not personally liable. In re Application of Meyer, 209 N.Y. 386 (103 N.E. 713). The personal liability imposed upon the executor therefor is for breach of duty, and the amount of the tax, with interest, is the compensation or indemnity fixed by the statute for such breach. That is, it is the damages measured and fixed by the statute. 2 Words Phrases 1812; 1 Idem (2d Series) 1192. The tax has not been paid. It remains a lien upon the Homan estate. The state is here, therefore, as a suitor, to recover the statutory measure of damages from the executor for breach of duty.
The state can operate only through its three departments of government. By Chapter 28, Acts of the Twenty-sixth General Assembly, the court, under the circumstances laid down in Section 4, is required, upon its own motion, to cause the estate to be appraised, and by Section 6, upon its own motion or on the application of the treasurer of state, to fix compensation of executors or trustees. Sections 14 and 15 read as follows:
"Section 14. No final settlement of the account of any executor, administrator, or trustee shall be accepted or allowed unless it shall show, and the court shall find, that all taxes imposed by the provisions of this act upon any property or interest therein belonging to the estate to be paid by such executors, administrators, or trustees, and to be settled by said account, shall have been paid, and the receipt of the treasurer of state for such tax shall be the proper voucher for such payment."
"Section 15. The district court having either principal or *Page 359
ancillary jurisdiction of the settlement of the estate of the decedent shall have jurisdiction to hear and determine all questions in relation to said tax that may arise affecting any devise, legacy, or inheritance, or any grant or gift under this act, subject to appeal as in other cases, and the treasurer of state shall in his name of office represent the interests of the state in any such proceeding."
Chapter 37, Acts of the Twenty-seventh General Assembly (1898), makes it the duty of the county attorney to report to the treasurer of state the death of all persons whose estates are liable to the tax. Though the ultimate source of an executor's appointment is in the will, the will must be probated, and the ultimate appointment of the executor made by the court.
"The executor or administrator is a mere officer of the law."Hatheway v. Weeks, 34 Mich. 237, 243.
Administration of decedents' estates is conducted under the authority and supervision of the court.
"The person so appointed is under the control and power of the court * * *. The court having jurisdiction of the estate may do all things necessary for its proper administration and settlement, and, to this end, may appoint such administrators as are authorized by law and necessary to the discharge of its probate powers." Crossan v. McCrary, 37 Iowa 684, 686.
The executor or administrator is an officer of the court.Daviess County Bank Tr. Co. v. Wright, 129 Ky. 21
(110 S.W. 361, 17 L.R.A. [N.S.] 1122); Shewell v. Keen, 2 Whart. (Pa.) 332 (30 Am. Dec. 266); Fidelity Cas. Co. v. Freeman, 48 C.C.A. 692 (109 Fed. 847, 851); Rothschild v. Hasbrouck, 65 Fed. 283, 285. The department of government through which the state acts in the collection of collateral inheritance taxes, as appears from Sections 14 and 15, above quoted, is, in large part, the judiciary. The duty is imposed upon the court to hear and determine all questions in relation to the tax, subject to appeal, and upon the treasurer of state to represent the state's interests. By the express provision of the law, no final settlement of the executor's account shall be allowed "unless it shall show, and the court shall find, that all taxes imposed by the provisions of this act * * * and to be settled by said account, shall have been paid." The state, therefore, reposed in the court the duty of determining whether any tax was due, and of denying the account *Page 360
and the executor's discharge until it had so found. We cannot presume, nor, for the reasons that will be later adverted to, do we think the state ought to be heard to contend, that the court, the department of its government to which it intrusted the determination of its right to the tax and the securing of the payment thereof, did not perform its duty. The allowance of the executor's account and his discharge, therefore, imply that the court found that the bequests to the stepchildren were not subject to collateral inheritance tax. It is true that the tax accrued at the date of Mrs. Homan's death, August 25, 1905. 37 Cyc. 1574. The law in force at that time imposed a tax upon bequests to stepchildren. The repeal of the law imposing such tax was not made retroactive, and would not operate to remit taxes accrued. 36 Cyc. 1225; 37 Cyc. 1558; State ex rel. Pierce v.Slusher, 119 Or. 141 (248 P. 358). See, also, State v.O'Connell, 170 Minn. 76 (211 N.W. 945). At the time the repeal took effect, the executor was not in default in the performance of his duties. His executrix argues that the statute as to him was penal, but we need not pause to consider the effect of the repeal upon the duty of the executor to collect the tax and his liability to the state for damages for not collecting it. If the estate remained liable for the tax, or if the executor still rested under the duty of collecting it and of responding to the state for not collecting it, the case is merely one of an erroneous determination by the court in allowing his account and decreeing his discharge, remediable only on application to open the account and appeal. By Section 3399, Code of 1897 (Section 12051, Code of 1924), "accounts settled in the absence of any person adversely interested, and without notice to him, may be opened within three months on his application;" and by Section 3400, Code of 1897 (Section 12052, Code of 1924), "upon final settlement, an order shall be entered discharging him from further duties and responsibilities." The executor gave the notice of his final report which the statute required. No other was necessary. VanAken v. Clark, 82 Iowa 256. The state in fact was represented, because it was the duty of the court itself to determine whether a tax was due, and if so, to require its payment. The facts were before it. The executor was the officer of the court, entitled to rely upon, and fully protected by, the directions of the court. 23 Corpus Juris 1174; In re Estate ofSpoo, 191 Iowa 1134; Cowie v. Strohmeyer, *Page 361 150 Wis. 401 (136 N.W. 956). The state has not applied to have the account opened. The account after three months could be reopened on application, only upon a showing of fraud or mistake such as would justify the setting aside of judgments; and the fraud or mistake would have to be something extrinsic or collateral to the accounting, and not a fraud or mistake in the accounting itself. Bradbury v. Wells, 138 Iowa 673; Cowins v.Tool, 36 Iowa 82; Kows v. Mowery, 57 Iowa 20; Patterson v. Bell,25 Iowa 149. The executor may not be held liable for the mistake of the court not induced by his fraud. Citizens' St. Bank v.Victoria Sanatorium, 179 Iowa 671, 677.
As has been said, the state acts through its departments of government. The state undertakes the administration of the estates of deceased persons through its courts, appoints the executor or administrator, and supervises and instructs him. The state also requires county attorneys to make reports of estates subject to collateral inheritance tax, and requires the treasurer of state to represent it. The court is the department of state that is invested with jurisdiction to determine the question of liability to tax, and that department is required to keep the estate open so long as inheritance taxes are unpaid. The state has a lien on the estate for the tax. The court discharged the executor. The executor releases the funds in his hands which should pay the tax, and distributes or allows them to be distributed in reliance upon the action of the state itself, through its court. The case is apparently one of mere error, in thinking that the bequest to the stepchildren was not subject to the tax. Under the peculiar facts and circumstances of this case, we think the error was occasioned by or was that of the state itself. It is against conscience for the state, under such circumstances, after the long lapse of time and the death of the executor, to demand of the executor's estate the tax or its equivalent in damages. It is said in State v. Executor ofButtles, 3 Ohio St. 309, 319:
"It follows, from these conclusions, that the loan made in this case was wholly unauthorized, and that the state was not, at the time the contract was made, bound by it. Whether she could lawfully make herself a party to it and claim the benefit of its provisions, and whether she has actually done so, are entirely different questions. We agree that she can only do so upon the same terms, and subject to the same restrictions, as a private *Page 362
individual. When she appears as a suitor in her courts, to enforce her rights of property, she comes shorn of her attributes of sovereignty, and as a body politic, capable of contracting, suing, and holding property, is subject to those rules of justice and right which, in her sovereign character, she has prescribed for the government of her people. * * * It would, indeed, be a gross absurdity that the government, through its courts, should aid the subversion of its own policy; assault those principles of virtue and morality it is created to uphold; or itself overthrow the law which it compels others to observe, and which it was made to enforce."
See, further, People v. Canal Board, 55 N.Y. 390; State ex rel.Smyth v. Kennedy, 60 Neb. 300 (83 N.W. 87, 88); State ex rel.Hord v. Board of Com., 101 Ind. 69. The doctrine of resadjudicata is applicable to the state. State ex rel. Smyth v.Kennedy, supra.
The Supreme Judicial Court of Massachusetts in Attorney Generalv. Rafferty, 209 Mass. 321 (95 N.E. 747), held that an executrix distributing in good faith property subject to inheritance taxes, without making any reference to the tax, is not protected by the decree of distribution. The facts do not appear in the report of the case, nor are the statutes of the state set out. The court bases its decision on Attorney General v. Stone, 209 Mass. 186
(95 N.E. 395), which in turn cites In re Estate of Lander, 6 Cal. App. 744. The opinion in the latter case was rendered in the probate proceedings. That in the Stone case was rendered in a proceeding against one of the distributees, to enforce payment of the tax, in which he relied upon the action of the probate court in settling the administration accounts. If the proceedings before us were against the legatees, a different question would be presented. It may be surmised that in the Rafferty case the defendant was not only an administrator or executor, but a distributee. However this may be, we cannot accept these decisions as authority in the case now under consideration.
In Montgomery v. Gilbertson, 134 Iowa 291, the pivotal question was said to be, Was the estate so far unsettled that the state treasurer had authority to call for the inheritance tax? It was held that:
"The claimed settlement and distribution made by the executors within a few days after their appointment did not deprive *Page 363
the court of jurisdiction over the funds, nor relieve the executors from liability to creditors or others interested in the estate. * * * The probate court had full power over the estate as soon as the will was probated, if not before, and the actions of the executors were subject to its approval and control until their final discharge. No matter what the provisions of the will, the estate was in court for settlement and distribution, and the executors gained their power and authority from the law, and not alone from the provisions of the will. * * * the state was, in a sense, a creditor, and had the right to insist that the estate be settled according to law. In contemplation of law, it was unsettled when the inheritance tax law became enforcible, and this is the end of the case."
In the case before us, the estate was settled and the executor discharged by the act of the state itself, by one of its departments, through which alone the state may act. The case is not one merely of oversight of a state official, nor one involving merely the statute of limitations or laches, by which the state is ordinarily not bound.
The judgment is — Reversed.
EVANS, C.J., and De GRAFF, ALBERT, and KINDIG, JJ., concur.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/7247162/
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Janet Bond Arterton, U.S.D.J.
*390Plaintiff Gorss Motels, Inc., suing individually and as the representative of a class of similarly situated persons, alleges that Defendants AT & T Mobility LLC and AT & T Mobility National Accounts LLC (together "AT & T" or "Defendant") sent unsolicited facsimiles ("faxes") to Gorss Motels and other similarly situated plaintiffs in violation of the Telephone Consumer Protection Act ("TCPA"), as amended by the Junk Fax Prevention Act ("JFPA"). Defendant moves [Doc. # 40] to dismiss the Amended Complaint [Doc. # 39]. For the reasons articulated below, Defendant's Motion is denied.
I. Facts Alleged in Plaintiff's Amended Complaint
Defendant sent fax advertisements to Plaintiff and a class of other persons, "including, but not limited to," an unsolicited advertisement sent "[o]n or about January 13, 2014." (Am. Compl. ¶ 11; see Ex. A (the Fax) to Am. Compl. [Doc. # 39-1].) That fax states, "Learn about AT & T's new Mobile Share Value Plan!" and "For a limited time, switch from T-Mobile and receive up to $450 when you trade in your current smartphone!" (See Ex. A to Am. Compl.) It further states, "All products and services are manufactured and/or provided by AT & T and not Wyndham Worldwide Corporation ("Wyndham") or its affiliates," and "Neither [Wyndham] nor its affiliates are responsible for the accuracy or completeness of any statements made in this advertisement, the content of this advertisement (including the text, representations and illustrations) or any material on a website to which the advertisement provides a link or a reference." (Id. )
Defendant "did not obtain Plaintiff's 'prior express invitation or permission' before sending Exhibit A." (Am. Compl. ¶ 19). The fax was sent "on behalf of" AT & T "pursuant to an agreement with Wyndham Worldwide Corporation or one of its affiliates." (Id. ¶ 15). The "goods or services" advertised in Exhibit A are AT & T's, and AT & T "receive[s] some or all of the revenues" from the sale of those goods or services. (Id. ¶¶ 16-17).
In fine print at the bottom of the page, the fax says, "To opt out from future faxes, email strategic.sourcing@wyn.com or call this tollfree number: (877) 764-4212" (Ex. A to Am. Compl.), which Plaintiff alleges is non-compliant with 47 C.F.R. § 64.1200(a)(4) because it is not "clear and conspicuous; ... does not state that a sender's failure to comply within 30 days with an opt-out request that complies with the regulations is unlawful" and fails to "contain a fax number to which the recipient can send an opt-out request." (Am. Compl. ¶ 22.)1
Defendant's unsolicited advertisements caused "concrete injury" to Plaintiff because (1) they: "used the Plaintiffs and the other class members' telephone lines and fax machine[s]," (2) "caused Plaintiff and the other recipients to lose paper and toner consumed in the printing of the Defendants' faxes," (3) "cost the Plaintiff and the other class members time" that "otherwise would have been spent on the Plaintiff's and the other class members' business activities," and (4) "unlawfully interrupted the Plaintiff's and other class members' privacy interests in being left alone." (Id. ¶ 41).
*391II. Discussion2
Plaintiff asserts a single cause of action claiming that AT & T sent unsolicited fax advertisements to Plaintiff and a class of other persons. As part of that claim, it argues that even if AT & T claims to have sent its faxes pursuant to an EBR or with the recipients' "prior express invitation or permission," the failure of Defendant to comply with the opt-out notice requirements set forth in 47 C.F.R. § 64.1200(a)(4)(iii) & (iv) constitutes the transmission of an unsolicited advertisement. Defendant argues that Plaintiff's claim must be dismissed because it fails to sufficiently allege Plaintiff never gave permission to receive the fax. Defendant further contends that because the faxes were actually solicited, no opt-out notice is required and that, to the extent Plaintiff relies only upon the insufficient opt-out notice to support its claim, it has not alleged a concrete and particularized injury and therefore lacks standing.
A. Plaintiff Alleged the Fax was Unsolicited Under the TCPA
The Junk Fax Provisions of the TCPA make it unlawful for "any person within the United States, or any person outside the United States if the recipient is within the United States ... to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement[.]" 47 U.S.C. § 227(b)(1)(c) (emphasis added). The TCPA defines unsolicited advertisement to mean "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise ." 47 U.S.C. § 227(a)(5) (emphasis added). Thus, in order for Plaintiff to make out a valid TCPA claim, the fax at issue must have been sent without its prior express permission, i.e. consent. See e.g. Cochran v. Massey , No. 3:12-CV-765 DRH DGW, 2014 WL 335288, at *2 (S.D. Ill. Jan. 30, 2014) ("The question of permission or consent is ... dispositive ... under the TCPA.").
Defendant argues that Plaintiff failed to allege that it had not given permission to receive the fax from the physical sender, Wyndham, and therefore that it cannot state a claim under the TCPA.3 Put otherwise, Defendant contends there can be no claim against a company whose products are advertised in a fax if the *392plaintiff separately provided permission to the entity that actually sent the fax.
Plaintiff claims it need not allege it never gave Wyndham permission, because the "sender" as defined in 47 C.F.R. § 64.1200(f)(10) was AT & T. There are two ways in which a person or entity may qualify as a sender. First, the term sender "means the person or entity on whose behalf a facsimile unsolicited advertisement is sent." 47 C.F.R. § 64.1200(f)(10). Here, Plaintiff alleges the fax was sent on behalf of Defendant.4 Second, the fax sender may be defined as the person or entity "whose goods or services are advertised or promoted in the unsolicited advertisement." Id. These regulations and the case law interpreting them make clear that the question is not who physically sent the fax, but which party benefitted from it being sent. See id. ; see also Imhoff Inv., L.L.C. v. Alfoccino, Inc. , 792 F.3d 627, 637 (6th Cir. 2015) ("The pertinent FCC regulations are explicit that the party whose goods or services are advertised-and not the fax broadcaster -is the sender." (emphasis added)); Senior Care Grp., Inc. v. Red Parrot Distribution, Inc. , No. 8:17-CV-760-T-27TGW, 2017 WL 3288288, at *2 (M.D. Fla. Aug. 1, 2017) ("[t]he 2008 Junk Fax Order also explains that the sender does not need to be the individual who actually sent the fax, only that the sender is the benefitting party."); Bee, Denning, Inc. v. Capital All. Grp. , 310 F.R.D. 614, 620 n.2 (S.D. Cal. 2015) ("[A] company can 'send' an unsolicited fax advertisement without directly participating in the physical transmission of such a fax."). In other words, while the physical sender may be a covered "sender" for purposes of the TCPA, the mere fact of having physically sent the fax does not make an entity a statutorily identified "sender."
Defendant presents no authority supporting its claim that as the party that physically transmitted the fax, Wyndham constitutes a "sender" under the regulation.5 Instead, it supports its position with two cases in which the plaintiffs had given permission, in some form, to the sender (as defined under the regulations) of the fax. See CE Design Ltd. v. King Architectural Metals, Inc. , 637 F.3d 721, 725-27 (7th Cir. 2011) ; Travel 100 Grp. Inc. v. Mediterranean Shipping Co. , 383 Ill. App. 3d 149, 321 Ill.Dec. 516, 889 N.E.2d 781 (2008).
In CE Design , the Seventh Circuit overturned the district court's grant of class certification because the defendants could assert a unique defense against the named plaintiff based on the fact that it, unlike other members of the class, had provided its fax number to a "Blue Book" service used to facilitate industry-wide marketing, and that subscribers to this "Blue Book" expected and consented to receive ads by fax . 637 F.3d at 725-27 (emphasis added).
*393Similarly, in Travel 100 Group , the court found that the plaintiff travel agency had given express permission and invitation for advertisements to be sent by third parties by agreeing to the inclusion of its contact information in an international travel agency database, with the understanding that the database would release the information "to any industry supplier that may wish to use" the plaintiff's services. 383 Ill. App. 3d at 158-59, 321 Ill.Dec. 516, 889 N.E.2d 781 (emphasis added).
In each of these cases, the courts found that although the plaintiff had not directly consented to receiving a solicitation via fax from a particular defendant, it had done so by permitting its contact information to be included in certain databases/directories knowing others had access to that information.6 The allegations in the instant case do not indicate that Plaintiff ever intentionally publicized its contact information in any forum inviting solicitation by Defendant, or that it knew in agreeing to receive a fax from Wyndham (even if that assumption could be made at this stage) it would also be subject to advisements from Defendant. Thus, these cases do not provide guidance for the circumstances alleged in this case.
Based on the language of the regulations and subsequent case law, Defendant's argument-that Plaintiff's cause of action must fail because it did not allege it never gave Wyndham permission to send the fax-has no merit. Defendant concedes Plaintiff's Complaint alleges it never gave Defendant permission to send the fax. (Def.'s Mem. Supp. Mot. to Dismiss [Doc. # 40-1] at 5.) Defendant also concedes that it qualifies as a "sender," for its product was advertised in the fax. (Id. ) Therefore, Plaintiff has properly alleged that the fax, whose "sender" was Defendant pursuant to the regulations, was unsolicited. Insofar as Defendant claims that the fax was solicited because of the relationship between Wyndham and Plaintiff, as Judge Bolden recently found, "[t]he issue of whether the faxes were solicited ... is better determined at a later stage of this case." Ruling and Order on Defendants' Motion to Dismiss [Doc. # 46] at 6, Gorss Motels, Inc. v. A.V.M. Enterprises, Inc. , No. 3:17-cv-1078 (VAB), 2018 WL 691713 (D. Conn. Feb. 2, 2018).7
B. Plaintiff has Standing to Assert its Claim8
To have standing, a plaintiff must allege actual injury, and a "bare procedural violation [of a statute], divorced from any concrete harm" is insufficient. Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 1549, 194 L.Ed.2d 635 (2016). But, as the Second Circuit has noted, under Spokeo "some violations of statutorily mandated procedures may entail the concrete injury necessary for standing."
*394Strubel v. Comenity Bank , 842 F.3d 181, 189 (2d Cir. 2016). Thus, "where Congress confers a procedural right in order to protect a concrete interest, a violation of the procedure may demonstrate a sufficient 'risk of real harm' to the underlying interest to establish concrete injury without 'need [to] allege any additional harm beyond the one Congress has identified.' " Id. (quoting Spokeo , 136 S.Ct. at 1549 ).
Defendant contends that to the extent Plaintiff's claims derive solely from an alleged failure to comply with the opt-out notice requirements, they should be dismissed for lack of standing. On this theory, Plaintiff has alleged only "purely technical" procedural harms related to the opt-out notice and has not alleged any specific harm suffered as a result of the deficiency. Because the Court has determined that Plaintiff adequately pled the fax was sent without prior express permission, and because this claim is not dependent upon its allegations that the opt-out notice did not comply with the regulations, Plaintiff has standing. Additionally, even if Plaintiff's cause of action were based solely upon a non-compliant opt-out notice, the Complaint's allegations of injury suffered are sufficient to give Plaintiff standing.
Plaintiff alleges Defendant's unsolicited faxes caused loss of toner consumed in the printing of Defendant's fax; use of its telephone lines and fax machine; the waste of its employees' time spent receiving, reviewing, and routing the unauthorized fax; and interference with Plaintiff's privacy interest in being left alone. (Am. Compl. ¶ 41.) Defendant does not dispute that these allegations are sufficient to show concrete injury under Spokeo. See e.g., Van Patten v. Vertical Fitness Grp., LLC , 847 F.3d 1037, 1043 (9th Cir. 2017) ("Congress sought to protect consumers from the unwanted intrusion and nuisance of unsolicited telemarketing phone calls and fax advertisements."); Gorss Motels, Inc. v. Sysco Guest Supply, LLC , No. 3:16-cv-1911-VLB, 2017 WL 3597880, at *5 (D. Conn. Aug. 21, 2017) ("[I]t is clear there exists ample case law supporting the proposition that the TCPA has created a 'legally cognizable interest' in protecting individuals and entities from unwanted faxes, and that the violation of the statute creates a 'real' and 'not abstract' harm.").
However, Defendant improperly focuses on whether Plaintiff alleged it suffered any harm stemming from not being able to opt-out of future faxes, ignoring that failure to comply with the opt-out notice requirements essentially renders a fax unsolicited and therefore carries with it the same injury. See Swetlic Chiropractic & Rehabilitation Center., Inc. v. Foot Levelers, Inc , 235 F.Supp.3d 882, 889 (S.D. Ohio 2017) ("the statute makes no differentiation in the harm caused or the penalty assessed whether a defendant fails to meet the opt-out language required or lacks permission to send the fax. In either case, the fax is an impermissible unsolicited fax advertisement that wastes time and impedes commerce."); Davies v. W.W. Grainger, Inc. , 2016 WL 6833902, at *2 (N.D. Ill. Nov. 21, 2016) (holding that if the op-out notice was not clear and conspicuous, the plaintiff suffered an injury the moment he received the fax and that this injury was the same as the plaintiff would have suffered if the fax had not included any opt-out notice at all).9 Accordingly, the same *395concrete interests Congress sought to protect by prohibiting unsolicited fax advertisements also pertain when the opt-out language is non-compliant, as is alleged here. Plaintiff need only allege this procedural right was violated and not any "additional harm" in order to "demonstrate[ ] a sufficient 'risk of real harm' to the underlying interest." Strubel , 842 F.3d at 189 (quoting Spokeo , 136 S.Ct. at 1549 ).
The question of whether the fax contained a proper opt-out notice, much like whether it was solicited or sent in accordance with an EBR, is a factual dispute that must be addressed on a fuller record at the summary judgment stage. See Ruling and Order on Defendants' Motion to Dismiss [Doc. # 46] at 10, Gorss Motels, Inc. v. A.V.M. Enterprises, Inc. , No. 3:17-cv-1078 (VAB), 2018 WL 691713 (D. Conn. Feb. 2, 2018). At this early stage of the proceedings, Plaintiff has made sufficiently concrete and particularized allegations of injury in its Complaint to support standing. See id.
III. Conclusion
For the foregoing reasons, Defendant's Motion to Dismiss is DENIED.
IT IS SO ORDERED.
Plaintiff clarified at oral argument that the opt-out notice allegations are pled in anticipation of Defendant asserting an "established business relationship" ("EBR") defense or asserting that the fax was otherwise solicited, and not as a separate cause of action.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Although detailed allegations are not required, a claim will be found facially plausible only if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Conclusory allegations are not sufficient. Id. at 678-79, 129 S.Ct. 1937 ; see also Fed. R. Civ. P. 12(b)(6).
Plaintiff contends that because it alleges in the Complaint that the fax was an "unsolicited advertisement" as defined by the TCPA, the reasonable inference is that no person or entity obtained Plaintiff's prior express invitation or permission to send the fax. As Defendant points out, "a plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations and citations omitted). Here, an assertion that the fax was unsolicited, without any context that shows Plaintiff did not give permission to receive the fax, would not be sufficient to state a claim if indeed Plaintiff were required to plead it did not give permission to Wyndham.
Defendant urges that Wyndham was also the sender, as the "person or entity on whose behalf" the fax was sent, but the only product advertised in the fax was AT & T's, and the fax specifically stated that "[a]ll products and services are manufactured and/or provided by AT & T and not Wyndham ... or its affiliates." (Ex. A to Am. Compl.)
In support of its contention that Plaintiff must allege it did not provide permission to receive these types of faxes from Wyndham, Defendant cites Comprehensive Health Care Sys. of Palm Beaches, Inc. v. Vitaminerals VM/Orthopedics, Ltd. , 2017 WL 27263 (N.D. Ohio Jan. 3, 2017). There, the plaintiff alleged that a company that manufactured the product which was advertised in the unsolicited faxes was also a "sender," despite not having any advertisements of its own in the fax. Id. at *5. The court noted that this theory would lead to the absurd result of TCPA liability automatically attaching to any manufacturer or distributor of any product promoted in an improperly sent fax advertisement. Id. Here, Plaintiff is not attempting to hold a manufacturer of a product that was advertised in an unsolicited fax liable under the TCPA, only AT & T, because its own company/product was advertised in its unsolicited fax.
Defendant also cites these same two cases in its Reply as refuting Plaintiff's argument that any consent provided to Wyndham cannot be transferred to AT & T. However, there are no allegations in the Complaint that Plaintiff consented to Wyndham and therefore the question of transferred consent is not within the scope of Defendant's Motion to Dismiss.
Having found that the fax was alleged to have been unsolicited within the meaning of the TCPA, the Court does not address Defendant's argument that under Yaakov v. FCC , 852 F.3d 1078 (D.C. Cir. 2017) opt-out notices cannot be required in solicited faxes.
Plaintiff correctly notes that dismissal for lack of standing falls under 12(b)(1), because it constitutes dismissal for lack of subject matter jurisdiction. Nevertheless, to the extent Plaintiff is correct that this motion should have also been filed under Fed. R. Civ. P. 12(b)(1), the Court converts the motion to one brought under both rules, since the Court is required to address its subject matter jurisdiction when the issue arises, including sua sponte as necessary. Joseph v. Leavitt , 465 F.3d 87, 89 (2d Cir. 2006).
Defendant directs the Court's attention to a single district court ruling in which the court held that under Spokeo the plaintiff had not alleged a concrete and particularized injury arising from an alleged deficiency in an opt-out notice. See St. Louis Heart Ctr. Inc. v. Nomax , 2017 WL 1064669, at *2 (E.D. Mo. Mar. 20, 2017). There, the court reasoned that the opt-out notice conveyed "the means and opportunity to opt-out ... regardless of whether the faxes also meet all of the technical requirements of 47 C.F.R. § 64.1200." Id. However, the court noted that the plaintiff "both invited and did not rebuke" the complained-of faxes. Id. Thus, Nomax is distinguishable from the facts at issue here.
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01-03-2023
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07-25-2022
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https://www.courtlistener.com/api/rest/v3/opinions/3433032/
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We will first relate the underlying factual matters that are set out in plaintiffs' petition. In August, 1934, Mary Jane Purslow Miller died testate. On September 21, 1934, her will bearing date January 9, 1934, was allowed to probate in the Woodbury district court and defendant Genevieve Longnecker, daughter of testatrix, was appointed as executrix of the estate. Plaintiffs set out this will as a part of their petition. *Page 368
The portion of the will that is material to the cause of action plaintiffs seek to allege is in the following words:
"II. I hereby give, devise and bequeath to my daughter, Genevieve Longnecker, all of my property of every character and description, wherever situated, of which I may die seized or possessed, in trust only, to invest and keep the same invested with the power to change and vary the investments from time to time by selling any part and reinvesting the proceeds, and with the additional power to mortgage, or renew the existing mortgage upon, any piece of property belonging to the trust estate, without being under the necessity of applying to a court for authority to sell or mortgage or renew a mortgage, and after paying all taxes, charges and expenses in connection with the trust property, and with the execution of the trust, including such compensation, not exceeding $10,000.00 per annum in the aggregate, as the Court shall from time to time allow for her services and for such additional services as she may deem necessary, and to invest and reinvest the net income and add the same to the trust estate, and she shall so continue to hold, manage and conserve the trust estate until it is finally disposed of as herein provided.
"I have two grandchildren; namely; Larimore Purslow Longnecker and Jana Jeanette Longnecker, son and daughter of said Genevieve Longnecker and her husband L.B. Longnecker. As each of the said grandchildren attains the age of forty years, the trustee shall assign and transfer to him or her an undivided one-fourth of the trust estate. If, and when, the said Genevieve Longnecker shall pay or discharge or cause to be paid or discharged, or in the event the same shall become barred, obligations owing by her to judgment creditors in Los Angeles, County, California, present or future, including the judgment of Albert K. Isham, and the judgment of E. Paul Freier, and judgment creditors, if any, in Woodbury County, Iowa, present or future, she shall for the remainder of her life be entitled to the income from one-half the trust estate, the remainder of said one-half, subject to the foregoing, to become the property of the said grandchildren, share and share alike. Upon the decease of the said Genevieve Longnecker, or in the event she fails to pay or discharge, or cause to be discharged, each and all of the judgments against her, or in the event they *Page 369
do not become barred, then the entire trust property shall go to the said grandchildren, share and share alike, as each attains the age of forty years.
"It is my intention in thus making provision for my daughter, Genevieve Longnecker, and the devise is made to her upon the condition, that no interest shall so vest in her that it shall become liable in any way for the claims of judgment creditors.
"In the event that either of my said grandchildren shall die without issue, the portion of my estate which would otherwise go to the one deceased, shall go to the survivor. If either shall die with issue, his or her share shall go to such issue, share and share alike, but in no event shall it vest free from the trust prior to attaining the age of twenty-one years.
"III. I hereby bequeath to Mary Listman the sum of $100.00 per month, the same to be paid to her monthly out of the trust estate, as long as she lives."
These further matters are alleged in the petition. In November, 1933, plaintiffs recovered a judgment in one of the courts of California against Genevieve Longnecker et al. Bringing an action at law thereon in the Woodbury district court plaintiffs recovered a judgment against the same parties including Genevieve Longnecker on September 29, 1936. The instant suit in equity was brought on August 5, 1938. In addition to what has already been stated the petition in the instant suit contained a description of the real property of which the testatrix died seized. The prayer of the petition was that the interest of Genevieve Longnecker in the real estate so described be ascertained and subjected to the satisfaction of the plaintiffs' Woodbury district court judgment. With respect to Genevieve Longnecker having interests in said real estate, the petition alleged that it was the evident intent of testatrix by the terms of her will to place the legal title and entire beneficial interest in said estate in Genevieve Longnecker. In another paragraph of the petition it is alleged that "Genevieve Longnecker could not by the said instrument lawfully become the trustee and beneficiary at the same time, and by reason of such fact a life estate in half of said properties, if not the fee simple title to the whole thereof, became vested in her immediately on the death of her mother, and subject to the lien of plaintiffs' *Page 370
said judgment." To this petition defendant Genevieve Longnecker individually and as executrix and trustee, as well as others of the defendants, filed a motion to dismiss. From the order sustaining this motion and the resulting judgment rendered against plaintiffs they have appealed.
One of the grounds of the motion was, in substance, that the petition shows that the will created no interest in favor of Genevieve Longnecker which can be reached by plaintiffs as her creditors, and consequently the petition fails to state a cause of action. The question is presented whether it was erroneous to sustain the motion on this ground.
[1] Plaintiffs urge there was such error because the will shows an intention to repose the entire beneficial interest in the estate in defendant Genevieve Longnecker and shows that no enforceable duties were cast upon her as trustee and shows that no trust was created. The intentions of a testator must be ascertained from the terms of the will and the intentions of the testator must prevail. In the matter of doubtful construction circumstances surrounding the execution of the will may be shown to aid in determining what the testator meant by the language he used. Starr v. Newman, 225 Iowa 901, 281 N.W. 830; In re Will of Tinsley, 187 Iowa 23, 174 N.W. 4, 11 A.L.R. 826. But nothing of doubt appears in the will before us concerning the meaning of the language used. From a reading of this will, in the light of these authorities, the necessary conclusion is that the instrument itself indicates no intention to repose the entire beneficial interest in Genevieve, and does in fact cast enforceable duties upon her as trustee, and indicates an intent to establish a trust. This is so obvious that we need not point out in detail the several provisions and directions contained in the will that negative the contention made by plaintiffs as above stated. Concerning this conclusion, that the instrument compels, plaintiffs in their argument have little to say. That on which they do rely, as evincing an intention on part of testatrix to vest the entire beneficial interest in the estate in Genevieve Longnecker, consists of certain matters, extraneous to the will, that are alleged in the petition. The substance of these allegations is that Genevieve Longnecker, assuming to act as trustee, has sold certain of the estate's real property, has mortgaged other portions, and has expended the proceeds so *Page 371
acquired for her own individual purposes at her own discretion; also that she is making no effort to segregate any part of the income from the estate but in various ways is expending and appropriating the same. Plaintiffs have cited no authorities nor does it appear to us there could be any, sustaining the proposition that the conduct of a testamentary trustee is a material evidential matter in the determining of the intentions of the testator as expressed in his will. In the instant case the trustee's conduct would not be a circumstance surrounding the execution of the will. The alleged doings by the trustee transpired after testatrix had departed this life. In these allegations respecting the conduct of the trustee we find nothing that affects the issues before us.
[2] It is further urged by plaintiffs that the court erred in sustaining the above-stated ground of the motion because, say plaintiffs, "by the terms of the will, independent of these extraneous circumstances, no trust was created, and title vested in Genevieve." In support of this proposition plaintiffs cite authorities, but they favor us with little or no statement or argument concerning the application of the cited cases to the facts and record in this case. Seemingly plaintiffs' theory is that there was a merger of the title of Genevieve Longnecker as trustee with the interest she had as a beneficiary, resulting in extinguishment of the trust. In applying this theory plaintiffs reach the conclusion that, as a result of the alleged merger, the title to the entire estate that Genevieve had as trustee merged with Genevieve's equitable interest in the entire estate as beneficiary, whereby the trust was terminated and extinguished and the estate became Genevieve's. But with this we are not in accord. The will did not repose in Genevieve the beneficial interest in the entire estate as plaintiffs assume. The estates were not commensurate with each other. Sagendorph v. Lutz,286 Mich. 103, 281 N.W. 553. Further, in equity the doctrine of merger will not be invoked in cases where there is a reason for keeping the estates separate. Curtis Barker v. Central University, 188 Iowa 300, 176 N.W. 330; Sherlock v. Thompson,167 Iowa 1, 148 N.W. 1035, Ann. Cas. 1917A, 1216. Such a reason appears here — a merging would frustrate almost completely the expressed intentions of testatrix.
Though the arguments of plaintiffs are directed quite entirely *Page 372
to the proposition that through merger the whole and entire estate vested in Genevieve Longnecker, we have given consideration to another possible phase of plaintiffs' petition. And as to that phase we discovered neither in plaintiffs' cited authorities nor elsewhere any pronouncements warranting a holding that the trustee's title to the income must be viewed as having been merged with Genevieve's interest as a beneficiary in one half of the income. It is to be noted that such beneficial interest as was Genevieve's, and the acquisition thereof by her, was subject to and dependent upon a condition imposed by testatrix. The impediments between Genevieve and a realization of the benefaction, that is, the outstanding judgments, still exist. We are of the opinion that the principles laid down in the cases already cited would be contravened were we to hold that equity will apply the doctrine of merger to the facts in this case in such manner as to confer on the beneficiary an enlarged estate unaffected by the condition, and thereby defeat the condition the testatrix definitely imposed. Our conclusions make it unnecessary to discuss whether in the case at bar there was an instance of such uniting of title and interests as to render the doctrine of merger applicable at all.
The district court rightly ruled on the motion. Plaintiffs electing to stand on their pleading, the judgment was properly entered. There appears to be no necessity for discussion of the merits of grounds found in the motion other than the one we have considered. The order and judgment from which plaintiffs have appealed are affirmed. — Affirmed.
HAMILTON, MILLER, HALE, SAGER, BLISS, STIGER, and MITCHELL, JJ., concur.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3433033/
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This proceeding to foreclose a real estate mortgage presents two distinct controversies, generally speaking. The first relates to the existence of the mortgage, and the second involves the pleadings for and against, and evidence to sustain, the appointment of a receiver.
A.N. Finken, the plaintiff and appellee, maintains that he has a valid mortgage executed by the defendants-appellants, N.W. Schram, and his wife, Josephine Schram, covering certain *Page 408
land in Shelby County, and because the mortgagors are delinquent, the appellee urges that he is entitled to the foreclosure thereof, aided by the appointment of a receiver to collect the rents and profits during the year of redemption, extending from March 1, 1930, to March 1, 1931. While, on the other hand, the mortgagors and The Farmers Savings Bank, of Earling, defendants and appellants, all insist that appellee has no mortgage, and therefore is not entitled to a foreclosure. Furthermore the appellants argue that assuming appellee has a mortgage which may be foreclosed, nevertheless he in no event under the pleadings and evidence can have a receiver appointed because the pleadings and evidence do not authorize such relief.
Three mortgages executed by the appellants, N.W. Schram and Josephine Schram, are held by the appellant, The Farmers Savings Bank, of Earling. Two of these mortgages are prior liens on the same real estate covered by appellee's mortgage, and the other mortgage, held by the appellant, The Farmers Savings Bank, of Earling, incumbers certain chattels and crops belonging to the appellants, N.W. Schram and Josephine Schram. So, the appellant, The Farmers Savings Bank, of Earling, insists that its chattel mortgage covers the rents and profits for the period during which appellee desires a receiver. Hence, the appellants aver that the chattel mortgage is superior to any claim a receiver could have on those rents and profits.
After a hearing in the district court, that tribunal entered a judgment and decree declaring: First, that appellee had a good and valid mortgage executed by the appellants, N.W. Schram and Josephine Schram, and accordingly allowed the foreclosure thereof; and, second, that the appellee was entitled to the appointment of a receiver who had a right to the rents and profits from the incumbered land superior to that of the Farmers Savings Bank, of Earling, under the chattel mortgage held by it. Those are the questions involved on this appeal and they will now be considered in the order named.
[1] I. Under that order, the first question for consideration relates to the existence of appellee's mortgage. Did appellee hold a mortgage legally executed by N.W. Schram and Josephine Schram, which was subject to foreclosure? Our answer is in the affirmative. The facts are now material for an understanding of the legal propositions involved. *Page 409
N.W. Schram, on March 1, 1920, executed his promissory note for $4,000, payable to the appellee one year thereafter. Following that transaction, Schram, on July 3, 1922, executed a second note to appellee payable in the sum of $700 March 1, 1923. Both notes bore interest at the rate of eight per cent per annum before and after maturity. Neither note was paid, but some interest and a small portion of the principal were satisfied. On May 27, 1926, the amount due and unpaid on the two notes was approximately $6,048.20. To secure that unpaid balance, grant the Schrams additional time for the payment thereof, and reduce the interest from eight to seven per cent per annum, appellee consented to, and did, receive from N.W. Schram and Josephine Schram the real estate mortgage now under consideration. This mortgage was duly signed, acknowledged, and recorded. Contained in that mortgage is the following condition and provision concerning the debt secured:
"Provided always and these presents are upon this express condition, that if the said N.W. Schram and Josephine Schram (appellants), his wife, heirs, executors, administrators or assigns, shall pay the said A.N. Finken (appellee), his heirs, executors, administrators, or assigns the sum of Sixty Hundred Forty-eight and 20-100 Dollars on the first day of June, 1929, with interest thereon payable semi-annually at the rate of 7 per cent per annum, according to the tenor and effect of the onepromissory note of N.W. Schram and Josephine Schram payable toA.N. Finken or order, and bearing date May 27, 1926, then these presents to be void, otherwise to remain in full force. (The italics are ours)."
A note purporting to be the one mentioned in the mortgage was introduced in evidence, but no signatures appear thereon. It seems that this note was prepared for execution at the time the mortgage was drawn up. W.B. Ryan, cashier of the appellant, The Farmers Savings Bank, of Earling, at appellee's request prepared the note and mortgage for the signatures of N.W. and Josephine Schram. When preparing those documents, Ryan found that the total due under the $4000 and $700 notes, above described equaled the sum named in the mortgage and unsigned note. After preparing the mortgage and unsigned note, Ryan gave them both to Mr. Schram "to take out for himself and wife *Page 410
to sign." About one month thereafter, Ryan went out to the Schram home, which was on a farm. Mrs. Schram was ill. Later the Schrams came to The Farmers Savings Bank, of Earling, where they signed and acknowledged the mortgage, but for some reason they did not sign the note. By way of explanation, Mr. Ryan, the cashier, declares that Mr. Schram reported to him the note had been lost. Accordingly, the cashier then prepared a duplicate note, but it appears that the Schrams did not sign it. Some delay was caused because of Mrs. Schram's illness, and then the matter seems to have been overlooked. Appellee had a box in The Farmers Savings Bank, of Earling, where he kept the mortgage and unsigned note, together with the $4000 and $700 notes, previously described.
Following the execution and recording of the mortgage, the Schrams paid interest on the debt secured and asked for an extension of the obligation. During a conversation with appellee, Schram asked that the mortgage be extended and not foreclosed. At no time did the Schrams deny the indebtedness as set forth in, and secured by, the mortgage. Because of the foregoing facts, appellants now say that the mortgage never became operative for the reason that the note therein named had never been signed. Appellants declare that without the intended signatures on the note, there could be no completed transaction. As the transaction contemplated a note and mortgage, it is said that the mortgage could not become effective without the note.
In answer to appellants' argument in that regard, appellee maintains that the debt existed and that the mortgage was given to secure the same regardless of the note. Such are the contentions of the respective parties. That the debt named in the mortgage existed, is not disputed. Likewise, it is conceded that the $4000 and $700 notes, above named, are largely unpaid, unless they are absorbed in the mortgage indebtedness. There is no doubt that the Schrams asked for an extension of the obligation, and that appellee consented thereto, providing the mortgage was given. To accomplish that result, the cashier was asked to prepare the mortgage and new note, and obtain the Schrams' signatures thereon. He apparently handled the transaction and kept all the papers in appellee's box at the bank. Regardless of the new note, appellants recognized the mortgage and the indebtedness secured thereby for they paid interest thereon and asked *Page 411
that there be no foreclosure, as above stated. Additional time under the mortgage was requested by appellants and refused by appellee, as aforesaid. Not only is the foregoing true, but all the defendants in their answer admitted "the execution and delivery of the note and mortgage."
Manifestly, therefore, the mortgage was given to secure the debt rather than the mere note. A careful reading of the entire instrument settles this fact beyond dispute. If, as we have found, the mortgage was given not merely to secure the note, as such, but rather to protect the debt, as distinguished from the evidence thereof, then, under the facts and circumstances, the mortgage may be a valid contract. Morris v. Linton, 104 N.W. 927 (Nebr.); Lierman v. O'Hara, 140 N.W. 1057 (Wis.); Lee v. Fletcher, 48 N.W. 456 (Minn.). See also Fetes v. O'Laughlin,62 Iowa 532. The Minnesota court, in Lee v. Fletcher (48 N.W. 456), supra, reading on page 457, suggested:
"A note for the amount he (the party sued) owed, or even for a greater sum, would not have added to his indebtedness as such. It would have been evidence of it only. And if it satisfactorily appeared that, when giving the mortgage, it was the purpose of the maker to secure his debt, the non-execution of a note, or the execution of a note for a larger or smaller sum, would not, in the absence of fraud, invalidate the security. The validity of a mortgage does not depend upon the description of the debt, nor upon the form of the indebtedness; it depends rather upon the existence of the debt it was given to secure. It may be valid without any note or bond, although it purports to secure a note or bond, and substantially describes it."
Again, a similar excerpt may be found in Lierman v. O'Hara, (140 N.W. 1057), supra, reading on page 1058:
"From the undisputed facts in the case it is obvious that, although the writing is not an executed promissory note corresponding with the provision of the mortgage, the mortgagor intended to secure his indebtedness to the mortgagee, as stated in the mortgage and the unsigned writing which refers to the existing indebtedness intended to be secured. The written memorandum can properly be treated as evidence of the debt which the mortgage was given to secure. Under the facts and *Page 412
circumstances, the omission of Neitzke to sign this paper did not mislead any person. The conditions in the mortgage and the contents of this writing expressing the terms of payment of this debt correspond with sufficient accuracy to show the indebtedness which the parties sought to cover and secure by the mortgage. The discrepancy may be disregarded as not necessarily fatal to the validity of the mortgage."
Clearly, therefore, under the facts and circumstances revealed, the mortgage was duly delivered and it legally secured the debt therein named. Consequently appellee was entitled to judgment against the Schrams for the amount secured by the mortgage, as well as the foreclosure of the security contract. While there is something said in the pleadings to the effect that appellee agreed not to foreclose at this particular time, in consideration for the delivery to him of certain chattels named in the mortgage given by the Schrams to the Farmers Savings Bank, of Earling, yet the evidence does not sustain the allegation.
Therefore, the judgment and decree of the district court, in allowing the foreclosure, was properly entered. We make no decision or indication here concerning the effect of this particular mortgage under the recording laws, for the reason that this point is not raised or argued.
[2] II. Having recognized the validity of the mortgage and the appellee's right to the foreclosure thereof, the next question presented for consideration relates to the receivership.
Appellants declare that appellee, under the pleadings, is not entitled to a receiver to collect the rents and profits during the year of redemption. Under the terms and conditions of the mortgage, a receiver was authorized for the purposes aforesaid.
Nevertheless, the appellants earnestly argue that the judgment and decree of the district court in so far as it appointed a receiver should be reversed because the defense named in the answer as a resistance thereto was duly proven. This argument on appellants' part is divided into three propositions. These now will be considered in their order.
First: By way of answer, appellants declared that Schram owned the real estate in question long prior to the time that the debt due appellee arose, and occupied the farm as a homestead during all the times material. Furthermore, it is said in the *Page 413
answer that Schram used the proceeds from the land, and the homestead, for the payment of taxes and interest on the incumbrances. This land was heavily mortgaged. There appears to be a first mortgage to Annis Rohling, a second and third to the appellant, The Farmers Savings Bank, of Earling, and a fourth to the appellee.
Continuing their pleading, appellants declare that Schram intended to stay in possession of the land and pay the rents and profits therefrom on the taxes and the interest accruing under the mortgages. It is insisted by appellants that they proved the allegations above named and therefore are entitled to defeat appellee's prayer for a receiver. Whether sufficient or insufficient, appellants say their answer was in no way attacked by motion or demurrer, and therefore appellee consented that the alleged issue be presented to the court. Sufficient proof was offered thereunder and consequently appellants say judgment should be entered accordingly. Obviously, however, appellants are mistaken about the net result of the foregoing pleading. When carefully considered with all the language used by appellants in the entire paragraph concerned, this portion of the answer contains: First, the selection of a homestead; and, second, the fundamental statement that Schrams have not waived their right to possession of the real estate. Under the foreclosure proceedings, of course, they had a right to make statutory selection of a homestead subject to the stipulations in the mortgage so far as possession thereof is concerned. That portion of the answer averring that possession was not waived naturally raised fact and law questions, and the facts and law were against appellants' contention. Without question the mortgage contains a sufficient receivership clause, which amounts to a waiver of possession during the redemption period. A deficiency judgment resulted after applying all the land, including the homestead, on the mortgage indebtedness. The receiver was not appointed until after this deficiency appeared. Hence, the action of the district court in appointing the receiver at that late date recognized Schrams' homestead rights in harmony with our holding in Sheakley v. Mechler, 199 Iowa 1390, reading on pages 1395 and 1396:
"In brief, we hold that a receiver under a mortgage may not take possession of the homestead until sale on execution is *Page 414
had, as it cannot be determined until that time, with that degree of certainty contemplated by the law, that a deficiency exists. The homestead is a solicitude of the law, and this court recognizes the importance of the preservation of the home. The power to mortgage a homestead is qualified by statute, and a judicial sale of the homestead under stipulations in a mortgage is to be enforced for the benefit of the mortgagee as a last resort only."
[3] Second: It is also said that the appellee is not entitled to a receiver under the circumstances because Schram had given a chattel mortgage to the appellant, The Farmers Savings Bank, of Earling, covering the crops for the year 1930. Again, appellants say that the defense thereby pleaded was fully proven and the district court should have recognized the fact by refusing the receivership. A careful study of this portion of the answer, however, reveals that the appellants pleaded only fact questions concerning the priority of the chattel mortgage. During the trial, it was proven that the receivership clause in appellee's mortgage was in fact prior to the chattel mortgage. Such chattel mortgage, under the facts, then, does not defeat the receivership. No crops had been planted at the time the receiver was appointed March 8, 1930, nor were the crops described in the chattel mortgage raised during that year, for Schram, as landowner, did not cultivate the land. Immediately after his appointment, the receiver took possession of the land and the crops were produced by a tenant under him. Thus appellee, the mortgagee, had a superior right to the crops under the receivership, and The Farmers Savings Bank, of Earling, held no valid claim to such crops through the chattel mortgage. This chattel mortgage was executed October 23, 1929, while appellee's real estate mortgage previously came into existence May 27, 1926. So, the real estate mortgage containing the receivership clause was in existence long before the chattel mortgage. Necessarily, then, under the previous holdings of this court, the chattel mortgage did not defeat appellee's right to the crops for the period in question under the real estate mortgage. Louis v. Hansen, 205 Iowa 1216.
[4] Third: An additional argument is made by appellants on the theory that appellee is not entitled to the receivership because his mortgage is inferior to the two aforesaid mortgages *Page 415
held by The Farmers Savings Bank, of Earling. Once more appellants declare that they pleaded a defense which was proven, and therefore judgment should have been for them. Plainly, however, appellants misconstrue the effect of the issues raised by declaring that the two real estate mortgages held by the bank were superior to appellee's right under his mortgage. The appellants raised an issue which was to be determined by the court under the evidence. Appellee admits the superiority of said bank's two mortgages on the real estate, but denies the priority thereof so far as the crops in question are concerned. It is not claimed by appellants that a receivership proceeding was instituted under the bank's mortgage prior to the present proceeding prosecuted by appellee. Many times it has been said that the receivership clause does not become operative until an action is begun for the appointment of a receiver. Even though the bank's mortgages are prior in date, yet appellee, having instituted receivership proceedings first, has a prior right to the rents and profits. Lynch v. Donahoe, 205 Iowa 537. The appellant, Schram, and his wife are insolvent. There is an unsatisfied deficiency judgment remaining after the mortgaged land was sold.
Under the entire record, therefore, appellee was entitled to the appointment of a receiver to collect the rents and profits from the real estate for the year, 1930.
Wherefore, the judgment and decree of the district court should be, and hereby is, affirmed. — Affirmed.
FAVILLE, C.J., and EVANS, MORLING and GRIMM, JJ., concur.
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I. For a number of years prior to June, 1920, there were two papers published at Bloomfield, Davis County, Iowa, known as The Bloomfield Democrat and The Davis County Republican. Owing to the scarcity and high cost of print paper, and the high cost of labor, it was deemed best by the management of these respective papers that they be combined, and issued as one paper. An agreement was made between the publishers, the material part of which was that each publisher and owner should continue to own and edit his own paper, although the paper was to be issued as a joint paper, under the title of The Davis County Republican The Bloomfield Democrat. Each party was to make an inventory of property owned by him, and each was to have a salary of $150 a month. The expenses were to be borne proportionately by the owners, and the profit, if any, was to be divided in certain proportion. This, roughly, is the substance of their agreement.
The two printing plants were moved into a building, and the parties proceeded to carry out their agreement. The subscription lists of the two papers were combined into one list, and persons who had previously subscribed to both papers were given credit as subscribers to the combined paper for a total time equivalent to the unexpired subscription for both papers. The business was carried on under this plan until sometime in September, 1922, when the owners proceeded to issue separate papers, a republican paper and a democratic paper, on different days of the week, both papers using the subscription list which had been formerly used by the combined papers. Each subscriber whose name appeared on the combined list received both the republican and the democratic paper.
The appellant's newspaper was established in September, 1922. *Page 198
The appellee newspapers filed applications with the board of supervisors of Davis County, asking to be selected as official newspapers of the county for 1923. These applications were on file with the county auditor of that county on January 1, 1923.
The board of supervisors met on the 2d day of January. In the forenoon of that day, the new members elected were not sworn in, and the old members transacted the business. Among other things, they acted on the application of the two papers to be selected as official county papers for the year 1923. They were chosen and designated by the board as the official papers for 1923. At noon of that day, the new members of the board were sworn in, and the old members retired. Subsequent thereto, and on the same day, The Messenger filed application to be selected as one of the official papers of said county. The new board seems to have disregarded the action of the old board, and on January 4, 1923, the record shows that they adjourned, to meet on January 15th following, to hear contest as to official county papers. The respective contestants filed their affidavits and showings by that time, and on that date the record of the board meeting shows that the applications of the respective papers were produced by the county auditor, the seals broken in the presence of the board of supervisors, and the contents inspected.
The appellant filed with his affidavit a list of purported bona-fide subscribers to his paper, numbering 745. The Davis County Republican list ostensibly showed 2,368 subscribers, and the Bloomfield Democrat list ostensibly showed 2,387.
The showings filed by each of the appellees consisted of a pasteboard box of cards. On each card were 1. NEWSPAPERS: written the name and address of an alleged official subscriber. Accompanying these boxes of cards newspapers: and inclosed in the box was the affidavit of the sealed publisher, as required by statute, the
envelopes correctness of which affidavit is not in
for question. The boxes containing the cards and the subscription affidavits were sealed, as provided by law. This list. gives rise to the first point relied on for reversal.
The section of the statute governing this matter is Section 441, Supplement to the Code, 1915, and reads as follows: *Page 199
"In case of contest, the applicants shall each deposit with the county auditor, on or before a day named by the board of supervisors, a certified statement, subscribed and sworn to before some competent officer, giving the names of the several post offices, and the number and the names of the bona-fide yearly subscribers receiving their papers through each of said offices living within the county; such statements to be in sealed envelopes, and opened by the county auditor upon direction of the board of supervisors."
It is seriously urged by the appellant herein that this section of the statute has not been complied with by either of the appellees. Each of the cards in said boxes contained the name of a subscriber and his post-office address. The cards were bunched, and labeled on the back with the post-office address and the number of subscribers at each post office in the county. The affidavits accompanying the same sufficiently identified the contents of the boxes, and what was done in this instance was a substantial compliance with the statute. Nothing more could have been accomplished, had these names been copied on a paper and attached to the affidavit. Webster's International Dictionary defines "envelope" as "that which envelops; a wrapper; an inclosing cover, especially the cover or wrapper of a document." We therefore hold that this section of the statute has been substantially complied with.
II. The second point relied on for reversal is that the appellees could not each appropriate to itself, as its own list of subscribers, the entire list of the consolidated papers, and file the same as the list of bona-fide yearly subscribers in the contest.
This is rather a novel question. No authority seems to have been cited by either side, and we have been unable to find any, on diligent search. It might be said in passing, however, that the evidence in the case very clearly shows the 2. NEWSPAPERS: good faith of the appellee papers, both in their official action in issuing a joint publication and also newspapers: in their action in issuing separate papers, as who are notice was published in their paper fully subscribers. explaining the intention in both instances; and after September, 1922, when they issued separate *Page 200
papers, both papers were sent to subscribers shown by the joint list formerly used by both papers.
In Smead v. Stearns, 173 Iowa 174, at page 184, we said:
"`To become a subscriber to a newspaper includes some voluntary act on the part of the subscriber, or something which is, in effect, an assent by him to the use of his name as a subscriber.'"
When the appellees issued separate papers, and notified their subscribers that they would send both papers to each subscriber for the balance of their subscription, and the subscriber made no objection thereto, but continued to receive the papers, it constituted an assent on the part of the subscriber, within the meaning of the foregoing definition. We are of the opinion that the respective owners of the appellee papers had the right to issue separate papers at such a time as they elected so to do, and were each entitled to appropriate the consolidated list of subscribers used by the consolidated papers.
III. Much time and attention have been given by counsel, both by argument and evidence, to attacking the bona-fide use of the subscription list claimed by the respective appellees. It is shown that in each of said lists there were some 3. NEWSPAPERS: persons to whom the paper was sent gratuitously official by appellees: among others, the ministry of the newspapers: town, members of the board of supervisors, some nonwillful county officials, the employees of the printing subscription office, and some others. The trouble with this list. contention on the part of appellant is that in his list we find the same gratuities, to practically the same people. Hence, if the law is to be applied as appellant contends, then none of the applicants herein would be entitled to selection as official paper. However, the statute heretofore cited states, among other provisions, the following:
"And if it appears that any certified statement filed is fraudulent, or contains the name of any person who is not a bona-fide yearly subscriber residing within the county, which was knowingly and willfully placed therein to make it appear to contain the names of a greater number of such subscribers than it in fact contains, the same shall not be considered, and any applicant or paper so filing such fraudulent or untrue statement shall not be made a county official paper." *Page 201
It is to be noted that this penalty applies only in cases where such prohibited name was knowingly and willfully placed therein. We have read the record and the transcript, and we fail to find any evidence showing that either the appellant or the appellees willfully placed said names in the lists filed with the auditor. Neither do we find any ground for holding either of the certified statements to be fraudulent.
It is to be remembered that this is a special proceeding, marked out by the statute, and the finding of the district court has, in this court, the force and effect of the finding of a jury.
It is urged quite strenuously that the showing made by appellees is badged with fraud because of their failure to file or set out the expiration dates of the various subscriptions listed by them. There are two answers to this. 4. NEWSPAPERS: Each appellee frankly states his reasons for not official setting out the expiration dates, and says that, newspapers: if the court desires the expiration list, it fraudulent will be promptly furnished. The statute does not lists: require this, and it is merely a matter of insufficient evidence. However, we have inspected the showing. statement filed by the appellant herein, and find opposite each name listed, the month and day of the month, but find no year specified. We feel that this whole matter is evidentiary only, and in itself, as shown by the record herein, cannot be said to be a badge of fraud.
It is to be noted that, in the trial before the board of supervisors, no oral evidence was introduced by either side. The district court held against appellant's contention in this respect, and we hold that there was no error in so doing.
The appellant relies much on the case of Packard v. Schmidt,110 Iowa 628; but to our minds this case has no application to the one before the court. The Packard case involved two separate papers, joining in an application to be selected as a third official paper, and asked that they be permitted to publish the official news of the county jointly, and receive a minimum amount allowed by law for one newspaper, thus combining their subscription lists for the purpose of securing county printing.
The burden of proof was on appellant to establish that he *Page 202
had a larger number of bona-fide subscribers than either of appellees. This he has failed to do.
It would be useless to set out the large amount of testimony produced in this case. Suffice it to say, we have reviewed it all carefully, and reach the conclusion that the district court did not err in its ruling. — Affirmed.
FAVILLE, C.J., and EVANS and MORLING, JJ., concur.
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The alleged injury was caused to plaintiff on September 15, 1924. At that time, she was engaged in the employment of Dr. Welpton, as office woman and assistant, and had been so engaged for a period of about 16 years, and was earning a salary of $125 per month. The defendant, through one Watson, was negotiating with Dr. Welpton for the sale of an X-ray machine and the installation of the same in Dr. Welpton's office. On the date named, Watson installed in the doctor's office a secondhand X-ray machine, brought from another town. He desired to complete the installation and to make a demonstration on that date. Dr. Welpton was not present. At the request of Watson, the plaintiff submitted to an exposure of herself to the machine, for the purpose of demonstration. The cone was applied to her head, and three pictures thereof were taken in succession, with brief intervals, at one sitting. The focal point was the occipital lobe of the brain. Some days thereafter, the plaintiff began to feel soreness in her head. The pain increased, and the first outward symptom was the loss of her hair from an area four inches square. Other troubles followed in succession. She developed a chronic condition of sick headache, referred to in the record as "ophthalmoplegia migraine." Her right eye became affected. The muscles of accommodation of the pupil ceased to function. The eyelid also was affected. The claim for plaintiff is that this condition was the result of injury to the third cranial nerve, which has its origin at the occipital lobe of the brain. Menopause occurred. She was then 36 years of age; whereas 47 years is the average age of the appearance of menopause. The trial below was completed on November 26, 1927. During the intervening three years, according to the evidence for plaintiff, she has been a constant sufferer, and under constant disability, and without any cessation of the specific injuries herein referred to. The jury awarded her a verdict of $4,500, upon which judgment was entered.
It is claimed by the defendant that no negligence was proven; that the only specification of negligence submitted by the court to the jury was one not pleaded; that no causal relation *Page 898
was shown between the menopause and the X-ray demonstration; that none was shown as between the injury to vision and such demonstration; that such X-ray treatment was not shown to be the cause of the migraine; that the court submitted an improper measure of damage.
This indicates the general character of the issues presented for our consideration.
I. The defendant's first contention is that there was no evidence of negligence. This contention is predicated largely upon the testimony of Watson, who, as a witness, described in detail just what he did, — all of which was 1. NEGLIGENCE: normal, and would necessarily be harmless. It is proximate not disputed that an X-ray machine has a ready cause: capacity for injury. It is requisite that it be causal operated by an expert, and this means relation. intelligence and care. Negligence in its operation carries the potential of grave consequences. The only other person present at the demonstration was Miss Morgan, a graduate technician, who had been employed by Dr. Welpton for the purpose of operating the machine. She testified to various circumstances contradictory to Watson, tending to show that the machine was not under his control, and that it was delivering more current into the person of the plaintiff than as contended by Watson. The four factors which enter into the power delivered into the person of the patient by the operation of the machine are: voltage, current, time, and distance from the focal point. As time is lengthened or distance shortened, the power is accordingly increased. This power was referred to, in the testimony of the expert witnesses, as "dosage." According to the testimony of Miss Morgan, the time of the experiment was longer and the distance from the focal point was much shorter than that indicated by Watson. She testified also to the hot wires, which required an interval of stoppage to cool them off, and which indicated a want of control of the dosage which was being delivered. According to the testimony of Watson, nothing occurred which could have caused a burn to the plaintiff. He estimated the dosage at 580 milliampere seconds. This amount was concededly a normal dosage, and could not result in injury. On the other hand, the testimony from both sides indicated that the loss of hair suffered by the plaintiff was the result of a second-degree X-ray burn, and that it could not have occurred *Page 899
without the application of not less than 1,200 milliampere seconds. This is not a case of res ipsa loquitur; but, if the evidence shows that the plaintiff did suffer an X-ray burn, and that this was her only exposure to an X-ray machine, such circumstance is not only admissible, as tending to prove improper use of the machine, but it is also a very persuasive one.
We think the proof of negligence was quite sufficient to go to the jury.
II. The defendant complains that the district court submitted to the jury, as the only ground of negligence, a ground that was not pleaded. The question thus submitted to the 2. Trial: jury by the court was whether Watson delivered instruc an overdosage of current. The plaintiff had tions: pleaded ten specifications of negligence. They paraphrasing were all reducible to the general proposition assignment that Watson had carelessly delivered an of excessive amount of current. Nos. V and VII were negligence. as follows:
"V. By carelessly permitting a dangerous amount of electric current to pass through the machine and on this plaintiff.
"VII. By carelessly and negligently burning this plaintiff."
Nowhere in her specifications did the plaintiff use the term "overdosage." Such was the term, however, that 3. APPEAL AND was used by substantially all the witnesses. ERROR: Before the instructions were formulated, counsel review: for defendant moved for a withdrawal from the scope and jury of many, and perhaps all, the grounds of extent: negligence alleged in the petition. In the agreed trial presentation of such motion, the following theory: colloquy occurred between the court and effect. defendant's counsel:
"I might say, judge, that I have withdrawn all of those. There is just one ground of negligence I am permitting.
"Judge Guthrie: May the record show that all grounds of negligence are withdrawn, with the exception of that; otherwise I would make my record.
"The Court: Well, the record may show that the only ground of negligence that the court is going to submit is this: that J.H. Watson, in the taking of the radiograph of plaintiff's head, caused her to receive an overdosage of X-ray from said *Page 900
X-ray machine; and that is all I am submitting to the jury.
"Judge Guthrie: With that understanding, the defendant will not proceed to ask the withdrawal, but understands from the statement of the court that they are withdrawn.
"The Court: That is all there is to it. (Plaintiff excepts.)"
Pursuant to such colloquy, the court gave Instruction No. 6, wherein he submitted to the jury the one question of negligence: whether, through want of ordinary care, Watson had "caused her to receive an overdosage of X-ray from said X-ray machine." This represents the court's interpretation of the specifications Nos. 5 and 7, contained in the petition. The fact that he departed from the exact language of the petition, and adopted that of the witnesses, is not at all material. It was not only a proper interpretation; but it was one that had been acquiesced in by counsel for the defendant in the colloquy above set forth. The final statement of counsel in that colloquy amounted to a withdrawal of his further objection, and to a waiver of objection to that particular instruction. In formulating the instruction, the court adopted the same term, "overdosage," that he had used in the colloquy.
III. The defendant complains of the ruling of the court permitting a question to be propounded to the witness Dr. Heagey. The record is as follows:
"Q. Now, Doctor, from your examination and knowledge of her condition, and the fact that there was an X-ray burn in the region of the back of her head, in September, 1924, if that be a fact, could you say whether or not, in your opinion, that burn might, could, or would have any effect upon her present condition?
"Judge Guthrie: That is objected to as incompetent, irrelevant, and immaterial to any issue in this case, and for the further reason that the evidence shows that the doctor did not see this patient until March, 1926; further reason that the witness is not competent to testify.
"The Court: You may answer that, Doctor, assuming, for the purpose of your answer, that she had an X-ray burn in the back of her head. (Defendant excepts.)
"Assuming that she had an X-ray burn, determined by her history of an exposure, the loss of hair, the onset, the symptoms described in her history, I am of the opinion that the X-ray did *Page 901
definite damage to brain cells, the lining of the brain, and the patient's general system, to the extent that the patient's present complaints and symptoms were produced by this damage."
The objection urged to this question is that it permitted the witness to take into account the history of the case, as related to him by the patient herself. The argument is predicated largely upon the answer of the witness on 4. TRIAL: cross-examination later. The question here reception objected to is only partially hypothetical. The of only hypothesis stated in it was that an X-ray evidence: burn had been suffered in September, 1924. That proper hypothesis had abundant support in the evidence. question The rest of the question refers to the witness's with "examination and knowledge of her condition." improper This presumptively referred to her then answer: condition. It is contended that the answer of effect. the witness indicates that he understood the question as it is now construed by counsel. No attack was made upon the answer, nor relief asked with reference thereto. The same is true as to the later cross-examination of the witness. If the question itself was proper, the ruling was proper. Nor could error be predicated upon it because of later developments in the evidence.
IV. Successive assignments of error are predicated upon the following propositions:
(1) The failure of the court to withdraw, upon motion of the defendant, all evidence concerning the menopause, in that there was no evidence tending to show causal relation between it and the alleged X-ray burn.
(2) Like failure of the court, upon defendant's motion, to withdraw from the consideration of the jury all evidence with respect to plaintiff's impaired vision.
These assignments raise a question of fact, rather than of law, and involve an examination of the record, for the discovery of evidence. The ground of error assigned quite ignores the testimony of Dr. Heagey. It will avail us 5. NEGLIGENCE: nothing to compare the weight of the evidence, proximate as between the opposing expert witnesses. The cause: testimony of Dr. Heagey was that the effect of causal an overdosage of X-ray causes swelling of blood relation. cells, which results in obstruction of circulation, and which first breaks down the smaller veins; that any breaking down of the circulating system necessarily *Page 902
shuts off the supply to parts of the body dependent thereon; that the third cranial nerve has its origin about the focal point selected by Watson; and that this nerve controls substantially all the muscles of the eye. As to the menopause, he testified that the X-ray may have a sterilizing effect upon a patient, and that it is used for just such a purpose. True, in such a case it would not be applied to the head. But if there was an excessive current, it could penetrate other parts of the body. The position in which the plaintiff was put, for the purpose of demonstration, was such as would have permitted the rays to penetrate the abdomen. At least one of defendant's expert witnesses conceded that in such a case menstrual conditions might be affected. The question at this point is one of expert opinion, and is quite incapable of direct evidence. In the light of all the circumstances, the expert opinion was sufficient to go to the jury on the question of causal relation as to both of these disabilities.
V. The defendant complains of the rule of measure of damage submitted by the court to the jury.
(1) In submitting that question to the jury, the court submitted eight interrogatories to be answered by the jury. These indicated that the jury allowed damages as 6. HUSBAND follows: (1) $420 for past physical and mental AND WIFE: pain. (2) $420 for future physical and mental separate pain. (3) $450 for past inability as housewife occupa- and mother. (4) $700 for future inability to tions: perform her duties as housewife and mother. (5) decreased $1,410 for past decrease in earning capacity as earning a doctor's office assistant and bookkeeper. (6) capacity: $750 for future decrease in such earning damages. capacity as a doctor's office assistant and bookkeeper. (7) $150 for past medical treatment. (8) $200 for estimated future expense of medical treatment.
The plaintiff continued her employment with Dr. Welpton until the first of January, 1925, and received her regular salary therefor. From and after such date, as claimed by her and her husband, her disabilities had increased to such an extent that her service to the doctor was negligible, and that her service at home as housewife was greatly impaired by her continued illness and confinement. Her husband was an engineer in the employ of the Northwestern Bell Telephone Company. In December, 1925, his place of employment was changed from Des Moines to Omaha. The family, consisting of himself and the plaintiff and their little *Page 903
son, moved there, and continued their residence there up to the time of the trial. It is urged by the defendant that in no event could the plaintiff recover for decreased earning capacity as an office assistant after she removed to Omaha, — she having testified that she would have moved there in any event, even though she had not been disabled. The argument is that she therefore lost nothing in the way of wages after that date, by reason of her disability. The argument is not sound. Her capacity to do the work was an asset that belonged to her, and she had the same right to avail herself of it in Omaha as in Des Moines. The point here involved is fully covered in Whithey v. Fowler Co.,164 Iowa 377; Nolte v. Chicago, R.I. P.R. Co., 165 Iowa 721, 726. It is needless that we repeat here the discussion contained in those cases.
(2) It is further urged that the instructions of the court permitted the jury to substitute its own judgment of the measure of recovery, rather than to predicate the same upon evidence. The instructions of the court will not fairly bear 7. DAMAGES: this interpretation, except as to the measure of pain, recovery for pain and suffering, and for suffering, disability as a wife and home-keeper. As to etc.: these items of damage, such instruction was judgment proper. Glanville v. Chicago, R.I. P.R. Co.,
of jurors. 196 Iowa 456; Bridenstine v. Iowa City Elec. R.Co., 181 Iowa 1124; Jacobson v. Fullerton, 181 Iowa 1195.
It is further urged that, as to past damages, the plaintiff stopped short of proving just how much she had received of wages from Dr. Welpton after January 1, 1925; that the instructions permitted the jury to allow damages covering the 8. APPEAL very period when she received at least some AND ERROR: compensation from Dr. Welpton. If it be true excessive that this state of the record subjected the damages: defendant to the possibility of excessive curing damages, as for past compensation lost, yet error. special findings appearing in this record disclose conclusively that no such prejudice was in fact suffered. Though the evidence disclosed that, for many years prior to the alleged injury, the plaintiff had been earning $125 per month, and though substantially two years had elapsed from the date of the removal up to the time of the trial, and though she had been unable to earn anything since her removal to Omaha, yet the jury allowed her for such loss only the item of $1,410. This was less than twelve *Page 904
months' salary. If, therefore, the defendant was liable at all, it suffered no prejudice at this point as to the amount of this item.
(3) It is urged by the appellant at this point that plaintiff was allowed a double recovery, in that she was allowed to recover for loss of her service in an independent occupation, and also for her disability as wife and housekeeper. This 9. HUSBAND point is an interesting one, and deserves AND WIFE: careful consideration. It is novel, in the sense separate that it has never arisen before, and could not occupa- arise, except for the enactment of our tions: comparatively recent statute of emancipation of double the married woman. See Section 10461 et seq.,
recovery Code of 1924. By this legislation the married (?) woman is given a status independent of her husband, for loss of which she may recover in her own right. This status is that of "wife or mother." For loss sustained by her as such, she may recover, under the statute, "in addition to any elements of damages recoverable by common law."
The question is a fair one, whether a married woman and a mother who has an independent occupation, and who also occupies a home with her family, may recover in both capacities for loss of the same time and for service at the same time. The question is one which may well be guarded by trial courts in their instructions. It is only partially involved in this record. It is to be borne in mind, however, that engagement in an independent occupation by such married woman is not necessarily inconsistent with her maintenance of a home as wife and mother. To engage in an independent occupation may impair the value of her services as a wife and mother, but does not necessarily supplant it. We think it should be recognized, also, that a wife and mother maintaining a home, who has also the capacity to conduct a lucrative independent occupation, may show the value of her time and services in both capacities to be greater than it would be in one exclusively. The question is one for the jury, in any event, though precautionary instructions on the subject might well be given. The question does not appear to have been brought to the attention of the district court. No precautionary instructions were requested as to the duplication of recovery. Moreover, the special findings disclose that there was no duplication. The allowance to the plaintiff for her disability to perform her customary duty as wife and mother for three years was $450. *Page 905
For the future, her loss as wife and mother was fixed at $700; whereas her future earning capacity in an independent occupation was fixed at $750. We think these findings demonstrate satisfactorily that there was, in fact, no duplication of loss.
(4) The court permitted the jury to award medical expense incurred by the plaintiff. The jury awarded $150 for past medical expenses. Her evidence of actual expenditure was $125. It is contended that the award should not exceed the 10. NEW TRIAL: amount expended. The appellee concedes this, and grounds: offers to remit the excess. The instructions of allowance of the court also allowed the jury to award future future necessary medical expenses. It is urged that medical there was no basis in the evidence for this expenses instruction, and that the jury was permitted to without award the sum solely upon its own judgment. The evidence. evidence was that plaintiff's disabilities were probably permanent. There was no evidence on the probable amount of future medical service. In the nature of the case, there could be nothing but an estimate. That some medical expense would be necessary was manifest. The jury awarded $200. If future medical expenses can be anticipated and provided for at all, it is not readily conceivable that they could be much less than $200.
VI. The appellant complains of alleged failure of the court to put proper limitation upon the consideration of the mortality tables. Two objections to the instruction are predicated upon its failure to state certain matters. The only 11. TRIAL: affirmative objection to the actual contents of instruc- the instruction is that it treated the mortality tions: tables as conclusive upon the jury. We do not so mortality read it. We find it to be replete with tables. qualification and limitation. The instruction is too long to be set forth herein. As illustrative of the qualifications put by the court upon the tables, we quote the following paragraph:
"It is also proper for you to take into consideration, in determining the weight and credit to be given said mortality tables, facts well known to everyone: namely, that human life is uncertain, and that no one can say with any degree of accuracy how long any particular person will live. You must further keep in mind that these mortality tables do not necessarily apply to this plaintiff, but are based upon the observed expectancy *Page 906
among persons in ordinary pursuits and in good condition of health."
It will appear therefrom that it does not purport to make the mortality tables conclusive. The objection that it fails to tell the jury that the tables are to be considered only in the event that plaintiff's injuries are permanent, is not well taken, as a careful reading of the instruction will show. The final objection to the instruction is that it "failed to instruct the jury that the tables could not be considered by it if it found that the injuries tended to shorten plaintiff's life." It is further urged "that the tables are not admissible, or their use permitted, when the injuries tend to shorten life." This assignment of error is predicated upon Canfield v. Chicago, R.I. P.R. Co., 142 Iowa 658. It was not held in the cited case that the mortality tables, under such circumstances, were not admissible. All serious permanent injuries necessarily tend to shorten life. The discussion in the Canfield case, upon which appellant relies, bore only upon the question whether the damages recovered were excessive. In that case, a verdict of $49,000 was recovered. We reduced the verdict, and allowed plaintiff to accept the reduced amount or take a new trial. In his efforts to sustain the verdict as not excessive, the appellee urged upon the attention of this court the pain and suffering which would be endured for 43 years, as the expectancy of the appellee, and that this of itself would sustain the verdict for the full amount. The language relied on by counsel was used in that case in response to this argument, and in support of our holding that the verdict was excessive. It was not held that the mortality tables were not admissible, nor that the trial court erred in submitting the same to the consideration of the jury. The complaint at this point is not well taken.
The foregoing comprises the principal questions argued. We find no prejudicial error in the record, and the judgment is accordingly affirmed, on condition of remittitur. — Affirmed oncondition.
ALBERT, C.J., and FAVILLE, KINDIG, and WAGNER JJ., concur. *Page 907
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Mary Stanley Horak, on November 4, 1931, died testate without issue, survived by her husband, appellant herein, and two brothers. The controversy is as to the estate devised by her will, which is as follows:
"Mary Horak 10-23-31.
"I wish to leave my husband, Fred Horak, all property both real and personal, for his perfectly free use during his lifetime. *Page 319
There are a few family heirlooms that I want handed unto my nephews and niece, Robert Maurice Stanly, James Sidney Stanly and Catherine M. Stanly.
"Mary Stanley Horak.
"Witnesses
"Alice I. Ross
"Lucy Findull."
It is the claim of appellant that the foregoing instrument devised the fee to the real estate to him. The question is a somewhat narrow one and involves only the ascertainment of the intention of the testatrix. The will was written by a layman without regard to technical legal accuracy. The intention of the testatrix must be gathered from the instrument which is obviously without any ambiguity. The devise is of the perfectly free use of the real and personal property of the testatrix during the lifetime of the devisee.
It is contended by appellant that a gift of real estate for life without a gift over passes the whole estate to the devisee. This contention assumes too much. It overlooks the cardinal rule of construction which is the ascertainment of the intention of the testator. If the devise be construed as to a life estate only, intestacy as to the fee follows as a matter of course. Wills will be construed, where it is possible to do so and give full effect to the intention of the testator, so as to avoid intestacy. We said in Busby v. Busby, 137 Iowa 57, 114 N.W. 559,561, that:
"The voice of authority is against the presumption of partial intestacy by intention; and where possible such construction will be given a will presented as to work disposition of the entire estate."
This rule is not, however, one of law, but a rule of construction in aid of the discovery of the testator's intention. In re Rogers Estate, 245 Pa. 306, 91 A. 351, L.R.A. 1917A, 168. Necessarily, it does not follow as a matter of law that a will devising a life estate will be interpreted as a devise of the fee simply because to otherwise interpret it would work intestacy as to the remainder. It is the intention that governs in such cases. Harvey v. Clayton, 206 Iowa 187, 220 N.W. 25; Central Trust Co. v. Langan, 197 Iowa 1202, 198 N.W. 652; Paxton v. Paxton,141 Iowa 96, 119 N.W. 284; Steiff v. Seibert, 128 Iowa 746,105 N.W. 328, 6 L.R.A. (N.S.) 1186. *Page 320
The intention of testatrix to give her husband the life use of all her property, real and personal, is clearly expressed in the instrument. It will permit of no other reasonable construction.
Reliance is placed by appellant upon Lachmund v. Moore,192 Iowa 980, 181 N.W. 4. We find nothing in the language of the court in this case that is in any way contrary to what is said above. Indeed, the rule, universal in its application, which requires that effect be given to the intention of the testator, is not only recognized, but applied, in the cited case. In a large measure, each case must be determined according to the terms of the instrument involved. The mere failure of testatrix to dispose of the remainder is by no means necessarily controlling or conclusive as to her intention, if otherwise expressed. The court is bound to ascertain and follow her intention as expressed in the will. Testatrix may have preferred that the fee should pass to her brothers as her heirs at law rather than as devisees under her will. We are satisfied that the instrument was properly construed by the trial court, and it follows that the judgment and decree should be, and it is, affirmed. — Affirmed.
KINDIG, C.J., and ANDERSON, KINTZINGER, and MITCHELL, JJ., concur.
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Plaintiff, John R. Brooks, alleged that in August, 1922, he entered into an oral agreement with defendant, M.A. Ford, in which they formed an equal partnership for the purpose of manufacturing files and other metal products at Davenport, Iowa, and that said partnership and business was still in operation; that defendant had recently refused to recognize the existence of said partnership, had taken over said business and the partnership assets and refused to account therefor, and that said assets were being wasted. Plaintiff prayed for the dissolution of the partnership, an accounting of its affairs, the appointment of a receiver therefor, the rescission of a written contract between the parties made in 1930, and involving certain partnership rights, and for general equitable relief. Defendant denied the existence of the partnership and the right to rescind the 1930 contract and alleged he was sole owner and proprietor of the business and assets in question. The decree of the trial court granted plaintiff the relief prayed and defendant has appealed. Plaintiff having died after the appeal was taken, the executor of his estate was substituted as appellee herein. However, for convenience, we will refer to decedent as appellee.
[1] I. Appellant, a toolmaker, then aged 31 years, was, in 1922, engaged in the business of selling automobile luggage carriers, which were constructed in part by him. He had a few tools and other equipment and some of the carriers. The business was unsuccessful, its gross receipts were very small and appellant was without funds. Appellee, then aged 61 years, was an expert file cutter. He testified that in August, 1922, he *Page 1240
suggested to appellant that they go into the business of making files, stating he (appellee) had the tools. Appellant said he had no money and appellee then said, "I will take care of myself, and I will furnish the money to get the tools necessary to start the business, which may take a year or may take two years; and you have got to have a lot of courage in this business, because you are going into something you don't absolutely understand." Appellant said, "We will go 50-50", to which appellee assented.
Appellee purchased or advanced funds for the purchase of supplies and equipment necessary to start the business and later for some of the expenses of operation. For several years the two men worked together at making files. The business was then Small and was operated under difficulties. Subsequently, it grew into a substantial business, which employed a number of workmen and had gross earnings amounting to as much as $45,000 per year. In the beginning appellee did the actual work of file cutting, and later was in general charge of that end of the business. The business was operated under the name of M.A. Ford Manufacturing Company, appellant at all times having charge of the office end of the business. Its bank accounts were kept in that name or appellant's name. Appellant, from time to time, made withdrawals for his living expenses and other individual purposes. Appellee drew nothing until April, 1924, after which time he drew a salary which varied between $10 and $40 per week.
Appellant's story is that the file making business was suggested to him by others and that appellee, being then unemployed, loaned appellant the money necessary for appellant to go into said business, agreeing to work without charge until the business should become profitable, "and I could pay him a salary or wages when I was able to pay him out of the profits of the business."
On July 9, 1925, appellant filed in the office of the county recorder a sworn statement of trade name of M.A. Ford Mfg. Co., in which he listed appellant and appellee as the persons interested in said business. M.A. Ford Mfg. Co. filed a federal partnership return of income for the year 1925, signed and verified by appellant and appellee, naming appellant and appellee *Page 1241
as partners, and listing each as entitled to 50 percent of the net income. Thereafter, for each calendar year to and including the year 1938, a federal partnership return of income of M.A. Ford Mfg. Co. was signed and sworn to by appellant (except one return, which was signed and sworn to by appellant's attorney). In each of said returns appellant and appellee were listed as the partners. Beginning with the year 1934, appellant likewise annually made partnership returns of income of M.A. Ford Mfg. Co., to the state, in each of which, under oath, he listed appellant and appellee as the partners. A number of the state and federal returns were prepared for appellant by his attorney. On July 21, 1930, appellant and appellee entered into a written agreement, prepared by appellant's attorney, which recites that said parties are co-partners under the name of the M.A. Ford Manufacturing Company, and mentions the interest of each party in said company. (This contract is hereinafter set out at length.)
There was other evidence, reference to which appears unnecessary. Appellant's explanation of the various signed statements is that because appellee was being paid wages based upon the profits of the business, appellant understood there was what he called "a working partnership". Appellant makes no explanation for the listing, in the first three income tax returns, of the percentage of the net income of each partner at 50 percent or one half.
[2] In argument appellant contends there was here no agreement to share losses, and makes reference to a frequently cited statement in Malvern National Bank v. Halliday, 195 Iowa 734,192 N.W. 843, that one of the salient features of an ordinary partnership is a community of interest in profits and losses. However, the court, in that case, also stated at page 738 of195 Iowa, page 846 of 192 N.W.:
"The mutual liability for losses may and will be implied where the fact of partnership is established by other evidence."
[3] In this case the parties agreed to "go 50-50." In addition, their conduct and written declarations furnish cogent proof of their mutual recognition of the partnership status and the resultant implication of an agreement to share losses. *Page 1242
The trial court found appellee had proven the partnership as alleged in his petition, and we think the record as a whole clearly, convincingly and satisfactorily establishes this conclusion.
[4] II. Another proposition relates to the written contract of July 21, 1930. Appellant testified he had heard appellee was making claim to a partnership interest in the business and that he (appellant) consulted with his attorney, who, as attorney for appellant, prepared the contract. Appellant discussed the contract with appellee and took appellee to the office of appellant's attorney where said contract (referred to as Exhibit A) was executed by both parties, as follows:
"THIS AGREEMENT made by and between M.A. FORD, First Party, and JOHN R. BROOKS, Second Party, WITNESSETH:
"That said parties are co-partners under the name of the M.A. Ford Manufacturing Company.
"That said parties have agreed, and do hereby agree, that the First Party shall cause a life insurance policy to be written in the amount of Seven Thousand ($7,000.00) Dollars with the First Party as the assured and the Second Party as the beneficiary.
"That the parties hereto have agreed, and do hereby agree, that during the life of the Second Party the First Party shall keep the premiums paid on the aforesaid insurance policy and shall not change the beneficiary, but, if the First Party survives the Second Party, the First Party shall have the right to change the beneficiary in said insurance policy after the death of the Second Party.
"That the parties hereto have agreed, and do hereby agree, that if the Second Party shall die prior to the death of the First Party, the interest of the Second Party in the M.A. Ford Manufacturing Company shall forthwith become the property of the First Party and, if the First Party shall die prior to the death of the Second Party, the interest of the Second Party in the M.A. Ford Manufacturing Company shall forthwith become the property of the Estate of the First Party." *Page 1243
This contract recognized the existence of the partnership. As modified by the new contract, the original partnership agreement continued in force and effect. The new contract provided that upon the death of either partner, appellee's interest in the partnership should terminate and become the property of appellant or appellant's estate. This language, when considered with the context, necessarily leads to the deduction that the partnership and appellee's interest therein should not terminate until said time. The benefits to be received by appellee under the contract consisted of his right to participate in the partnership, therein recognized, as long as he and appellant both lived, and in the event appellant, who was 30 years the younger, should predecease him, to receive the proceeds of the policy of life insurance.
Appellant procured and retained in his own possession the insurance policy, which named appellee as beneficiary, if living at appellant's death, or if not living, appellant's wife. In January, 1939, he called at the place where appellee was confined by illness and secured appellee's signature to an assignment of the policy. This assignment was made so that appellant could assign the policy to a bank as security for a loan to buy machinery for the business. That was done.
The petition, filed March 13, 1939, alleged:
"That the consideration for said agreement was wholly inadequate and that the defendant has caused plaintiff to assign away his interest in the life insurance policy provided for in plaintiff's Exhibit `A', and that at this time there is no consideration for a continuation of such executory contract and the same should be annulled and held for naught."
Appellant contends the consideration for appellee's entering into the contract was appellant's promise to take out the insurance, make appellee beneficiary and keep the premiums paid and states that appellant fully performed his part of the agreement. We do not think this was all or the principal part of the agreement. The parties agreed the business was a partnership and that said partnership should continue until the death of one of the partners. That part of the agreement was *Page 1244
the very foundation or root of the contract. Subsequently, appellant repudiated this agreement by denying the partnership and refusing to recognize appellee's status as a partner.
Appellee's benefit from the life insurance was contingent only and the probability of its realization was not great. The policy (which had been assigned to a bank) would be payable to appellee only in the event the much younger man should precede him in death. The only benefit or consideration relatively certain to be received by appellee was the recognition and enjoyment of his status and rights as a partner in the future as well as at the time of the contract. Appellant's repudiation of the partnership and contract deprived appellee of this.
[5] In Collier v. Rawson, 202 Iowa 1159, 211 N.W. 704, which was an action at law for damages resulting from the renunciation of a continuing executory contract, the court said at page 1161 of 202 Iowa, page 705 of 211 N.W.:
"It is now well settled that the final renunciation by one party of a contract providing for future performance gives to the other party an immediate right of election to continue to assert his strict contract rights or to accept the renunciation and sue upon that as a distinct cause of action."
In the same case the court adopted [page 1162 of202 Iowa, page 705 of 211 N.W.] the following statement, cited in Roehm v. Horst, 178 U.S. 1, 13, 20 S. Ct. 780, 785, 44 L. Ed. 953, 958, from Johnstone v. Milling, L.R. 16 Q.B. Div. 460, 467:
"Such a renunciation does not of course amount to a rescission of the contract, because one party to a contract cannot by himself rescind it, but by wrongfully making such a renunciation of the contract he entitles the other party, if he pleases, to agree to the contract being put an end to, subject to the retention by him of his right to bring an action in respect of such wrongful rescission."
In Quarton v. American Law Book Co., 143 Iowa 517, 528,121 N.W. 1009, 1013, 32 L.R.A., N.S., 1, the court said:
"It would be intolerable to hold that, if one party repudiates, renounces or abandons his contract, the other may *Page 1245
not treat the renunciation or repudiation as putting an end to it."
See also Canfield Lumber Co. v. Kint Lumber Co., 148 Iowa 207,127 N.W. 70.
[6] Appellant contends the pleadings and proofs were insufficient to justify the cancellation of the written contract. This action differs from those in which the cancellation of contracts is the basis upon which the aid of equity is invoked. Here the case was necessarily brought in equity because its primary purpose was to establish and dissolve the partnership and for an accounting. In such actions the court is empowered to adjust and settle all the rights of the parties pertaining to and growing out of the subject matter of the action. Creger v. Fenimore, 216 Iowa 273, 249 N.W. 147. The cancellation of the written contract was merely incidental to the main action. Moreover, at said time the rights of the partners, growing out of this partnership contract, could have been adjudicated only in equity and all partnership rights may be adjusted in the accounting phase of the suit.
It is true appellee did not, in so many words, plead his election to treat appellant's renunciation as putting an end to the written contract. But we think that, under the circumstances of this case, the bringing of the action to dissolve the partnership and terminate its affairs evidenced such an election and with the proofs submitted was sufficient to justify the order of rescission or cancellation. Olson v. Brison, 129 Iowa 604,106 N.W. 14.
Wherefore, the decree of the trial court is affirmed. — Affirmed.
MILLER, C.J., and GARFIELD, SAGER, HALE, BLISS, WENNERSTRUM, STIGER, and MITCHELL, JJ., concur. *Page 1246
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[1] The appellee Elizabeth Steffy, as executrix and trustee of the estate of Samuel Steffy, deceased, filed on September 22, 1930, her petition in equity against the appellant Carl C. Schultz, and Minnie Schultz. We shall in this opinion refer to Elizabeth Steffy as the appellee. *Page 832
The appellee alleged in her petition that Carl C. Schultz made, executed, and delivered to one Samuel Steffy his promissory note, in writing, dated March 1, 1920, and due March 1, 1926, bearing interest at the rate of 5 1/2 per cent per annum, payable annually, and for the principal sum of $9,000; and that on the same date and to secure the payment of the $9,000 indebtedness, the appellant Carl C. Schultz made, executed, and delivered to Samuel Steffy his certain real estate mortgage covering the West Half of the Northeast Quarter of Section 34, in Township 80 North, Range 13 West of the Fifth P.M., excepting the right of way of the Chicago Northwestern Railroad. The said Samuel Steffy, the original payee of said note and the grantee in the mortgage, is now deceased, and the appellee Elizabeth Steffy is the duly qualified and acting executrix of his estate.
The appellee alleges that on the 13th day of November, 1920, Carl C. Schultz conveyed the premises described in said mortgage to Minnie Schultz by warranty deed, under the terms of which the said Minnie Schultz assumed and agreed to pay the indebtedness of $9,000 to Samuel Steffy; and that on or about March 1, 1926, Elizabeth Steffy, as executrix of the estate of Samuel Steffy, deceased, agreed that the indebtedness represented by the note and mortgage hereinbefore referred to should be extended for the term of five years. She alleges that at no time did she agree to release the said Carl C. Schultz from his personal liability to pay the said indebtedness; that without her knowledge and without authority, there was prepared a new note and mortgage, which were executed by Minnie Schultz, and that without the knowledge or consent of the appellee, the original note executed by Carl C. Schultz was surrendered to him and a release of the said Carl C. Schultz mortgage was executed by the appellee, and that she did not know that the release of said mortgage would release Carl C. Schultz from all liability, and that had she known she would not have released said mortgage; that the original mortgage given by Carl C. Schultz to Samuel Steffy was duly filed for record in the office of the county recorder of Poweshiek County on March 3, 1920, and appears of record in Book 137 of Mortgages, on page 509. The appellee prays that the release of Carl C. Schultz, the appellant, on said indebtedness be cancelled and held for naught, and that the mortgage made and executed by Carl C. Schultz to Samuel Steffy, and dated February 26, 1920, and covering the land above described, be established as a first lien upon *Page 833
the premises described therein from the date thereof, to wit, from February 26, 1920, and that the appellee have judgment against the appellant Carl C. Schultz, and Minnie Schultz, on the original indebtedness secured by the said mortgage, and for the costs of this action, and that the mortgage be foreclosed and the equity of redemption of the said Carl C. Schultz and Minnie Schultz, and each of them, be forever barred and foreclosed, and that special execution issue for the sale of the premises described and general execution for any balance of said judgment remaining unpaid. The appellee later amended her petition, crediting the payment of $500 upon the said mortgage, and asking for judgment in the amount of $8,500, plus interest and costs. The appellee also tendered the release of the said mortgage and the note signed by Minnie Schultz, and dated March 1, 1926. To the appellee's petition Carl C. Schultz and Minnie Schultz filed answer, in which they denied generally and specifically every allegation stated in the petition except such as were admitted in their answer. The appellant Carl C. Schultz admitted that he made, executed, and delivered the $9,000 note to Samuel Steffy, together with the mortgage to secure said note, as alleged in the appellee's petition. Appellant alleged that Minnie Schultz executed and delivered to Elizabeth Steffy a new note for the sum of $8,500, due in five years after date, with interest at 5 1/2 per cent per annum, and made, executed, and delivered to the said Elizabeth Steffy a written mortgage lien against the land covered by the mortgage made by the said Carl C. Schultz to Samuel Steffy, to secure the said note of $8,500, and that the said Elizabeth Steffy accepted the said new note and mortgage in payment of the note and mortgage made and executed by Carl C. Schultz to the said Samuel Steffy and dated February 26, 1920. The appellant also alleged that by her actions Elizabeth Steffy was now estopped from claiming or having any right, title, or interest under the note and mortgage given by Carl C. Schultz to Samuel Steffy. The appellant further alleged that the said Elizabeth Steffy has been guilty of laches, and that she has lost, waived, and abandoned all claims or rights to proceed against the said Carl C. Schultz. On the 14th day of March, 1931, the appellant Carl C. Schultz filed in the office of the clerk of said court his cross-petition against Elizabeth Steffy individually, in which he alleged that by reason of the conduct and actions of the said Elizabeth Steffy the said Carl C. Schultz believed that on or about March 1, 1926, he was released and relieved from all *Page 834
liability on account of the indebtedness covered by the note and mortgage given by Carl C. Schultz to Samuel Steffy; that the land covered by the mortgage was, up until the 1st day of March, 1926, when said note and mortgage were returned to him by the appellee, fairly worth a sum in excess of the indebtedness shown by the said note and mortgage, but that since the delivery of the said note and mortgage and release the land described in the mortgage has depreciated and decreased in value to an aggregate amount of much less than the amount prayed for in appellee's petition; and that through the actions and failure of the said Elizabeth Steffy to do the things she should have done, she is individually liable to the appellant, and asked that, in the event the court decreed foreclosure as prayed by the said Elizabeth Steffy, and entered judgment against the cross-petitioner, the cross-petitioner be awarded judgment against the said Elizabeth Steffy individually for any and all expenses, costs, and damages suffered by him in this cause by reason of any depreciation or decrease in the value of said real estate from and since March 1, 1926, and for any deficiency after the sale of said land at execution sale. Elizabeth Steffy appeared and filed answer to said cross-petition. She denied each and every allegation contained in the said cross-petition, and by way of defense, as a matter of law, to said cross-petition, she stated that the cross-petition shows upon its face that the said Carl C. Schultz is not entitled to the relief demanded, or to any relief against the said Elizabeth Steffy.
The main contention of the appellant here for reversal is that Mrs. Steffy, as executrix of the estate of Samuel Steffy, accepted the new note of Minnie Schultz in payment of the old note which was signed by Carl C. Schultz, and that as it was a matter of payment it was not necessary to secure an order of court authorizing her to release the mortgage. (Code, Section 11929.) In the latter part of 1925, or in January, 1926, Fred Schultz, who was a brother of Carl C. Schultz and Minnie Schultz, but had no interest whatever in any of the transactions herein set out, went to see Mrs. Steffy. There was no one else present at the time of the conversation, which took place at Mrs. Steffy's home. There is a dispute in the record in regard to that conversation. Fred Schultz testified that he asked Mrs. Steffy whether she knew that his brother Carl had sold the farm to his sister. He said Mrs. Steffy replied that she did. He then testified that he said to Mrs. Steffy, "The mortgage is due," and asked her whether his sister (Minnie) could have the money, and *Page 835
Mrs. Steffy said she could. He then testified that Mrs. Steffy said she would go down to the bank in a day or two and have Mr. Chittenden see to making out some new papers. Mrs. Steffy testified that she knew that the farm had been sold by Carl to Minnie, and that at the time that Fred Schultz talked with her she said she would renew the loan; that she did not say that she would go down to see Mr. Chittenden and have the new papers made out, and she testified that she never did tell Mr. Chittenden to make out the new papers. Mr. Chittenden, the banker, however, testified that Mrs. Steffy did tell him to make out the new papers. At the time that Mrs. Steffy and Fred Schultz had the conversation in regard to the loan in 1925 or 1926, the record shows that the farm upon which the mortgage had been given to secure the loan was worth greatly in excess of the amount of the loan, and that it was ample security for a loan of $8,500. Mrs. Steffy's testimony in the record stands alone in regard to her contention as to whether it was to be a renewal of the old loan or a new loan. There are a great many facts which go to prove the contention of the appellant in this case that instead of a renewal it was, in fact, a new loan. Mrs. Steffy is a lady along in years. The record clearly shows that her memory was not good in regard to what took place at the time of the conversation between Mrs. Steffy and Fred Schultz. She says that she did not say that she would have Mr. Chittenden, the banker who looked after her business, make out the new papers. She testified that she never told Mr. Chittenden to make out the new papers. Mr. Chittenden, the banker, however, testified that she did tell him, and that, in compliance with Mrs. Steffy's request, he had the new papers made out. Mr. Chittenden was Mrs. Steffy's adviser. He was a banker, a man of a great deal of business experience. He made out the new papers within a short time after Mrs. Steffy and Fred Schultz had had the conversation. In making out the new papers Mr. Chittenden accepted a note signed only by Minnie Schultz. He knew that Carl C. Schultz was not signing the new note, and he did not ask Carl C. Schultz to sign the new note. The old note was returned to Carl C. Schultz. He knew that Carl C. Schultz was being released from the old indebtedness by the accepting of a new note from Minnie Schultz. A few days after March 1, 1926, shortly after the new note and mortgage were made out, Mrs. Steffy went to the bank, and she herself signed a release of the old mortgage, which release was prepared by Mr. Chittenden, releasing Carl C. Schultz from the mortgage. *Page 836
The record shows that Mrs. Steffy was a woman of some education, and could read and write. This release was delivered to Carl C. Schultz, and within a few days thereafter was duly recorded by him in the office of the county recorder. There is no claim in this record but that Mr. Chittenden acted in good faith. He was Mrs. Steffy's agent. He was the man she relied upon. He was the man that she instructed to make out the new papers. The new note was in the amount of $8,500, while the old note was in the amount of $9,000, the old note having been reduced from $9,000 to $8,500 by payments which were made by Minnie Schultz to Mrs. Steffy. The record also shows that the new note and the new mortgage were placed in Mrs. Steffy's safety deposit box in the bank. In 1929 Mrs. Steffy desired to borrow some money from the Farmers Savings Bank. In order to borrow this money she put up as collateral security the new note signed only by Minnie Schultz. The new note at that time was in her possession. She even indorsed it, and, while she claims that she did not know that it was signed only by Minnie Schultz, the note being in her possession and she having indorsed it, it seems that she must have known that it was signed only by Minnie Schultz. This was better than a year before this action was commenced. Mrs. Steffy had a life interest in the estate, with no restrictions as to the handling of the property or the use of the funds. In the fall of 1929, Fred Schultz testified he went again to Mrs. Steffy. At that time he told Mrs. Steffy that his sister Minnie could not make the payments and asked her (Mrs. Steffy) if she would be willing to take the land back. He testified that she said that she would not, and in the same conversation she said that where she made the mistake was that she should not have released him (Carl C. Schultz) from the mortgage. This conversation, testified to by Fred Schultz, was not denied by Mrs. Steffy. The record shows that in 1930, when this action was commenced, there had been a material drop in real estate and that the Schultz farm had greatly decreased in value. Mrs. Steffy waited four and a half years after she had signed the release releasing Carl C. Schultz, four and a half years after she had accepted the new note from Minnie Schultz, during all of which time Minnie Schultz had made payments of interest directly to Mrs. Steffy on the new note. Mrs. Steffy waited until the values of real estate had greatly decreased, and then for the first time she informed Carl C. Schultz and the other parties interested that she did not know that Carl C. Schultz had not signed the new *Page 837
note and that she had not agreed to release Carl C. Schultz. It seems to us that Mrs. Steffy — having had the conversation with Fred Schultz in 1926; having directed her adviser, a banker, Mr. Chittenden, to make out the new papers; having signed a release of the old mortgage; having returned the old note to Carl C. Schultz; having had the new note in her possession for a matter of better than four and a half years; having had a new note made out in a sum not the same as the old note; having accepted the new note at a time when the security was ample; having stood by for a period of four and a half years and objecting only when the values of real estate had decreased and the security for the new note was questionable — cannot say now that she did not accept the new note of Minnie Schultz in 1926 in payment of the note signed by Carl C. Schultz.
[2] The release of the mortgage she executed was executed by her in her official capacity. It was not necessary to secure an order of court for her to release the mortgage, as the new note was given in payment of the old note. The appellee was not entitled to the relief which she seeks in this action, and the lower court was wrong in its finding and in its decree, and the judgment of the lower court must be and it is hereby — Reversed.
All Justices concur.
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On May 2, 1933, Christ K. Haga made the will involved herein. On the morning of the same day a court had directed a verdict in his behalf in a proceeding brought by his two sons (contestants-appellees herein) to have him declared incompetent and to have a guardian appointed over him.
The life history of the testator is out of the ordinary. He was found to be insane on April 20, 1915, and was confined in *Page 1314
an asylum in Yankton, South Dakota, until November of the same year. He was restored to full competency by order of court on May 29, 1916. From that date he apparently managed his affairs until the summer of 1923, when he was again committed to the same asylum and from which he was discharged in July 1925, and restored to full competency in October 1928. This second commitment appears to have been brought about largely because of sexual perversion, much evidence of which appears in the record but which need not be set out here. From the date of this second restoration to competency until the date of his death Haga managed his business without further control. Some, though not all, of his activities will be set out herein.
Some time in the early part of 1933, the sons of testator, appellees herein, learning that one Ingebrightson, father of proponent, had brought foreclosure proceedings in his own name on a mortgage owned by Haga, started a proceeding to have a guardian appointed for Haga for the reason, as their petition alleges:
"That the said Christ K. Haga is now mentally incompetent and has been for a period of several years, and is incapable from such incompetence of handling and managing his own business and property, and that he is easily influenced, and is at present rapidly dissipating his estate."
This application Haga resisted and the court directed a verdict in his behalf.
Why the mortgage above referred to was assigned to Ingebrightson does not appear, but under a contract made with Haga in January 1933, Ingebrightson agreed to account for the proceeds thereof.
Following the direction of a verdict in Haga's behalf he, in a few hours and on the afternoon of the same day, took back the mortgage by proper assignment, and had his attorney prepare a will which was duly executed and which now furnishes the subject of this controversy.
[1] This brings us to an analysis of the testimony upon which the case turns. No attempt will be made to set out the testimony with reference to Haga's life up to the time of his second release from guardianship and his restoration to competency in October 1928. It is sufficient to say that the appointment of a guardian appears to have been warranted on both *Page 1315
occasions, the second appointment being based very largely upon sex perversion. In considering the weight to be given to the judgment of the court in restoring Haga to competency and to the management of his own business we have in mind our holding in In re Will of Fenton, 97 Iowa 192, 66 N.W. 99, which on the subject here involved has never been extended, modified, or overruled. In that case we said:
"The holdings are numerous to the effect that persons under guardianship are, prima facie, disqualified to make a will. In re Johnson's Estate, 57 Cal. 529; Hamilton v. Hamilton, 10 R.I. 538; Brady v. McBride, 39 N.J. Eq. 495; Breed v. Prat, 18 Pick. [Mass.] 115; In re Gangwere's Estate, 14 Pa. 417 [53 Am. Dec. 554]; McGinnis v. Com., 74 Pa. 245; Lucas v. Parsons, 23 Ga. 267; Woerner Adm'n., section 27; Schouler, Wills, sections 81, 82. In Leonard v. Leonard, 14 Pick. [Mass.] 280, in speaking of a person`non compos mentis under guardianship,' where it is held that, as to a payment to the ward, by one knowing of the guardianship, it was conclusive evidence of an unsound mind of the ward, the court says: `We are of opinion that, as to most subjects, the decree of the probate court, so long as guardianship continues, is conclusive evidence of the disability of the ward, but that it is not conclusive as to all. For example, the ward, if, in fact, of sufficient capacity, may make a will; for this is an act which the guardian cannot do for him.' In Rice v. Rice, 50 Mich. 448
[15 N.W. 545], the proceeding was for the probate of a will, and the objection was on the ground of the insanity of the testator, who was, shortly after the making of the will, and on the same day, adjudged `mentally incompetent to have the charge and management of his property,' and placed under guardianship. The contestants contended that the order appointing a guardian wasprima facie evidence of a want of capacity to make the will, and the court (Mr. Justice Cooley delivering the opinion) denied even the prima facie effect of such an order, but said that, if the proceeding for the guardianship had involved the question of testamentary capacity, such a rule would have obtained."
We there reserved (and now leave open) the question as to whether the record of the discharge in guardianship was evenprima facie evidence of soundness of mind. Under the facts in the case before us, we do give some weight to the fact that the *Page 1316
trial court found Haga of sound mind a few hours before the will was made.
As above stated, we do not set out the evidence of Haga's condition between the periods of his two commitments. During the time he was restored to the management of his own business he managed his own affairs until sexual perversion induced his second return to the asylum; but from his release in October 1928, while he was somewhat strange in his manner, it does not appear that he was not competent to manage his affairs, nor that his conduct was such as to suggest that a guardian should again be placed over him. One of his sons, who now contests his will, entered into a contract with him for the renting of a farm, and, while their relations seem not to have been entirely satisfactory, they disclose no hint of unsoundness. During this period, in addition to dealing with his son in the relation of landlord and tenant with the business incident thereto, he purchased real and personal property, and until the foreclosure proceedings in the name of Ingebrightson it did not occur to anyone that the oddities of Haga amounted to, or suggested, incapacity to manage his affairs. There are in the record many incidents of strange conduct produced by contestants, but the dates of their occurrence are in many cases uncertain and most of them seem to relate to the period before the second commitment to the asylum.
The relation between the testator and his sons was not very cordial and their manner of dealing with each other was more like that of strangers than that of close kindred, but this may be accounted for, perhaps, by the fact that the mother had divorced Haga about eight years before, getting the custody of contestants, who were then quite young. At the time of the divorce the mother of the contestants was the owner of one hundred twenty acres of land, and, for the support and maintenance of the two small boys, secured a property settlement of $8,500 from Haga, who at the time was the owner of one hundred sixty acres.
Following the contest over the appointment of the guardian, which resulted in the directed verdict as stated, on the day the will was made, Haga consulted his attorney and, without direction or interference, willed his property to proponent, except one dollar each to contestants and their mother, and named proponent as his executor without bond.
Before this, and in 1929, Haga had negotiated the purchase *Page 1317
of a farm with witness Lewis, who, after narrating some of the activities of the testator, stated:
"From what I saw of him, I think he was sane; as far as I could judge, he was all right."
About the same time Madelen (trucker) hauled lumber, hogs, oats, corn, and cattle for Haga, visited with him often, appears not to have seen anything unusual; on the contrary, he said:
"From the opportunity I had to observe him, I would say I never saw anything wrong with him; he certainly was sane."
To the same effect the witness Helgeson, a blacksmith by trade, who had done some work for Haga, and saw him:
"* * * off and on all the time he lived on the farm; * * * would say he was sane."
Anderson, a tenant of Haga in 1932, was a single man, and he and Haga lived together on the latter's farm, sharing the cost of their groceries out of the proceeds of eggs. He said that they had many conversations on general subjects and that from what he observed he regarded Haga as sane. He admits that Haga was a little odd. He explains this observation as being based on the fact that:
"* * * he would do things differently than I did, * * *."
Stensland, with whom Haga stored some of his machinery in the fall of 1929, says they went to the same church. Witness would often pick him up and take him there. The witness lived a quarter of a mile from Haga, who visited in the home of the witness once in a while. This neighbor regarded him as being "all right and that he was sane." On cross-examination this witness stated he had talked with Haga at sales two or three times and that he talked the same as any other person, and that he talked upon various topics, farming, prices, and so on.
Witness Skattebol, a carpenter, worked for Haga from June to the first part of November 1930, fixing the buildings on the farm the latter had purchased. During this period they visited a great deal and the witness stayed on the farm many nights. The witness saw him at other times in the neighborhood and in Canton, and expressed the opinion that Haga was sane. *Page 1318
Harold Bogue, of Canton, South Dakota, was the attorney to whom Haga brought the notice of the proceedings in which contestants sought to have him declared incompetent and to have a guardian appointed for him. Haga stated that he could not understand why the boys would do such a thing and believed that they were anxious to get his property. Before the trial of these proceedings the attorney talked over the evidence that was to be produced and Haga took an active part. The trial lasted a day and a half, during which time Haga sat beside the attorney and talked about it throughout. He was active in the defense, but was not called as a witness. After dinner (the trial ending about noon) he asked the attorney if it wasn't a good time to make a will. What was done immediately prior to the execution of the will is thus stated by the attorney who drew it:
"He asked me at that time to make his will and I asked him what property he had, and he told me what he had and about the mortgage which he had together with the back taxes and interest; he said he had some personal property on the farm, some horses, a few cows and machinery; he told me he had two sons, Conrad and Roy (contestants); and told me he was divorced from his wife, and that at the time he had given her $8,500 and that she had the support and care of the two minor sons, Conrad and Roy. He said he wanted to give his money and estate to Korrell Ingebrightson, he stated that the boys had started this guardianship action against him and that he had seen very little of the boys since the time his wife divorced him, and that he did not know Roy very well. He said he had stayed at Korrell Ingebrightson's; when he did not have a home he could always go to Korrell's, and that Korrell had always been kind to him, and stated that he had acquired the property and did not see why he couldn't give it to whom he wanted to. From my observations of him and in my opinion, he was sane."
We close this narration with the testimony of Dr. Hummer, who was called to examine Haga preliminary to the last hearing on the question of guardianship. At this time he spent an hour and a half with testator, and discussed his previous commitments to the asylum, property, people, and relatives, talked with him about his divorce and the way his sons had treated him. The doctor said:
"I tried his memory, his ideation, his reasoning faculty. *Page 1319
Tried to ascertain whether there were any delusions or hallucinations; tried to get a general idea of his attitude towards himself and his environments; very nearly exhausted the subject. There was a marked change in his mental condition from 1923 to 1933. In my examination in 1933 there is no question in my mind that Christ Haga was then sane. These facts were gathered from the examination and he had undoubtedly recovered from his mental ailment in 1923."
As stated, we have not undertaken to set out all the facts. The foregoing are sufficient to afford a fairly accurate picture of Haga and his mentality.
We have read the record in this case with care and we cannot escape the conclusion that contestants failed to sustain the burden of proving that Haga lacked testamentary capacity to make the will in question. It follows that the court erred in not sustaining proponent's motion to direct on this ground and in failing to sustain the motion for a new trial on the same ground.
[2] Appellant contends that there was no evidence upon which to submit the issue of undue influence, and we think he is right. While it does appear that Ingebrightson furnished a home for Haga and at times counseled with him, it does not appear that proponent or his parents ever sought to influence him in the disposal of his property. That a mortgage owned by testator was in the name of Ingebrightson and foreclosure was started in his name, loses any sinister significance in the light of the contract held by testator under which an accounting was to be made to him of the avails of this mortgage. Nowhere in the record does it appear that proponent or his father and mother made any suggestions as to how Haga was to leave his property.
Appellant complains some of the instructions given by the court, but we do not, in the light of this opinion, find it necessary to consider them. Neither do we feel called on to set out the authorities cited by counsel. They announce familiar rules of law applicable to cases of this kind.
From what has been said it follows that this case should be, and it is reversed. — Reversed.
RICHARDS, C.J., and ANDERSON, KINTZINGER, PARSONS, and STIGER, JJ., concur. *Page 1320
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On the 13th day of February, 1925, the defendant Frederick Alden obtained judgment in the municipal court of the city of Des Moines against the plaintiff and his wife, in the sum of $100. The same was duly transcripted to the district court of Polk County, Iowa, and in May following, execution was issued thereon, and the sheriff of Polk County, defendant herein, levied on a certain Lexington automobile as the property of the plaintiff, Shepard, and advertised the same for sale. This action was on behalf of Shepard, to enjoin the sale of this automobile, on the ground that the same was exempt to him, as the head of a family.
At the close of plaintiff's testimony, on motion, the court gave the defendants a verdict, on the ground that plaintiff had not produced any competent evidence to sustain the allegations of his petition; that the evidence showed conclusively that the automobile did not belong to the plaintiff, but to his wife, Rose Altha Shepard, and had been forfeited by her statements on the stand, in an affidavit which she admitted she signed; further, that the plaintiff has not sustained any of the allegations of his petition by competent evidence, and nothing has been shown which in any way indicates that plaintiff is entitled to this automobile as exempt property. As the defendants introduced no testimony in the case, the determination thereof must rest upon the testimony introduced by the plaintiff and whatever conflict there may be therein. The following testimony is uncontradicted: The plaintiff had lived in Des Moines for about 46 years; he was a married man and head of a family. He was a bricklayer by occupation, for about the last thirty years; had no other source of income. He had been married to his present wife about 26 years. The automobile in controversy was bought on the 25th day of August, 1923, by the plaintiff, and paid for by him. At the time thereof, he received a bill of sale from the garage company from which he purchased the same, in which he was named as grantee. He used this car in his occupation as bricklayer, in traveling from place to place, as his work called, and hauled his tools therein, and on various *Page 109
occasions hauled material that he needed in his work, which was all performed in Des Moines or in its vicinity. The evidence showed that he did not give a bill of sale of said car to his wife, or to any other person; that he always drove the car, and at no time did his wife drive the same; that it was the only conveyance he had for going back and forth to his work; that the car was registered in the treasurer's office of Polk County in the name of the wife, and she served notice on the sheriff to release the same from execution, claiming to be the owner of the property and that she had purchased it with her own money; that plaintiff paid all bills for the upkeep of the car, together with all gasoline and oil used thereon. So far, the record is undisputed.
The plaintiff testified, in terms, that he is the owner of the car, and never parted with title thereto. It appears that the wife was industrious, and aided the husband in making the brick and constructing the residence in which they lived. Plaintiff testified:
"At the time the car was purchased, I laid the money down on the table, and asked her if she would rather have the money or nothing. I said, `It is yours, — what do you want to do with it?' and she said, `I want to buy a car.'"
The wife testified:
"I never exercised any control over the automobile myself. I never had hold of the steering wheel. I did not have anybody run the car besides Mr. Shepard."
She denied that she was the owner of the car, and further said:
"I owned it in one way. It is in my own name in the license bureau. That is, Mr. Shepard bought the car and paid for it."
There was introduced in evidence a sworn notice of release, signed by the wife, notifying the sheriff to release the automobile, and stating that the same was hers absolutely; that she acquired the money that was paid for the same by her personal labor.
The above is a general statement of the evidence in the case on which the court acted in directing a verdict in favor of the defendants.
Section 11760, Code of 1924, provides: *Page 110
"If the debtor is a resident of this state and the head of a family, he may hold exempt from execution the following property: * * * 18. If the debtor is a physician, public officer, farmer, teamster, or other laborer, a team, consisting of not more than two horses or mules, or two yoke of cattle, and the wagon or other vehicle, with the proper harness or tackle, by the use of which he habitually earns his living, otherwise one horse."
In Krebs v. Nicholson, 118 Iowa 134, this court defines "laborer" as "one who is `engaged in some toilsome physical occupation; one who performs work which requires little skill or special training.'" In Lames v. Armstrong, 162 Iowa 327, at 331, we enlarged this definition somewhat by saying, "It may mean one who labors or works with mind or body."
That an automobile is a vehicle, within the meaning of the above quoted statute, we have settled in the cases of Lames v.Armstrong, supra; Waterhouse v. Johnson, 194 Iowa 343; Weaver v.Florke, 195 Iowa 1085.
Under the record in this case, the plaintiff has established by undisputed evidence that he is a resident of the state and the head of a family; that he is a laborer; and that his automobile is his vehicle by the use of which he habitually earns his living. So far, then, the plaintiff made a case showing that he was entitled to hold the automobile as exempt, under this section of the statute.
The narrow question, therefore, left in the case is whether or not the plaintiff was the owner of this automobile. The evidence shows without dispute that he bought the automobile in his own name, and received a bill of sale therefor from the seller, in which he was named as grantee. In addition, the evidence shows that he was always in possession of this car, and drove it, and used it in his business as a bricklayer. Stress is laid upon the fact that the automobile was registered in the wife's name. That this fact is of no force and effect in cases of this kind we have settled in the case of Cerex Co. v. Peterson, 203 Iowa 355, where we held that the registration statute as to automobiles and the provisions therein with reference to transferring the same had nothing whatever to do with private parties in the sale or transfer of automobiles, but that, as between *Page 111
such parties, the Uniform Sales Act and the general law in relation to sales are controlling.
It is the general rule in this state that the exemption laws shall be liberally construed in favor of a debtor. The purpose underlying all exemption legislation is to secure to the unfortunate debtor the means to support himself and the family, the protection of the family being the main consideration.Schooley v. Schooley, 184 Iowa 835.
Under the evidence in the case, it cannot be found that the wife was ever in possession of this property. It was never transferred to her, and her testimony, although contradicted by an affidavit filed in the case to the contrary, is that she "was the owner in one way, — that it was in her name in the license bureau," but that "Mr. Shepard bought and paid for it;" while the plaintiff testified absolutely that he was the owner of the automobile at all times.
That, to make a valid transfer, under the circumstances existing in this case, there must be possession in the wife, as against third parties, has been abundantly settled by the authorities in this state. Smith v. Hewett, 13 Iowa 94; Odell Updegraff v. Lee Kinnard, 14 Iowa 411; Hesser Hale v. Wilson,36 Iowa 152; Boothby Co. v. Brown, 40 Iowa 104; Smith v.Champney, 50 Iowa 174; Nuckolls v. Pence, 52 Iowa 581.
In view of the fact that the defendant introduced no testimony, applying this law to the case before us we are disposed to hold that the court erred in this matter. There is no question that the plaintiff made a prima-facie case showing that this property was exempt to him as the head of a family, and the court should have so held. — Reversed.
EVANS, C.J., and FAVILLE, VERMILION, MORLING, and KINDIG, JJ., concur.
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The principal question, and, in the view we take, the only one we are required to determine, arises between the plaintiff appellee, and the intervener, the appellant, 1. TRUSTS: over the ownership of a certain note payable to constructive the order of Ennis Boggs, for $10,000, dated trusts: February 28, 1918, signed by the appellees owner of Charley Warner and Minnie Warner, and secured by promissory a mortgage on land. It is conceded that there is note payable but $3,000 and accrued interest due on the note. to agent. The note bears the following indorsements:
"Int. paid to 28 Feby. 1919." "Int. paid to Feby. 28 1920." "I hereby assign to Ella P. Robinson $6,000 of within note. [Signed] Ennis Boggs."
Miss Ennis Boggs had at one time been engaged in the abstract and loan business at Manchester. She loaned the funds of others intrusted to her for that purpose. Some ten or twelve years before her death, in 1922, she removed to Jacksonville, Florida, where she continued in the same business, and continued also to handle the investments of clients in Iowa. She had at one time been associated in business with R.R. Robinson, who was the husband of Ella P. Robinson, deceased. Glenn P. Robinson, as executor of the estate of Ella P. Robinson, is the intervener. Glenn P. Robinson is also the administrator of the estate of Ennis Boggs, and as such appeared in this action, and disclaimed any interest in the note and mortgage in controversy. *Page 1002
It appears that in 1908 one Merriam sold a farm in Delaware County to the appellees Charley and Minnie Warner, taking their notes aggregating $19,100, secured by a mortgage on the land, in part payment. Subsequently, Merriam bought a farm from R.R. Robinson, in which Ennis Boggs seems to have had some interest, and turned the notes and mortgage for $19,100 over, in part payment. Ennis Boggs had in her hands for some years a considerable amount of money belonging to the appellee Harris, which she handled and invested for him. The notes and mortgage of the Warners for $19,100 came into the possession of Harris, as representing a part of his money so in the hands of Miss Boggs. It is not entirely clear what the indorsements on the notes were. Harris testified that they were indorsed by Merriam to him, and that, as they appeared at the trial, the indorsements had been changed. We understand that alterations in the indorsements were apparent, and that, as they appeared at the time of the trial, they were indorsed by Merriam to R.R. Robinson and Ennis Boggs. Whatever the fact may be as to this, it is shown without dispute that the notes and mortgage were in the actual possession of Harris from 1910 or 1911 to some time in 1918.
At this point we may observe that objections were interposed to the competency of the witness Harris to testify to personal transactions or communications between himself and Ennis Boggs, deceased, as against the intervener, claiming by 2. WITNESSES: assignment from her to his testatrix, under competency: Section 4604, Code of 1897 (Section 11257, Code transaction of 1924). This objection, where timely, was with good. deceased: testimony against executor.
But it is established by competent evidence that, shortly before the notes were due, which was on February 28, 1918, Harris sent them with the mortgage to Miss Boggs at Jacksonville. She prepared the note and mortgage in controversy here, for the balance that would remain unpaid on the former notes, after deducting a payment of $2,000 to be made on the principal at that time, and sent them to a bank at Ryan, Iowa, to be executed by the Warners. They were so executed, and returned by the bank with remittance of the payment to Miss Boggs at Jacksonville. *Page 1003
The plaintiff produced and introduced on the trial a so-called ledger that he had had in his possession from the time entries were first made in it. The entries were in the handwriting of Ennis Boggs, and related to various loans, including the Warner loan. It showed the original loan of $19,100, the payments of interest and principal, and the renewal in the sum of $10,000 on March 1, 1918. On March 2, 1918, Miss Boggs wrote Harris:
"Mr. Werner [a spelling of Warner's name shown to have been used by her] has not returned his papers yet as it seems there was a second loan on the place and he has had to have that released before our new loan will be a first lien. I have not released the old mortgage and will not until the abstract is returned to me showing the new mortgage a first lien. As soon as the papers are in shape I will send them to you as that loan is nearer you than me."
In earlier letters she had accounted to Harris for payments of principal and interest on the notes for $19,100, and in subsequent letters to him accounted for the interest on the $10,000 note in controversy, for the years 1919 to 1922, inclusive.
Upon this evidence, the appellee Harris claims that he has established a trust in his favor upon the note and mortgage in question in the hands of Ennis Boggs. We think this is true. Inre Estate of Fisher, 128 Iowa 18; Amidon v. Snouffer, 139 Iowa 159; Frink v. Commercial Bank of Emmetsburg, 195 Iowa 1011. But this is not conclusive as against the intervener, who is in possession of the note and holds under the indorsement of the payee.
The note and mortgage, as has been said, are payable to Ennis Boggs; and the note bears the indorsement, set out above, of $6,000 of its amount to Ella P. Robinson, signed by Ennis Boggs. The note and mortgage were in the possession of Ella P. Robinson, and were produced by the intervener, her executor. In order to impress the trust upon the property in the hands of the intervener, the appellee Harris was further required to show that Ella P. Robinson was not a purchaser for value without notice.
"Equity will not impress a constructive trust upon property that has passed into the hands of a good-faith purchaser *Page 1004
for value, without notice. Such a purchaser is regarded as equal, if not superior, in equity. Where the equities are equal as between two innocent parties, the one having the legal right and title will prevail. This is a broad principle in equity, which has a manifold application. It is not dependent for its operation upon recording acts or upon the Negotiable Instruments Act, although it be consonant therewith. It is older than both of these. It is as old as equity jurisprudence, and is fundamental therein." Frink v. Commercial Bank of Emmetsburg, supra; Wegenerv. Emmetsburg Nat. Bank, 195 Iowa 1267.
The case does not involve the question whether Ella P. Robinson was a holder in due course, as against defenses which the maker might have against the payee; but the question is whether Harris, the equitable owner of the paper as against the 3. BILLS AND payee, is entitled to recover it as against the NOTES: apparent legal title acquired by Ella P. indorsement: Robinson by indorsement and delivery from the partial payee. And this is not controlled by the fact indorsement: that the indorsement is not of the entire protection instrument, under Section 3060-a32, Code in equity. Supplement, 1913 (Section 9492, Code of 1924), but depends, under the evidence in this case, upon whether Ella P. Robinson paid value for the note and mortgage, or her alleged interest in it, or whether it was transferred to her by Ennis Boggs as a mere accommodation. If she paid nothing for the note, this is as fatal to her standing as a good-faith purchaser as if she took with notice of the rights of Harris. As to this, the evidence, we think, does not leave the question in serious doubt. There is in evidence the paid check of Ella P. Robinson to Ennis Boggs for $6,000, dated March 3, 1919, and the paid check of Ennis Boggs to Ella P. Robinson for $300, dated March 8, 1920. In the corner of the latter appears the name "Werner." It is claimed that the $6,000 check shows the payment by Mrs. Robinson to Ennis Boggs of that amount for so much of the note, and that the latter was in payment of a year's interest due Mrs. Robinson as such owner. There is no evidence to connect the $6,000 check with the Warner note; and the same thing is true with respect to the check for $300, unless it be the name "Werner" on the corner of the check. There is conflict in the testimony as to whether this name is in the handwriting *Page 1005
of Ennis Boggs. It is, however, shown by the testimony of B.J. Jewell, whose deposition was taken by Harris, but offered by the intervener, that, on or about October 9, 1920, over a year and a half after the date of the $6,000 check, Ennis Boggs asked him to loan Mrs. Robinson $6,000, to complete a house the latter was building, and take Mrs. Robinson's note, and that:
"Ennis Boggs said she would indorse $6,000 to Mrs. Robinson on a note of $10,000 which she held against Charley Warner, of Delaware County, Iowa, his note being covered by a mortgage on a farm and duly recorded in the records of Delaware County, Iowa, and his note was due at the time the note Mrs. Robinson was to give me would be due."
He further testified:
"Ella P. Robinson then took the note she was to give me, and stepped into the other room of Ennis Boggs's office, to sign the same, and Ennis Boggs took the Warner note to her desk and wrote something on a paper on her desk, and I remained standing in the room. She arose from her desk with the Warner note and handed it to me with the mortgage, and Mrs. Robinson handed Ennis Boggs her note for $6,000 as referred to heretofore, which Ennis Boggs handed me with the Warner note and mortgage. As I have stated, the Charley Warner and Minnie Warner note was handed to me by Ennis Boggs with the mortgage covering the same, and Ennis Boggs said she had indorsed $6,000 on the back of the note to Mrs. Robinson; and I noticed that the same had been done when I took the note. I also noticed that statement of interest paid was also indorsed on the back of the note, above the indorsement of Ennis Boggs to Mrs. Robinson; but the writing seemed to be not as fresh as the writing of Ennis Boggs's indorsement. I do not recollect that Ella P. Robinson made any statement whatever, as Ennis Boggs usually transacted the financial business of Mrs. Robinson. * * * Ennis Boggs stated that the $10,000 note was one that she took in the matter of a sale of a farm in Delaware County, Iowa, as part payment, and that she would indorse on said note $6,000 payable to Mrs. Robinson, that she might give me security for the loan I made to her. * * * The Warner note was shown to me first by Ennis Boggs, and I have no recollection of seeing the *Page 1006
same in the possession of Ella P. Robinson at any time."
It is shown without dispute that, in December, 1922, after the death of Ennis Boggs and before the death of Ella P. Robinson, the latter paid, or caused to be paid, her note to Jewell before it was due, and that the Warner note and mortgage were surrendered to Mrs. Robinson, or her brother, who furnished the money to pay her note. At the time of this transaction, the present action had been commenced; and Jewell testified that Mrs. Robinson then stated that, if Harris should win his suit for the remainder of the $10,000 due Ennis Boggs on the Warner note, she (Mrs. Robinson) would be out $6,000 on the transaction. There is no evidence that, prior to this, Mrs. Robinson had ever had possession of the Warner note, or that, prior to the time it was collaterated to Jewell, it had been assigned to her. The transaction at that time was clearly nothing more than an accommodation to Mrs. Robinson by Ennis Boggs; and no relation whatever to the check of $6,000, given some twenty months earlier by Mrs. Robinson to Ennis Boggs, is shown. With the indorsement of the note to Mrs. Robinson and her possession of it thus explained, we think she is shown not to have paid value for it. In the absence of any evidence that the check for $6,000 was in payment for an interest in the note, any other conclusion would be the merest conjecture, and unsupported by the record.
Moreover, in a letter to the bank to which Miss Boggs sent the original Warner notes and mortgage for renewal, as stated, she wrote, on February 4, 1919, in part as follows:
"You will note that the original mortgages in this matter were given to R.M. Merriam, and he in turn assigned the same to R.R. Robinson and myself. This assignment at this time has not been made a matter of record; and the notes secured by same are in Ella P. Robinson, devisee under the will of R.R. Robinson, and myself; and the new loan was taken in my own individual name, as per the agreement with Mrs. Robinson and myself."
This is entirely inconsistent with the claim that Mrs. Robinson acquired an interest of $6,000 in the renewal note of $10,000 on March 3, 1919, by purchase from Ennis Boggs.
Some claim is made in argument for the intervener that *Page 1007
Mrs. Robinson was the owner of the note, or an interest in it, by inheritance or bequest from her husband, whose name appears as an indorsee on the original notes. No such claim is presented in the pleadings, either in the original petition of intervention filed during the lifetime of Ella P. Robinson, or in amendments filed by her, or in a second amendment filed by her executor after his substitution. But, aside from that, it is clearly shown that the original notes for $19,100 belonged to Harris; that they were sent by him to Miss Boggs, to be renewed; and that the indorsement as it now appears on them is fraudulent.
That Miss Boggs dealt fraudulently with those who intrusted their money to her for investment is apparent; and it may be conceded that her relations with Harris were such that she might have transferred the note and mortgage in question to a good-faith purchaser for value, without notice of his rights therein, and that such purchaser's right would have been superior to those of Harris; but we are of the opinion that, upon the whole record, it is shown that Mrs. Robinson did not pay value, and was not, therefore, such a purchaser of the note and mortgage in question. The rule that, where one of two innocent parties must suffer from the fraud of a third party, that one who placed it in the power of such third party to perpetrate the fraud must bear the loss, finds no application to such a situation.
Nor we do perceive any element of estoppel. Harris intrusted his notes and mortgage to his agent for renewal, who took the renewal in her own name. Whether this was with his authority or not, does not appear; but if it was, we think 4. ESTOPPEL: it could not affect the rights of the parties. equitable The agent wrongfully and without authority estoppel: indorsed the note to the extent of $6,000 to agent taking Mrs. Robinson for the latter's accommodation, note in own and without the payment of value therefor. If name. she did not pay value for the note, she is not a good-faith purchaser, and is in no position to claim, by estoppel or otherwise, any rights superior to those of the real and equitable owner of the note and mortgage.
This conclusion renders it unnecessary to consider other questions presented, as between intervener and the defendants Warner. The court, on the plaintiff's claim for judgment *Page 1008
against the Warners for the amount due on the note, held a tender by the latter sufficient; and neither of such parties appealed.
The judgment against the intervener is — Affirmed.
FAVILLE, C.J., and STEVENS and De GRAFF, JJ., concur.
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Lloyd L. Hurdle was engaged in the furniture and undertaking business in the town of Kellogg. On a petition in involuntary bankruptcy, filed January 17, 1924, he was duly 1. BANKRUPTCY: adjudged a bankrupt, and the appellant was preferences: appointed trustee of the bankrupt estate. The "surety" as appellee was a co-maker with Hurdle upon a note creditor. for $7,500, payable to the Burton Co. State Bank. As between herself and Hurdle, appellee was a surety on the *Page 240
note. On January 12, 1924, Hurdle executed and delivered to appellee a bill of sale, upon a stated consideration of $2,300, for three motor vehicles, and gave to her his note for $700. On the same day, appellee, by check on her account at the bank, paid $3,000 on the note held by the bank. This was done in pursuance of an express agreement between appellee and the bankrupt. The appellant trustee seeks to set aside the transfer of the motor vehicles to appellee as a voidable preference, under the provisions of Section 60 (a and b) of the National Bankruptcy Act. That section, so far as material, is as follows;
"a. A person shall be deemed to have given a preference if, being insolvent, he has, within four months before the filing of the petition, * * * made a transfer of any of his property, and the effect of * * * such * * * transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class. * * *
"b. If a bankrupt shall * * * have made a transfer of any of his property, and if, at the time of the transfer, * * * and being within four months before the filing of the petition in bankruptcy * * * the bankrupt be insolvent and the * * * transfer then operate as a preference, and the person receiving it or to be benefited thereby, or his agent acting therein, shall then have reasonable cause to believe that * * * such * * * transfer would effect a preference, it shall be voidable by the trustee and he may recover the property or its value from such person. * * *"
I. Appellee contends that, since she was but an accommodation maker or surety upon the note upon which the payment was made, she was not the creditor of the bankrupt, within the meaning of the above provisions of the Bankruptcy Act, and consequently the transaction was not a voidable preference.
It has been repeatedly held that an accommodation maker, an indorser or surety on the obligation of a bankrupt, is such a creditor as that a payment made by the bankrupt on the debt at his instance, when the bankrupt is insolvent, and within four months of the filing of the petition in bankruptcy, may be a voidable preference to him, and recoverable from him. Swarts v.Siegel, 54 C.C.A. 399 (117 Fed. 13); Kobusch v. Hand, 84 C.C.A. 372 (156 Fed. 660, 18 L.R.A. [N.S.] 660); Paper v. Stern, 117 C.C.A. 346 (198 Fed. 642); Smith v. Coury, 247 *Page 241
Fed. 168; Smith v. Tostevin, 159 C.C.A. 320 (247 Fed. 102);Chapman v. Hunt, 248 Fed. 160; Cohen v. Goldman, 162 C.C.A. 615 (250 Fed. 599); Watchmaker v. Barnes, 170 C.C.A. 583 (259 Fed. 783); Walker v. Wilkinson, 3 Fed. (2d Series) 867. See 2 Collier on Bankruptcy (12th Ed.) 899.
The principle so announced is clearly applicable here. The appellee received a transfer of the property of the bankrupt upon an agreement to pay the agreed value thereof upon a debt of the bankrupt's for which she was liable. When she so received the bankrupt's property, it was the bankrupt's money, to the extent of the value of the property, that she applied on the debt. This was nothing more, in effect, than a payment, to that extent, by the bankrupt upon the debt to the bank at her instance. The bankrupt's estate was diminished by the value of the property transferred. While she was absolutely liable to the bank for the full amount of the debt, neither the bank nor she, after paying the debt, could have received from the bankrupt estate more than the dividend paid in the bankruptcy proceedings. To the extent of the value of the property transferred to her, she received, and was benefited by, a preference over other creditors. This results, not from the fact that she purchased the bankrupt's property for a present consideration, but because she did so upon the express agreement that the consideration going to the bankrupt for the property should be applied on the bankrupt's debt for which she was liable, and it was so applied.
Counsel for appellee relies strongly upon the case of Clarke v.Rogers, 228 U.S. 534 (57 L. Ed. 953). In that case a trustee embezzled trust funds in his hands. Within four months of his bankruptcy, and while insolvent, he made good the amount of the embezzlement out of his private funds. It was held that the claim was provable in bankruptcy, and that the transaction amounted to a voidable preference. No question of the relation of a surety was involved.
In Kobusch v. Hand, supra, the president of a corporation was liable as indorser on its notes, and caused the corporation to pay the notes while insolvent, and within four months of the institution of bankruptcy proceedings against it. The circuit court of appeals for the eighth circuit held that there was a preference for which the president was liable, and the Supreme *Page 242
Court of the United States denied a writ of certiorari. Kobuschv. Hand, 209 U.S. 547 (52 L. Ed. 920).
II. It is hardly necessary to point out that the right here sought to be enforced is purely statutory, and is not controlled by the rules applicable to an action to set aside a conveyance made more than four months before the filing of 2. BANKRUPTCY: a petition in bankruptcy on the ground that it preferences: is in fraud of creditors. The distinction is non-fraudu- well recognized. 7 Corpus Juris 155. The lent intent. requisites to a successful maintenance of the action under the statute are the making of the transfer within four months of the institution of bankruptcy proceedings; the then insolvency of the bankrupt; that the transfer operates as a preference to a creditor; and that the person receiving it or to be benefited by it shall then have reasonable cause to believe that the transfer would effect a preference.
The transfer in question was made within four months of the filing of the petition in bankruptcy. The effect was, as we have seen, to give appellee a preference. It is not seriously contended that Hurdle was not insolvent at the date of the transfer. It is insisted, however, that both he and the appellee were then ignorant of his insolvency, and particularly that the latter, believing him to be solvent, had no reasonable cause to believe that a preference would be effected by the transfer.
It appears from the evidence that Hurdle's business was not prosperous, and that he had for some time been trying to dispose of it. He had employed one Graham to take care of the books, make an invoice of the stock, and sell the business. Graham had not been able to effect a sale. At the time the bill of sale was executed and the arrangement made for the payment to the bank, the parties prepared a statement of Hurdle's financial condition. It is not disputed that the question of his solvency was then under discussion, with particular reference to whether the arrangement could be successfully carried out. The statement so prepared, when properly interpreted, clearly showed Hurdle to be insolvent. Without reciting the evidence in greater detail, we are constrained to say that we are satisfied that both Hurdle and the appellee, or the agent then acting for her, must have known of Hurdle's insolvency, and that the effect of the transfer of the motor vehicles to her and the payment on the *Page 243
note to the bank could not be other than to give her a preference over other creditors.
This being so, the case falls within the terms of the Federal statute, although neither a fraudulent purpose on her part nor a participation in a fraudulent intent on the part of the bankrupt is shown.
The judgment must be and is — Reversed.
EVANS, C.J., and STEVENS and FAVILLE, JJ., concur.
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The grand jury of Polk County, Iowa, indicted the defendant, William Bell, Jr., for the crime of rape, charging that said defendant raped Rita Darlene Flatt, a female child under the age of sixteen years. The defendant entered a plea of not guilty but on trial was convicted and was *Page 768
sentenced to life imprisonment. His motion to set aside the verdict and to grant a new trial because of the insufficiency of the evidence and errors committed during the trial being over ruled, he has appealed to this court.
The defendant urges various errors alleged to have been committed in the lower court which, he claims, require a reversal. We will consider the claimed errors.
[1] I. He urges that the court erred in permitting the jury to pass upon the charge set forth in the indictment, to wit, rape, and claims that the evidence was not sufficient to justify the court in so doing. In order to pass upon this claimed error it will be necessary for us to review the evidence. The crime charged was a revolting one and we can see no useful purpose in setting out its details. As a matter of fact, there is little dispute in the facts save in one particular, i.e., the commission of the acts necessary to constitute the crime of rape. Defendant admits having committed acts which clearly indicate an attempt to consummate the crime of rape but denies having gone to the length of committing the act itself. Summed up, it is the claim of the defendant that there was no penetration of the sexual organs of the prosecuting witness. Contradicting this there was the positive statement of the child that there had been. The defendant admitted the giving and signing of a statement, following his arrest, wherein he admitted that he had committed the completed act. The prosecuting witness was examined by a physician a few days following the claimed offense and was found to be suffering from a gonorrheal infection. A like examination was made of the defendant at about the same time and he was found to be afflicted with the same disease. The proof in both instances was positive. In fact, the defendant admitted that he was afflicted with that disease. There was in the record other evidence tending to show that the crime had been committed and that the defendant was the perpetrator thereof.
Rita Darlene Flatt was a child aged ten years. Defendant was forty-three years old. He knew the girl and on one or two occasions she had helped him in his work as a janitor, polishing and dusting furniture in an apartment house. On a previous *Page 769
day the girl had assisted him in that work and he had paid her a small sum of money. On the day in question they were alone in the room and at that time the alleged act took place. Following the incident it was found that she was bruised and swollen about her private organs and parts of her clothing were soiled and stained. The prosecuting witness complained to her mother, naming the defendant as having raped her.
Other matters were shown in evidence but we think the above sufficient to require the court to submit to the jury the charge lodged against the defendant. We have carefully gone over the entire record and hold that a jury question was presented and that the court did not err in overruling defendant's motion for a directed verdict. We find nothing in the evidence justifying us in interfering with the verdict rendered. State v. Madden,170 Iowa 230, 148 N.W. 995; State v. Glendening, 205 Iowa 1043,218 N.W. 939; State v. Manly, 211 Iowa 1043, 233 N.W. 110; State v. Crandall, 227 Iowa 311, 288 N.W. 85.
[2] II. The defendant urges as error the action of the court in permitting the prosecuting witness to testify, over objections of defendant, that she had made complaints to her mother a few days following the alleged crime and also in permitting the mother to testify to the fact that her daughter had made such complaints. The alleged act was claimed to have been committed on Saturday, May 1, 1943, and the complaints to the mother were made the Friday following. The mother testified, over objection, that her daughter complained to her that on that date she had been raped and that the defendant, "Bill," committed the act. The daughter gave like testimony. The State withdrew all of the evidence as to the details of the act except the fact of the complaint, the nature of the offense, and the identity of the perpetrator. We think that the evidence allowed to remain was permissible and proper.
In the case of State v. Peterson, 110 Iowa 647, 82 N.W. 329, this court held that complaints that the defendant had assaulted and ravished the prosecuting witness might be given by such witness; also that lapse of time in making the complaint is not the sole test of admissibility. Delay in making complaint goes to the weight of such evidence. *Page 770
In the case of State v. Symens, 138 Iowa 113, 115 N.W. 878, this court held that the State could show complaints of a prosecuting witness when made to the person to whom they would naturally be made; and that, while it is not permissible to give details of the complaint, enough may be given to show the nature of the complaints, even though it involves to some extent the particulars thereof. In the above case the lower court permitted the prosecuting witness to testify that she told her mother that the defendant, Peter Symens, had had sexual intercourse with her against her will. Later the mother was permitted to testify that her daughter, the prosecuting witness, told her that Peter Symens had had sexual intercourse with her by force and against her will that night. This evidence was received over objection as calling for conclusion of the witness, incompetent, irrelevant, and immaterial, and hearsay evidence. The court held that there was no error in admitting such testimony. See State v. Barkley,129 Iowa 484, 105 N.W. 506; State v. Egbert, 125 Iowa 443,101 N.W. 191; State v. Powers, 181 Iowa 452, 164 N.W. 856. In State v. Hutchinson, 95 Iowa 566, 64 N.W. 610, it was held proper to show complaints made by the prosecuting witness as to who her assailant was and as to what he did to her. It was proper to show that she named the party and enough of her complaint may be detailed to show what act of the defendant she complained of: that is to say, that what he did was criminal. It has been held that where the prosecutrix is a very young child the rule is not applied with the same strictness as in the case of an adult or of one who has reached such an age as to have an understanding of such matters. State v. Andrews, 130 Iowa 609, 105 N.W. 215; 44 Am. Jur. 952, sections 82-86 inclusive.
In the present case the prosecuting witness was a ten-year-old child. Her story showed nothing incredible. Neither did it have anything in it indicating that it was "trumped up" or false. We hold that the court did not err in permitting evidence to be received concerning such complaints.
[3] III. The defendant urges that the court erred in refusing to sustain defendant's objection to a part of the opening argument of the State, and in particular to the following statement of Mr. Thayer, the assistant county attorney: *Page 771
"I assume that the attorneys in this case wouldn't be satisfied with the proof in this case unless it went to the point that this man had killed this little girl."
Mr. Howard, for defendant:
"I object to that statement as being inflammatory, incompetent, and improper, and ask the Court to admonish counsel to refrain from that line of questioning. I don't know what on earth could have happened to justify it."
The court:
"I don't know. That is a statement of his own opinion as to proof in the case. What he says of course is not going to be taken, under the Court's instructions to this jury already made, what he says, what any of the attorneys in the case say, is not part of the evidence. I think he can draw his conclusions about what he thinks of the evidence, the proof."
Following this the court addressed the jury as follows:
"Ladies and Gentlemen of the Jury: As the Court has already told you, the attorneys make these arguments to tell you what they believe the evidence shows and what they believe the proper conclusions to be drawn are, and as I have heretofore told you, their statements, whether they are telling you what they believe the evidence shows or what they believe the conclusions to be drawn may be, certainly is not to be taken by you as evidence in this case, but only as their opinions and their ideas of the case or the evidence, as they see it. You are to decide this case, as I have told you, and will tell you again in written instructions, on the evidence you hear here in this case and the instructions of the Court, and on nothing else, outside of what the evidence shows, of course, at all times applying the instructions of the Court."
Evidently the court's statement to the jury was intended to advise them that they were to determine the case by the evidence, guided by the court's instructions, and, while the statement by the court was not a direct admonition to the assistant county attorney, yet it could be given that construction. No *Page 772
further complaint was made concerning the statement and no instruction was requested by the defendant upon that point.
Later there arose a further controversy between counsel as to a statement alleged to have been made by Mr. Thayer in argument to the jury, in which he stated to that body that, following the time a copy of the confession, or statement of the defendant, was furnished to his attorneys, he imagined that what Mr. Howard did, after getting a copy of the statement, was to "run right over to the county jail and tell this fellow [defendant], `Wait a minute. You didn't do this.'" In the argument ensuing Mr. Thayer claimed that what he said was in answer to some assertions made in argument on behalf of the defendant as to the unfair practice of an assistant county attorney in interviewing the defendant. Following statements of counsel on both sides as to what had been said in argument and what had brought forth the statement by Mr. Thayer, the court said:
"You go ahead and make your argument. Keep in mind what I have told you, Ladies and Gentlemen of the Jury."
It is elementary that in making an argument to a jury counsel have a right to draw their own conclusions. The court, in referring to the first objection made, evidently felt that that was what Mr. Thayer was doing when he made the claimed objectionable statement. It seems to us that the statement was unnecessary and uncalled for, but, in view of the statement of the court to the jury, we do not think it was so prejudicial as to call for a reversal of the case. We think that the same holds true as to the second complaint as to what happened following the time when Mr. Howard was furnished a copy of the confession and went to the jail to see his client. There was a controversy as to what had been said in argument preceding the statement objected to. The State claimed that the alleged statement was in answer to what counsel for the defendant had stated in prior argument. The arguments in the case were not reported and this court is not able to determine what statements were made, the cause or reason therefor. However, we are unable to see where any prejudice could have resulted from what *Page 773
the assistant county attorney said. Telling the jury what the attorney for the defendant might or might not have said to his client would amount to nothing more than mere speculation, and we question whether such a statement would be given serious consideration by the average juror. In arguments to a jury, counsel are entitled to some latitude in analyzing the evidence, drawing conclusions, and pointing out inferences which they feel may be drawn therefrom. As in various other situations, there is a border line between the proper and the improper.
It is the duty of the trial court to see that the arguments are kept within proper bounds. This duty is highly imperative when a person is on trial charged with a serious offense. A defendant is entitled to the protection of the law and the court should see that his rights therein are not transgressed.
The sentence pronounced upon the defendant was serious — life imprisonment; yet the crime committed was of a most serious nature. The tender age of the prosecuting witness and the communicating to her of a foul and loathsome disease make the case all the more aggravating. The taking advantage of a tender child by a mature person for the purpose of satisfying animal passions calls for the imposition of a severe penalty. The case is affirmed. — Affirmed.
All JUSTICES concur.
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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0348
State of Minnesota,
Respondent,
vs.
Jodi Lynette Lacy,
Appellant.
Filed February 8, 2016
Affirmed
Klaphake, Judge *
Rice County District Court
File No. 66-CR-13-2463
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John L. Fossum, Rice County Attorney, Terence Swihart, Assistant County Attorney,
Faribault, Minnesota (for respondent)
Terry A. Watkins, Watkins Law Office, LLC, Faribault, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Peterson, Judge; and Klaphake,
Judge.
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
KLAPHAKE, Judge
On appeal from her conviction of a fifth-degree controlled substance crime
following a stipulated-evidence court trial, appellant Jodi Lynette Lacy challenges the
district court’s order denying her suppression motion. Lacy argues that the seizure of a
baggie containing methamphetamine from her pocket was an impermissible extension of a
Terry search and that she was subjected to an unlawful custodial interrogation. Because
the seizure of the baggie was lawful as a search incident to arrest and because Lacy was
not subjected to a custodial interrogation, we affirm.
DECISION
“When reviewing a district court’s pretrial order on a motion to suppress evidence,
we review the district court’s factual findings under a clearly erroneous standard and the
district court’s legal determinations de novo.” State v. Gauster, 752 N.W.2d 496, 502
(Minn. 2008) (quotation omitted). When the facts are undisputed, “our review is entirely
de novo.” State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005).
The federal and state constitutions prohibit unreasonable searches and seizures by
the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Warrantless searches
are generally unreasonable unless they are covered under an exception to the warrant
requirement. State v. Lemert, 843 N.W.2d 227, 230 (Minn. 2014). The United States
Supreme Court recognized one of these exceptions when it held that “a law-enforcement
officer may conduct a protective pat search of a person’s outer clothing so long as the
officer has a reasonable, articulable suspicion that the person whom the officer has lawfully
2
detained may be armed and dangerous.” Id. (citing Terry v. Ohio, 392 U.S. 1, 26-27,
88 S. Ct. 1868, 1882-83 (1968)). The Supreme Court has also held that “a warrant to search
for contraband founded on probable cause implicitly carries with it the limited authority to
detain the occupants of the premises while a proper search is conducted.” Michigan v.
Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 2595 (1981) (footnote omitted).
Here, officers were executing a warrant to search for narcotics at the home of
Michael Dulac. Officers observed Lacy “working on the dead bolt lock at the front door
threshold” when they arrived to execute the search warrant. Because Lacy was on the
premises when officers were executing a warrant to search for contraband, it was lawful
for the officers to detain Lacy.
The officers could conduct a protective pat search of Lacy if they had reasonable,
articulable suspicion that she was armed and dangerous. Lemert, 843 N.W.2d at 230. Lacy
was discovered in the process of opening Dulac’s front door. Officers knew that Dulac
had a history of assault and that he both “always” carried a knife and that he had
“many knives and swords . . . hanging on his walls inside his house.” A large knife was
hanging from Dulac’s hip when he was searched. The Minnesota Supreme Court has noted
that “a substantial nexus exists between drug dealing and violence.” Id. at 232. Because
of Lacy’s connection to Dulac and the presence of weapons on the premises, officers had
a reasonable suspicion that Lacy could be armed and dangerous. Although Lacy was
placed in handcuffs, a protective pat search was lawful during her detention. Lemert, 843
N.W.2d at 230.
3
As Officer Catherine Spicer began the pat down, Lacy said that she had a baggie in
her front pocket that was not hers and that she was going to dispose of the baggie for
Michael. This statement gave Officer Spicer probable cause to arrest Lacy. Normally, a
“protective pat search must be strictly limited to that which is necessary for the discovery
of weapons which might be used to harm the officer or others nearby.” Id. at 230
(quotations omitted). But “police who have probable cause to arrest a suspect can then
conduct a search incident to arrest even if the search occurs before the arrest.” In re Welfare
of G.M., 560 N.W.2d 687, 695 (Minn. 1997). “A search incident to arrest can extend to
small containers on the person and can be followed by a warrantless seizure of discovered
contraband.” Id. “[P]robable cause to arrest requires police to have a reasonable belief
that a certain person has committed a crime.” Id.
Officer Spicer was executing a search warrant for narcotics at Dulac’s residence and
was aware that Dulac had been involved in multiple narcotics offenses. On these facts,
once Lacy made the statement about possessing a baggie for Dulac, Officer Spicer had
probable cause to believe that the baggie contained narcotics. Because Officer Spicer had
probable cause to arrest Lacy after Lacy’s statement, the later seizure of the baggie was
lawful as a search incident to arrest.
Lacy also argues that her statement to Officer Spicer about the baggie should be
suppressed because she was subjected to a custodial interrogation without first being given
a Miranda warning. “Statements made by a suspect during a ‘custodial interrogation’ are
admissible only if the statement was preceded by a Miranda warning.” State v. Thompson,
788 N.W.2d 485, 491 (Minn. 2010) (citing Miranda v. Arizona, 384 U.S. 436, 444-45,
4
86 S. Ct. 1602, 1612 (1966)). To require a Miranda warning, a suspect must be both in
custody and subject to interrogation. Id. “An interrogation is custodial if, based on all the
surrounding circumstances, a reasonable person under the circumstances would believe
that he or she was in police custody of the degree associated with formal arrest.” Id.
(quotation omitted). Factors that may indicate a suspect is in custody include “police
interviewing the suspect at the police station; the officer telling the individual that he or
she is the prime suspect; officers restraining the suspect’s freedom; the suspect making a
significantly incriminating statement; the presence of multiple officers . . .; and a gun
pointing at the suspect.” Id. (quotation omitted). The Minnesota Supreme Court has held
that “briefly handcuffing a suspect while the police sort out the scene of an investigation
does not per se transform an investigatory detention into an arrest.” State v. Munson, 594
N.W.2d 128, 137 (Minn. 1999).
Here, police handcuffed Lacy to detain her for officer safety, but that form of
detention was not conclusive as to whether she was in police custody for purposes of
Miranda. Officer Spicer told Lacy that she would be performing a pat down and that Lacy
was being detained, but she never told Lacy that she was under arrest and did not conduct
a full search of Lacy until after Lacy’s formal arrest. In addition, Officer Spicer alone
conducted the pat down and never pointed her gun at Lacy, and the encounter did not take
place at a police station. Under the totality of these circumstances, Lacy was not in custody
when she admitted to possessing the baggie.
Further, Lacy was not subjected to interrogation. “Miranda safeguards apply
whenever a person is subjected to either express questioning or its functional equivalent.”
5
State v. Edrozo, 578 N.W.2d 719, 724 (Minn. 1998) (quotation omitted). The functional
equivalent of express questioning means “any words or actions on the part of the police
(other than those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.” Id. (quotation
omitted).
Officer Spicer testified that she never asked Lacy any questions before conducting
the pat down, and the pat down itself is not an action that would elicit any sort of
incriminating statement. Lacy’s statement about the baggie was therefore “a spontaneous,
volunteered statement not made in response to ‘interrogation.’” See State v. Hale,
453 N.W.2d 704, 707 (Minn. 1990). Because Lacy was not subjected to a custodial
interrogation, Officer Spicer was not required to give Lacy a Miranda warning.
Affirmed.
6
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06-09-2016
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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1061
In re the Estate of: Bernice R. Murray
aka Bernice Murray, Deceased
Filed March 7, 2016
Affirmed
Ross, Judge
Nicollet County District Court
File No. 52-PR-12-334
Douglas B. Altman, Darron C. Knutson, Altman & Izek, Minneapolis, Minnesota (for
appellant)
Rodney J. Mason, Kimberly A. Mason, St. Paul, Minnesota (for respondents Chase and
Erin Jonason)
Barbara P. Berens, Carrie L. Zochert, Erin K. F. Lisle, Berens & Miller, P.A., Minneapolis,
Minnesota (for respondent Leland Jonason)
Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and
Larkin, Judge.
UNPUBLISHED OPINION
ROSS, Judge
This appeal concerns Michael Pint’s attempt to collect on a Hennepin County
judgment that he secured against his former business partner, Leland Jonason, by attaching
property that Jonason’s mother bequeathed to him but that Jonason disclaimed in a Nicollet
County probate proceeding. Pint personally guaranteed a line of credit that Jonason
obtained to fund their joint business venture. Jonason defaulted on the resulting loan and
Pint paid the lender the default amount. The lender assigned its rights to Pint, and Pint
obtained a corresponding judgment against Jonason. Jonason’s mother bequeathed
property to Jonason, but Jonason disclaimed the inheritance, preventing Pint from attaching
it to satisfy the judgment. The Nicollet County District Court denied Pint’s motion to
invalidate Jonason’s disclaimer, rejecting Pint’s argument that res judicata and the
Hennepin County judgment required it to grant the motion. We hold that res judicata did
not obligate the district court to reject Jonason’s argument that the guaranty’s broad waiver-
of-claims provision prevents Pint, acting as guarantor, from asserting a claim against
Jonason. And we hold that the district court correctly interpreted the waiver to determine
that Pint could not, as guarantor, assert a disclaimer-invalidating claim against Jonason.
We do not address Pint’s tardy argument that the waiver provision applies to him only as
guarantor but not as assignee, because Pint did not make the argument in the district court
and he mentions it for the first time in his reply brief on appeal. We therefore affirm.
FACTS
Michael Pint and Leland Jonason were partners in a mobile-home park business
venture. Pint primarily funded the company and Jonason primarily managed it. Short on
operational funds in October 2009, Jonason obtained a line of credit from Central Bank to
finance the park’s daily expenses, and Pint personally guaranteed the loan. The consequent
promissory note grew to $322,200 and came due in October 2012. Jonason failed to pay.
Pint paid Central Bank the $322,200 obligation pursuant to his guaranty, and the bank
assigned him its rights under the note.
2
Pint then sought recovery from Jonason in the district court in two counties—
Hennepin (the contract action) and Nicollet (the probate action). Pint sued Jonason in
Hennepin County District Court based on contract principles, seeking to collect on the
assigned promissory note that Pint purchased from Central Bank. The district court granted
Pint’s motion for summary judgment against Jonason in the amount of the note plus interest
and attorney’s fees, totaling $362,435.15. Jonason’s mother, Bernice Murray, died testate,
leaving Jonason half the residue of her estate, including Nicollet County real property.
Jonason executed and filed with the district court in Nicollet County a disclaimer of his
interest in the Nicollet County property. Murray’s will redirected the disclaimed property
to Chase and Erin Jonason, Leland Jonason’s children.
Pint moved the district court in Nicollet County to vacate Jonason’s disclaimer in
the probate proceeding of Murray’s estate. He maintained that the disclaimer was void
under Minnesota Statutes section 524.2-1106(b)(4) (2014) because Leland Jonason was
insolvent. Chase and Erin Jonason responded that Pint did not have standing to vacate the
disclaimer and asserted other defenses. Leland Jonason also responded to Pint’s motion,
asserting that he was solvent at the relevant time and that, in any event, Pint’s guaranty
expressly waived any right to any claim against him based on the Central Bank note. At
the motion hearing, Pint’s counsel argued that res judicata barred Leland Jonason’s waiver
argument due to the Hennepin County judgment on the Central Bank note.
The Nicollet County District Court denied Pint’s motion to vacate the disclaimer. It
first held that Pint had standing to challenge the disclaimer. But it determined that Pint’s
claim was barred by a waiver provision in Pint’s guaranty in which Pint agreed as follows:
3
“I [Pint] also waive and relinquish all present and future claims, rights, and remedies
against borrower [Leland Jonason] or any other obligated party arising out of the creation
or my performance of this guaranty.” The district court refused to hold that the doctrine of
res judicata entitled Pint to a favorable determination based on the Hennepin County
District Court’s judgment. Pint appeals the Nicollet County order on the issues of res
judicata and its interpretation of the guaranty waiver. Chase and Erin Jonason have filed a
notice of related appeal challenging the district court’s determination that Pint has standing
to challenge the disclaimer’s validity.
DECISION
I
We first address Chase and Erin Jonason’s challenge to the district court’s holding
that Pint has standing to contest the disclaimer in the probate proceeding. Because the facts
relevant to standing are undisputed, we review the district court’s standing determination
de novo, as a question of law. Olson v. State, 742 N.W.2d 681, 684 (Minn. App. 2007). A
party’s standing can rest on either of two circumstances: the plaintiff has suffered an injury-
in-fact or a statute confers standing. State by Humphrey v. Philip Morris Inc., 551 N.W.2d
490, 493 (Minn. 1996).
The district court determined that Pint has statutory standing as an “interested
person” under Minnesota Statutes section 525.31 (2014) and can contest the disclaimer
based on our decision in In re Estate of Pawlik, 845 N.W.2d 249, 250 (Minn. App. 2014),
review denied (Minn. June 25, 2014). We agree that Pint has standing as an “interested
person,” but under a different provision, specifically, section 524.3-105 (2014).
4
This case is dissimilar to Pawlik, where we determined that an heir’s judgment
creditor had standing to petition the district court to declare that the decedent died intestate
and to apportion the estate to the heirs under Minnesota Statutes section 525.31. 845
N.W.2d at 254. That section declares that, when an intestate decedent has been dead for
three years, “any interested person” may petition the court to determine the descent of the
decedent’s property. Minn. Stat. § 525.31. In Pawlik, we relied on the probate code’s
general definition of “interested person” to include “heirs, devisees, children, spouses,
creditors, beneficiaries and any others having a property right in or claim against the estate
of a decedent, ward or protected person which may be affected by the proceeding.” Minn.
Stat. § 524.1-201(32) (2014). The definition adds, “The meaning as it relates to particular
persons may vary from time to time and must be determined according to the particular
purposes of, and matter involved in, any proceeding.” Id. We held that because the
petitioner’s judgment could be satisfied by the decedent’s property if inherited by the heir,
the petitioner was a “creditor or . . . other person having a property right in the decedent’s
estate.” Pawlik, 845 N.W.2d at 254.
Here, unlike in Pawlik, it is undisputed that the decedent died testate, so our
reasoning in Pawlik does not control. Pint’s motion to vacate Jonason’s disclaimer rests
instead on statutory provisions codifying the Uniform Disclaimer of Property Interests Act,
which nowhere refers to “any interested person” or suggests who may challenge a
disclaimer. See Minn. Stat. §§ 524.2-1101–1116 (2014).
But Minnesota’s probate code offers wider ground on which Pint can establish
standing as an “interested person.” Particularly, section 524.3-105 provides that “[a]ny
5
interested person in a decedent’s estate . . . may petition the court for orders in formal
proceedings within the court’s jurisdiction including but not limited to those described in
this article.” Pint filed his petition in the district court in Nicollet County where Murray’s
will was “in formal proceedings,” and Pint is an “interested person” as a judgment creditor
of an heir named in that will based on “the particular purposes of, and matter involved in,
[the] proceeding.” Minn. Stat. § 524.1-201(32). Similar to the petitioner in Pawlik, if Pint
prevails on his motion to vacate the disclaimer, he may be able to satisfy his judgment
using Jonason’s interest in the inherited property. See Pawlik, 845 N.W.2d at 254. We hold
that Pint is an “interested person” under section 524.3-105 and can petition the district court
in Murray’s probate proceeding. We affirm the district court’s holding that Pint has
standing to challenge Jonason’s disclaimer.
II
Pint relies on his judgment in the Hennepin County lawsuit and maintains that the
district court in Nicollet County was precluded by res judicata from considering whether
the waiver-of-all-claims provision in the guaranty bars him from challenging Jonason’s
disclaimer in the probate proceeding. We review de novo whether res judicata is available
for the district court to apply. Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (Minn.
2004).
We clarify Pint’s res judicata claim as it concerns the related doctrine of collateral
estoppel. The terms res judicata (commonly referred to as claim preclusion) and collateral
estoppel (commonly referred to as issue preclusion) are sometimes used interchangeably,
but the doctrines are distinct. Id. at 837. Res judicata prevents parties from relitigating
6
claims resolved in a final adjudication, even if the later litigation raises new legal theories.
Id. By contrast, collateral estoppel prevents the litigation of specific legal issues that have
been formerly adjudicated. Id. A party can rely on res judicata in a later claim only if the
later claim involves the “same set of factual circumstances” as the previously adjudicated
claim, see id. at 840, while a party can rely on collateral estoppel only when the specific
issue was resolved in the prior adjudication, see id. at 837. Although collateral estoppel
potentially applies to more circumstances than res judicata, collateral estoppel requires that
the estopped party had a “full and fair opportunity to be heard on the adjudicated issue.”
Id. Res judicata, which tends to apply in fewer circumstances, more broadly prevents
litigating issues that either were litigated or that could have been litigated. See id. at 840.
The distinction is relevant here, because Pint does not assert collateral estoppel. He
expressly raises only res judicata, maintaining that the district court in Nicollet County was
bound to disregard any waiver assertion because the district court in Hennepin County had
already entered judgment on Pint’s damages claim. We therefore will limit our analysis to
the doctrine of res judicata.
A four-part test determines whether res judicata is available. Res judicata bars a
subsequent claim when “(1) the earlier claim involved the same set of factual
circumstances; (2) the earlier claim involved the same parties or their privies; (3) there was
a final judgment on the merits; [and] (4) the estopped party had a full and fair opportunity
to litigate the matter.” Id. All four elements must be established for res judicata to apply.
Id.
7
We agree with the district court that res judicata does not apply here. Pint’s res
judicata claim fails under the first element. The Hennepin County action involving
Jonason’s indebtedness to Pint for his payment of the Central Bank note involves different
factual circumstances from Pint’s motion challenging the validity of Jonason’s disclaimer.
Each of the claims (that Pint is entitled to judgment for paying Jonason’s defaulted loan
and that Jonason is entitled to disclaim his bequeathed property) requires evidence that
differs from the other.
Pint’s Hennepin County contract claim and his Nicollet County motion to vacate
Jonason’s disclaimer would depend on some of the same evidence, but the factual
similarities are insufficient for us to say that the claims are the same or that they constitute
the same cause of action. The district court in the contract case entered judgment based on
the facts that Jonason failed to pay the Central Bank loan as required by the terms of his
line of credit and that Pint made the payment and was assigned the bank’s rights on the
note. By contrast, to invalidate Jonason’s disclaimer in the probate case, Pint would need
to produce evidence that Jonason is indebted to Pint and that Jonason was insolvent when
his waiver became irrevocable. See Minn. Stat. § 524.2-1106(b)(4). Determining
insolvency requires evidence about Jonason’s assets and liabilities, see Minn. Stat. § 524.2-
1102(9), and this evidence is irrelevant to the Hennepin County contract claim. The two
claims also arose at different times. This is significant because we will not hold that claims
arise from the same cause of action if “the right to assert the second claim did not arise at
the same time as the right to assert the first claim.” Care Inst., Inc.-Roseville v. County of
Ramsey, 612 N.W.2d 443, 447 (Minn. 2000). The Hennepin County action arose when Pint
8
paid the balance and was immediately assigned the bank’s rights in October 2012, three
months before Jonason disclaimed his interest in the Nicollet County property.
Because the Hennepin County action and the current action to vacate the disclaimer
are not the same claim or cause of action, the first element of res judicata is not met. This
alone prevents res judicata from barring Jonason from asserting his waiver-clause
argument. We therefore hold that the doctrine does not bar the district court’s analysis of
the guaranty waiver clause. We do not address any possible application of collateral
estoppel because Pint did not raise the issue on appeal and the district court did not consider
it. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
III
We turn to the effect of the disputed waiver provision. The guaranty that Pint signed
so that Jonason could obtain the line of credit from Central Bank contained a broad waiver
provision, stating that the guarantor (Pint) relinquished all claims against the borrower
(Jonason). The district court reasoned from the waiver’s plain language that Pint agreed to
forego any possible claim against Jonason for payment of the loan, precluding Pint from
collecting from Jonason. We review the district court’s interpretation of a contract de novo.
Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267, 271 (Minn. 2004). We discern
the parties’ intent from the plain language of the contract. Id. If a provision is “clear and
unambiguous,” we will avoid rewriting, modifying, or limiting its effect. Id. We construe
guaranties the same way we construe other contracts. Geneva JPM 2003-PM1, LLC v.
Geneva FSCX I, LLC, 843 N.W.2d 263, 266 (Minn. App. 2014).
9
Pint’s guaranty carries the following definitions: “I” includes the guarantor, and the
document identifies Pint as guarantor; “You” means the lender, its successors and
assignees, and the document identifies Central Bank as the lender; and “Borrower” refers
to Leland Jonason. The guaranty contains a waiver provision spanning two paragraphs.
The first paragraph appears to refer to waiving rights that might be held against the bank.
The disputed interpretation arises from the second paragraph:
I [Pint] also waive and relinquish all present and future claims,
rights, and remedies against borrower [Leland Jonason] or any
other obligated party arising out of the creation or my
performance of this guaranty. My waiver includes, but is not
limited to, the right of contribution, reimbursement,
indemnification, subrogation, exoneration, and any right to
participate in any claim or remedy you may have against the
borrower, collateral, or other party obligated for borrower’s
debts, whether or not not [sic] such claim; remedy, or right
arises in equity or under contract, statute or common law.
We affirm the district court’s decision that the waiver’s plain language demonstrates
Pint’s intent to waive any present or future claims against Jonason arising from Pint’s
performance of the guaranty. The waiver is broad and clear.
We reject Pint’s argument that the waiver reflects the intent merely to prevent Pint
from interfering with Central Bank’s efforts to collect directly from the borrower. Pint
points to the second paragraph’s second sentence, and he emphasizes that it lists several
possible causes of action including “any right to participate in any claim or remedy you
[Central Bank] may have against the borrower.” Pint maintains that by referring
specifically to Central Bank’s rights, the phrase limits the entire provision so as to prevent
only Pint’s interfering with Central Bank’s claims against Jonason. The argument has at
10
least three flaws. First, it ignores the fact that the identified, purportedly limiting phrase is
part of a list that begins, “includes, but is not limited to.” Second, it overlooks the
organization of the list, the first part of which concerns Pint’s individual “right of” several
identified methods of recovery, and then adds also, “and any right to” share in any of the
bank’s methods of recovery. This separate grouping of the two classes of recovery methods
(those implicitly belonging to Pint directly and those belonging to the bank indirectly)
belies Pint’s argument that there is only a single class. And third, the brief reference to
interference with the Central Bank’s claims does not expressly or impliedly modify the
prior sweeping sentence—“I also waive and relinquish all present and future claims, rights,
and remedies against borrower or any other obligated party arising out of the creation or
my performance of this guaranty.”
We also are not convinced by Pint’s next argument that, because Jonason was not
an intended beneficiary of the guaranty, he cannot enforce the waiver provision in his
defense. Minnesota has adopted the Restatement (Second) of Contracts section 302 (1979),
which provides in relevant part as follows:
(1) Unless otherwise agreed between promisor and promisee,
a beneficiary of a promise is an intended beneficiary if
recognition of a right to performance in the beneficiary is
appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an
obligation of the promisee to pay money to the
beneficiary; or
(b) the circumstances indicate that the promisee
intends to give the beneficiary the benefit of the
promised performance.
11
See Cretex Cos. v. Constr. Leaders, Inc., 342 N.W.2d 135, 139 (Minn. 1984). “Under this
approach, if recognition of third-party beneficiary rights is ‘appropriate’ and either the duty
owed or the intent to benefit test is met, the third party can recover as an ‘intended
beneficiary.’” Id.
The guaranty is clearly intended to benefit Jonason. If the intent to benefit a third
party exists, it must be found in the contract “as read in light of all the surrounding
circumstances.” Buchman Plumbing Co. v. Regents of the Univ. of Minn., 298 Minn. 328,
334, 215 N.W.2d 479, 483 (1974). A nonparty may be an intended beneficiary even if the
contract requires performance to the beneficiary only indirectly. Hickman v. SAFECO Ins.
Co. of Am., 695 N.W.2d 365, 370 n.8 (Minn. 2005). The first provision of the guaranty
states, “For good and valuable consideration . . . to induce you, at your option, to make
loans or engage in any other transactions with borrower from time to time, I absolutely and
unconditionally guarantee the full payment of the following debts . . . .” This language
reflects the intent to benefit Jonason by inducing Central Bank “to make loans or engage
in any other transactions with borrower from time to time.” The surrounding circumstances
inform us that the guaranty was necessary for Jonason to secure the line of credit that he
sought to cover the business’s operating expenses. The clear intent was to benefit the
borrower.
Finally, Pint argues that the district court’s interpretation of the waiver as precluding
him from all recovery against Jonason leads to an absurd result. He essentially maintains
that the result is unfair; he paid Jonason’s debt and the district court would leave him with
no recovery. This argument on equitable grounds does not dissuade us from our legal
12
holding for three reasons. First, we will construe and apply a contract by its plain terms
“even if the result is harsh.” Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 346–47
(Minn. 2003). Second, the district court deciding the probate matter did not determine that
Pint cannot recover on his previous judgment; that issue was not before it. Its holding
merely determined that Pint’s stated arguments do not provide any basis to invalidate
Jonason’s disclaimer of his inheritance. And third, the argument misses the fact that the
guaranty’s waiver provision applies only to Pint as guarantor; it does not on its face
prevent Pint from recovering as assignee, having stepped into the bank’s shoes and having
acquired the bank’s collection rights by assignment. Pint seems to recognize this, raising
the argument as a ground for reversal in his reply brief and at oral argument. If the position
has merit (as it seems to), it defeats Pint’s argument that the district court’s decision leads
to an unfair or absurd result. We of course will not decide the argument or rely on it to
reverse the district court’s waiver holding, because Pint never made the argument in the
district court. See Thiele, 425 N.W.2d at 582. And even if he had, because he failed to raise
the issue in his initial brief on appeal, he denied the respondents the ability to respond to
the argument, and we treat it as waived. See McIntire v. State, 458 N.W.2d 714, 717 n.2
(Minn. App. 1990), review denied (Minn. Sept. 28, 1990).
Because we hold that the district court properly decided that Pint (as guarantor)
waived all recourse from Jonason under the plain language of the guaranty waiver
provision (and because Pint failed to argue that the guaranty does not limit his right to
pursue a claim as assignee), we need not reach Pint’s challenge to the district court’s
determination about the need for an evidentiary hearing on whether Jonason was insolvent
13
at the relevant time. We also need not address Chase and Erin Jonason’s unclean-hands
argument.
Affirmed.
14
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Francis Taylor died testate on March 30, 1927, the material part of his will being as follows:
(1) Directs the payment of all just debts, funeral expenses and costs of administration.
(2) "To my beloved wife, Elizabeth A. Taylor, I hereby devise, give and bequeath all of my property, both real and personal which I may own or be entitled to at my decease.
(3) "I make the above bequest knowing that my beloved wife, Elizabeth A. Taylor, will see that all the property both *Page 955
real and personal which she may own at the time of her decease shall go to my beloved sons and daughters.
(4) "It is my wish that whenever a certain real estate mortgage of $15,000 now owned by me has been paid to my beloved wife hereinbefore named that she divide the amount among my beloved sons and daughters share and share alike. Names of my beloved sons and daughters are [here follow the names of three sons and five daughters]."
In the administration of this estate, the executor filed a final report, in which he made reference to the fact that he had collected this $15,000 mortgage.
The Cargill Commission Company obtained a judgment against William and Frank Taylor, both sons of the deceased, Francis Taylor, and named in his will, in the sum of $2,457.09, with interest and costs. Henry Giebink, as receiver of the Northwestern Bank of Ireton, obtained judgment against William Taylor and Phoebe Taylor, his wife, in the sum of $9,160.47, with interest and costs. Executions were issued on these judgments, and the administrator and surviving widow were garnished as to the shares of William and Frank Taylor. The Cargill Commission Company and the receiver filed objections to the final report of the executor herein, and insist that William and Frank Taylor are entitled to share in the proceeds of the $15,000 mortgage above referred to. This gives rise to the only question in the case, to wit: Did these two sons have any interest in the proceeds of said mortgage, under the terms of the said will of Francis Taylor?
It is their contention that, under the terms of this will, a trust was created in the hands of Elizabeth A. Taylor of the proceeds of this $15,000 mortgage, and that thereunder, the proceeds of said mortgage were to be divided, share and share alike, among the sons and daughters of Francis Taylor.
By referring to the second section of the will, it will be noted that Elizabeth A. Taylor had complete title to all of the property of the deceased. Section 3 is simply an expression of confidence that the wife will do certain things with her property. Section 4 is the one about which the conflict rages. The testator therein expresses a "wish" that, when the $15,000 mortgage is paid to the wife, she divide the proceeds thereof among the children, share and share alike. Does this create a trust, or is it *Page 956
simply a wish on the part of the deceased, that is binding on no one? What the intention of the testator was, is the question for solution.
The use of the word "wish" has been many times before the courts, and in many instances has been held to create a trust, and in an equal or larger number of instances, has been held not to create a trust. Whether it does or does not create a trust depends wholly upon its setting in and the context of the will.
In the following cases it is held to create a trust: Phillipsv. Phillips, 112 N.Y. 197 (19 N.E. 411, 8 Am. St. 737); Strout v.Strout, 117 Me. 357 (104 A. 577); Brasher v. Marsh, 15 Ohio St. 103; Meehan v. Brennan, 16 A.D. 395 (45 N.Y. Supp. 57, 58);Estate of Gaston, 188 Pa. St. 374 (41 A. 529); Phebe v.Quillin, 21 Ark. 490; Taylor v. Martin (Pa.), 8 A. 920; Barneyv. Hayes, 11 Mont. 571 (29 P. 282); Reed's Admr. v. Reed,30 Ind. 313; Trustees of Pembroke Academy v. Epsom Sch. Dist.,75 N.H. 408 (75 A. 100); Rothschild v. Schiff, 188 N.Y. 327
(80 N.E. 1030); Busby v. Lynn, 37 Tex. 146; Swarthout v. Swarthout,111 Wis. 102 (86 N.W. 558); Cook v. Ellington, 59 N.C. 371.
In the following cases it is held not to create a trust:Colonial Trust Co. v. Brown, 105 Conn. 261 (135 A. 555); Holmesv. Dalley, 192 Mass. 451 (78 N.E. 513); Russell v. United StatesTr. Co., 127 Fed. 445; Russell v. United States Tr. Co., 69 C.C.A. 410, 136 Fed. 758; Bliven v. Seymour, 88 N.Y. 469; Mannersv. Philadelphia Library Co., 93 Pa. St. 165 (39 Am. Rep. 741);O'Brien v. McCarthy, 285 Fed. 917; Bliss v. Bliss, 20 Idaho 467 (119 P. 451); Haight v. Royce, 274 Ill. 162 (113 N.E. 71);Succession of Hudson, 19 La. Ann. 79; Taylor v. Brown, 88 Me. 56
(33 A. 664); Nunn v. O'Brien, 83 Md. 198 (34 A. 244); Clarkv. Clark, 99 Md. 356 (58 A. 24); Sears v. Cunningham,122 Mass. 538; Hoxsey v. Hoxsey, 37 N.J. Eq. 21; First Presbyterian Churchv. McKallor, 35 A.D. 98 (54 N.Y. Supp. 740); Chew v. Chew,
266 Pa. St. 526 (109 A. 799); Van Amee v. Jackson Ketcham,35 Vt. 173; Conlin v. Sowards, 129 Wis. 320 (109 N.W. 91).
A review of these cases leads to the suggestion first above made, that whether or not the word "wish" is to be construed as creating a trust depends wholly upon its place in the will and its relation to the context thereof. *Page 957
Generally speaking, a wish is a wish, and nothing more, unless the testator used it in such a way as to indicate a different intention. The whole context of this will shows that this mortgage was to pass to the wife. She took complete title thereto, under the second paragraph of the will, and the fourth paragraph recognized that she was to receive the same. In other words, there was no thought in the mind of the testator that the executor should have anything to do with this mortgage. The wife was to have the mortgage, and when it was due, she was to receive the proceeds thereof. This much is certain.
The testator, by Clause 4 of the will, expresses a "wish" that, after the wife has received the proceeds thereof, she shall distribute such proceeds, share and share alike, among the children. Does this indicate that the intention of the testator was that she should receive said mortgage and hold the same, and that, when the same was cashed, she was then bound to divide the proceeds among these eight children? We do not think that this was his intention. The second paragraph shows, without doubt, that he intended her to have all of the property. The third paragraph is simply an expression of confidence in the fairness of the wife, and in pursuance thereof, he "wishes" that she would distribute the proceeds of this mortgage, when she received it, in cash among these children. We have had something of a similar question before us in the past history of this court, but the only case that squarely touches the question of the use of the word "wish" is Bradford v. Martin, 199 Iowa 250. We there said:
"We deem the use of the word `wish' in these bequests purely precatory; but if not so, it creates a repugnance, as against the clause giving a fee-simple title to the wife, and therefore is void."
We have the same situation in the present case as existed in the Bradford case. If the fourth section of the will in the instant case should be held to create a trust estate, it would be repugnant to the second section of the will, which gave to the wife complete title to all of the property of the deceased. It must follow, therefore, that, under the terms of this will, the children had nothing, and the wife took complete title to all of *Page 958
the property of which Francis Taylor died possessed. This is the same conclusion reached by the district court. — Affirmed.
MORLING, C.J., and STEVENS, De GRAFF, and WAGNER, JJ., concur.
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This is a suit in equity by two daughters of Mary E. Barnevelt, deceased, to set aside a deed from her as grantor to a third daughter as grantee, which deed provided that it was given in consideration of "the agreement of the grantee herein to give the proper care and attention to the grantor during the term of her natural life . . ."
Plaintiffs claimed the defendant breached the covenant of the deed in that she failed to give the proper care and attention to her mother and that she left Iowa and established a residence in Seattle, Washington, with the declared intention of never returning to care for or attend her mother. That she did not return during the mother's lifetime and the consideration for the deed had failed. The administrator of the mother's estate intervened and claimed the property to pay the debts of the estate.
The defense was a general denial and admitted that plaintiffs and defendant were all the children and only heirs of Mary E. Barnevelt, who died intestate on November 7, 1940. A great deal of evidence was offered and the trial court entered a decree dismissing the petition and held that there had been no such substantial breach of the agreement as to warrant setting aside the deed. The plaintiffs have appealed.
Mary E. Barnevelt, a widow, was the owner of a lot and a half in Madrid, Iowa, upon which three houses were situated, which property was devised to her by her husband. She lived in one of the houses and rented the others. She had three children, Ada Snider and Nora Hoop, the appellants, and Rena Godfrey, the appellee.
In February 1940, Rena Godfrey was living in Des Moines. *Page 3
In that month she went to Madrid to make her home with her mother. On April 13, 1940, Mrs. Barnevelt executed the deed in question and delivered it to Mrs. Godfrey. It contained the following provision:
"It is understood and agreed that part of the other valuable considerations above mentioned is the agreement of the grantee herein to give the proper care and attention to the grantor during the term of her natural life and the further agreement that grantee will join with grantor in a mortgage or deed should it become necessary to either mortgage or sell any of said described real estate for the support and care of said grantor."
There is no question raised in regard to the manner in which the deed was executed. It was prepared by Mr. C.J. Cederquist, an attorney, and was explained carefully to the parties. Following the delivery of the deed, Mrs. Godfrey continued to live with her mother until about September 17, 1940, when she left Madrid and went to Seattle, Washington. During the period that the appellee lived with her mother, there is evidence that there was friction between them although the record clearly shows there was a feeling of genuine affection between the mother and daughter. Mrs. Barnevelt was 79 years of age and had not been well for some time. Before Mrs. Godfrey left her mother, she talked with Mr. Cederquist, the attorney who prepared the deed, and at the trial he testified that he told her at that time "she couldn't or shouldn't leave her mother; she had this contract she was to take care of her." It is Mrs. Godfrey's contention that she left her mother because it was impossible for her to live with her and that the trip west was simply a temporary one.
The appellants argue that there was no reason for her leaving her mother, and that at the time she left she said she would not return and that she established a residence in Seattle.
It is a peculiar record that confronts us. There is no dispute in regard to the law. In fact, both parties rely on the same cases. In the appellee's brief we find this statement:
"This is an action in equity and is for the trial de novo in this court with the burden of proof upon the appellants. We *Page 4
have no quarrel as to the rules of law that govern cases of this kind, and strange as it may seem, we cite as our authorities the same cases upon which the appellants rely. They announce the principle that to set aside a deed for a failure of consideration where there is an agreement to provide future care and support, the evidence must show a substantial breach of the agreement."
In the very recent case of Timberman v. Timberman, 229 Iowa 835, 841, 295 N.W. 158, 160, this court said:
"In this case, there is no claim of fraud, incompetency or undue influence. Plaintiff's evidence negatives all these. In the absence of such evidence, the general rule, in reference to deeds, is well established that a mere failure to perform covenants or promises forming the consideration, such as care or support of grantor, is not ground for cancellation of the deed. However, appellants concede that courts of equity have made an exception to this general rule and it is now the well settled doctrine in a majority of the states that, where the consideration for a conveyance is an agreement to care for or support the grantor and there has been a substantial breach of such agreement, this amounts to a failure of consideration and relief is granted on the theory that no other remedy is adequate. * * * For extended annotation on the question, see: 112 A.L.R. 670. Iowa cases cited in the note bearing on this subject are: Jewell v. Reddington, 57 Iowa 92, 10 N.W. 306 (where performance is mutually abandoned in toto); Patterson v. Patterson, 81 Iowa 626, 47 N.W. 768 (in case of substantial breach); Wheatley v. Wheatley, 102 Iowa 737, 70 N.W. 689 (in case of substantial breach); Lewis v. Wilcox, 131 Iowa 268, 108 N.W. 536 (rule recognized that relief may be granted in case of substantial breach); Kramer v. Mericle, 195 Iowa 404, 192 N.W. 257 (recognizing rule that relief may be granted in case of abandonment of the contract by the grantee, or his substantial breach thereof). Under the circumstances disclosed by this record, we are satisfied the trial court was justified in applying the foregoing equitable rule and in restoring to the ward of the plaintiff her property. * * * It is, no doubt, true, under this record, that the mother wanted and intended her *Page 5
daughters to have her property but we have it from her own lips that the gift of the property carried with it a condition subsequent. She said to her son: `They are to take care of me'. But, when the mother's mind failed, she became a difficult subject. Vera, who, prior to her marriage, did a very excellent job of caring for her mother, was no longer there to help. She said she couldn't and wouldn't impose such a burden upon her husband. The daughter Ethel was thus left alone with her mother and the task appeared to be too great for her. The girls were advised by the brothers to hire help. Instead of hiring help and putting forth extra effort, and borrowing money on the town property, if necessary, Ethel sought to make of her mother a state charge. That it was possible to have the mother taken care of outside of a state institution has been demonstrated. In fairness to Vera, it should be said that she told her brothers that she was willing to pay her share for hired help, even willing that the property all be used, if necessary, for the care and support of her mother, but Ethel was not willing to pay her share of the expense. Ethel now says she is willing to take her mother back and care for her. Under the circumstances, we think the offer comes too late."
With the rule of law as laid down in the above-cited case before us, we turn to the record to ascertain the facts. The mother deeded to the appellee, her daughter, the property involved in this dispute. In that deed it was stated that part of the other valuable considerations was that the grantee was to give the proper care and attention to the grantor. This deed was carefully prepared by a lawyer and explained to the parties. There is no dispute in regard to the deed or that both the grantor and the grantee were fully aware of the provisions of same and yet we find that just five months and four days after the deed was executed, the appellee, the grantee, left the mother's home, taking with her, if not all her belongings, at least all of the valuable ones.
In appellee's brief she makes the following concession. We quote:
"If there was convincing evidence that she never intended *Page 6
to return and had every intention of abandoning her mother to whatever fate the future would hold, then the situation would be entirely different. That, however, is not the record here. It is true that when she was about to leave her mother wanted her to stay, but Mrs. Godfrey evidently felt that if she did stay there would simply be a recurrence of the nagging and fault finding and trouble, and that it would be the best for all concerned for her to go away on a visit or for a temporary trip."
We cannot agree with the appellee that the record does not show that Mrs. Godfrey left her mother, not on a temporary trip but with the idea in mind of never returning. Her mother did not want her to leave. On the day she left her mother was in tears. One of the main witnesses for the appellee, Blossom Razor, testified. We quote from the abstract:
"When Rena left she said she didn't know whether she was coming back or not. Unless conditions changed she didn't think she would come back. The Court: What? A. Unless conditions changed she said she didn't think she would come back."
When she left she took everything that she could possibly carry with her in the car. The automobile was a two-seated car with two passengers in it, Mrs. Godfrey and her daughter. It was loaded with her belongings until it was impossible to put anything more in it, and in addition to what she carried in the car she had a sewing machine and some books which were crated and shipped. It is true she testifies to leaving a few things at the home, such as kitchen utensils and some vases, but a fair reading of the record convinces us that when Mrs. Godfrey left, she took all of her valuable belongings with her. When she left, it was a very sad parting with her mother, who was in tears. In fact, her mother at that time stated she wanted her to stay and not to go.
When Mrs. Godfrey reached Washington she sold the automobile and secured employment. She had been informed by the lawyer who prepared the deed that if she left her mother's home it would be a violation of the contract.
There is some dispute in the evidence in regard to whether *Page 7
she secured someone to look after her mother at the time she left. She claims she did make arrangements with a Mrs. Higby, but Mrs. Higby testified that it was a granddaughter of Mrs. Barnevelt that came to her and asked her to come up and stay with her grandmother. Mrs. Godfrey did not pay Mrs. Higby for staying there. She was paid by Mrs. Barnevelt. Mrs. Higby stayed only a week, leaving because she hurt her arm. Mrs. Higby testified that Mrs. Godfrey said she had taken everything belonging to her that she wanted. Mrs. Higby also testified that Mrs. Godfrey said to her she did not care if she ever came back.
We quote again from appellee's brief:
"If Rena was promptly notified when Mrs. Higby left and then took no steps to return or to find somebody else to look after the mother, there would be an entirely different situation here, but Rena never knew that Mrs. Higby only stayed one week and she felt confident that her mother was receiving good care and good attention."
Again we are unable to agree with the appellee. The record shows without dispute that on October 2, 1940, the appellee wrote to her sister a card in which she stated:
"I hear that Mrs. Higby left. Who is there now. Maybe Clara would go if she knew about it. Did Cecile go on her trip. We went through Bad Lands and part of Black Hills and over pretty high mountains too. Enjoyed it thoroughly. We are all O.K."
So on October 2d the appellee knew that Mrs. Higby had left and she made no arrangements as to who was to care for her mother after that. Again we find that on November 6, 1940, the appellee wrote a letter, in which she stated:
"Have you seen Ma lately. Elsie and Mrs. Quackenbush both wrote and told me that she was pretty bad off. Who will stay when Ada leaves."
Ada was her sister, one of the appellants, who came to her mother's home to care for her after Mrs. Higby left. Mrs. Godfrey not only knew that Mrs. Higby had left but she knew that *Page 8
her mother was sick, as she described it, "pretty bad off," and still she made no move or offer to come back and perform her contract and care for her mother.
In her answer she admits that she was a resident of Seattle, Washington. It is true that the answer was not signed until some time after her mother's death, and it is her claim that it applied to that time and not during the time her mother was alive. When the deed was executed and delivered to the appellee, it was specifically provided in the deed and definitely understood by both parties that part of the other valuable considerations mentioned in the deed was that the daughter was to give the proper care and attention to her mother during the term of her natural life. Five months and four days after the execution of that deed she left her mother's home. True, there is some evidence, and it is her claim, that her health was being affected due to the manner in which her mother was nagging and treating her. But as we view the evidence, the main reason for her leaving was her desire to go out to Seattle, Washington. That when she left her mother's home it was with the thought in mind of not coming back. This is clearly shown by the fact that she took her things with her. She made statements, some to her own witnesses, that she did not intend to return. That when she heard that Mrs. Higby, who was to look after her mother, had left, she did not return, nor did she make any effort at that time to see that her mother was properly taken care of. This was done by her sister, one of the appellants.
The agreement that the appellee made with her aged and infirm mother required her to live with and care for her mother. This record shows that she breached her contract. Everything she said, wrote, or did shows that she had abandoned her contract and did not intend to return to perform it. Under every decision of this court, where similar facts have existed the court has set aside the deed. Appellee cites no authority to the contrary, from this or any other state. It necessarily follows that the deed should have been set aside and the relief granted as prayed for, and the lower court erred in not so doing. — Reversed.
All JUSTICES concur. *Page 9
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This is an action in equity in which the plaintiff seeks to recover an alleged overcharge for heat furnished to his residence by the defendant, on the ground that a mutual mistake was made in the measurement upon which the charges made by defendant were based. It appears that during the summer of 1923 the plaintiff purchased his residence, in which the radiators had already been installed, and that, at the request of the plaintiff, the defendant connected its service mains with the radiating system in plaintiff's residence, and thereafter furnished such residence with heat. The heat thus furnished was for each heating season beginning with the fall of 1923, and up to the time of the commencement of this action in the year 1932. During all of the time involved in this *Page 900
action, bills were rendered by the defendant and paid by the plaintiff, based on a charge for square feet of radiation. During a part of the time the charge was made on a basis of 310 square feet of radiation, and, after a portion of the radiation had been removed, the charge was thereafter made on a basis of 270 square feet of radiation. About January 1, 1932, plaintiff discovered that the radiators in his residence did not contain the number of square feet of radiating surface upon which he alleges the charges made by the appellant and paid by him had been computed, and, upon the refusal of the defendant to refund the excess payments which plaintiff claimed to have made, this action was instituted.
As the basis of his action, plaintiff claimed that about September 1, 1923, pursuant to an oral arrangement, the defendant connected its mains with plaintiff's heating system, and began to furnish heating service at the customary charges made to customers receiving like service, at a price based on the number of square feet of radiation contained in his radiating system; that in the rooms on the first floor of his residence there were thirty-six sections of radiation upon which defendant charged and collected on the basis of 5 square feet per section, and that in the rooms on the second floor of his residence there were twelve sections of radiation upon which defendant company charged at the rate of 7.50 square feet per section, whereas the actual surface measurement of such radiators disclosed that each section of the radiation in the downstairs rooms contained only 3.68 square feet per section, and the radiators in the rooms on the second floor contained approximately only 6.50 square feet per section. He further alleged that in the charges thus made against him and the payment of such charges by him there was a mutual mistake, and asked for an accounting and a refund of the amount of overcharges which he claimed were thus paid. The defendant denied that it was ever intended or agreed that the charges should be based on the surface measurement of the radiators, denied that there was any mutual mistake, and alleged that such charges were based on the equivalent or rated radiation in square feet furnished plaintiff, and that such was the customary method of measuring the heat furnished. From a decree and judgment in favor of plaintiff, the defendant appeals.
The contention of the appellee, as expressed in his brief and argument, is as follows: *Page 901
"Appellee asserts that, when appellant charged him and billed him for so many square feet of radiation, that appellant meant, and intended for him to understand that he was being charged for the number of square feet of equipment, the number of square feet of radiation he had in his dwelling house; that the way appellant found this fact was to compute the square feet in the surface of appellee's radiators."
The whole matter at issue in this case centers around the method used in computing the radiation furnished plaintiff by defendant. Plaintiff's contention is that such radiation should be measured by the square feet of radiating surface contained in this radiating system, while defendant contends that the charge for square feet of radiation made by it should not be based upon the number of surface square feet in the radiating system, but upon what is known as equivalent or rated radiation as figured in square feet. The burden was upon the plaintiff to prove that a mistake had been made by defendant which resulted in the overcharge claimed.
While appellee's petition alleged an oral arrangement by which the appellant company agreed to furnish heat, the evidence is silent as to any express terms of such oral arrangement in reference to the unit of measurement upon which charges were to be made and the rate to be paid. We think the evidence fairly indicates that all that transpired in connection with the oral arrangement was that the appellee applied for, and appellant agreed to furnish, service. Following such oral arrangement, service was furnished by appellant, and the bills rendered for such service were based on a charge for square feet of radiation. Appellee contends that, in the use of the terms "square feet of radiation", the appellant and appellee both understood that the number of square feet of radiating surface of appellee's radiators was intended. In support of this contention, appellee introduced an extract from the American Society of Heating and Ventilating Engineer's Guide for 1926 and 1927, which stated that "the unit of measure in figuring radiation is the square foot of heating surface, which is the external surface." He also introduced the testimony of an expert witness to the effect that prior to 1928 the method of determining square feet of radiation was by measuring the actual square feet of radiating surface. Such witness further testified that he had measured the surface of one of plaintiff's downstairs radiators and found it to contain only 3.68 *Page 902
square feet of radiating surface. It further appeared from the evidence that in making such measurement the witness used practically the only method by which the actual surface in square feet of radiators can be determined, which is by a laborious process of covering the radiator with paper or tinfoil or other similar material, and then removing such covering and measuring its area in square feet.
It is undisputed that the square feet of surface of the radiators in plaintiff's residence was never determined by the method above referred to, and there is no evidence to show that this method was used in determining the number of square feet of radiation for which appellant charged any of its customers. In our opinion, the preponderance of the evidence fails to show that this method was commonly used by heating companies or those engaged in the manufacture or installation of radiating systems in determining the number of square feet at which radiators were rated. It is undisputed that since 1928 a standard method has been very generally adopted by which the heating capacity of radiators is quite accurately determined. This method employs what is known as the British thermal unit, which is commonly designated by the letters B.T.U. While the B.T.U. method of computation was not adopted as standard by the American Society of Heating and Ventilating Engineers until 1928, we think the preponderance of the evidence clearly indicates that this method had been taught in the schools of engineering and recognized as the most accurate method of determining the amount of heat given forth by radiators for many years prior to 1923, and that this method, or another method which gave practically the same results, had been used by the manufacturers in rating the radiating capacity of radiators prior to the year 1923.
The evidence shows that the radiators in plaintiff's residence were manufactured by the Chandler Pump Company, Cedar Rapids, Iowa; that in the catalogue issued by the said Chandler Pump Company the downstairs radiators in appellee's residence were rated at 5 square feet of radiation and the radiators in the upstairs rooms at 7 1/2 square feet of radiation; that the contractor who installed the radiation in plaintiff's house used the figures contained in the catalogue, in determining the amount of radiation required in each room; and that this was the common practice of contractors in installing radiation. The evidence further shows that at no time did the appellant company ever expressly agree that the charge for square feet of radiation made was based upon the number of surface *Page 903
square feet in the radiating system in appellee's residence. The amount of radiation upon which the charge was first made was based upon the rating of the radiators as contained in the catalogue of the Chandler Pump Company. The only measurements made were of the height of the radiators, and this was made merely for the purpose of identifying the radiators in plaintiff's residence with the radiators as shown in the catalogue of the Chandler Pump Company upon which the ratings were there made. The evidence shows that not only the Chandler Pump Company but other companies manufacturing radiators rated the heating capacity of radiators in square feet, that such rating was not identical with the number of surface square feet in such radiators, and that it was the general practice of the defendant company to take the rated radiation of the radiator manufacturers in determining the square feet of radiation to be charged to different customers.
A test of a downstairs radiator in appellee's residence was made in accordance with the B.T.U. method. According to such test, this radiator showed 4.94 square feet of radiation. The evidence showed that said radiator had been covered with a coat of bronze aluminum paint, and that such coat of paint might easily diminish its heating capacity to 4.94 square feet instead of the five square feet at which it was rated. While the petition alleged that charges in connection with the upstairs radiators had been made at the rate of 7.50 square feet per section, and that they contained only 6.50 square feet of surface radiation, the evidence fails to substantiate these allegations.
We think the evidence fails to sustain the appellee's contention that it was ever agreed or understood that the charges made by appellant for service would be based upon the square feet of radiating surface of appellee's radiators. On the contrary, we think the evidence sustains the contention of the appellant that its charges, not only to the appellee but to its customers, were based upon the rated or equivalent square feet of radiation. We therefore see no basis upon which it could be determined that any mistake was made by appellant in rating its charges for square feet of radiation, or upon which the court could find that appellee was entitled to recover any sum whatever from the appellant.
In view of the decision reached by us, it becomes unnecessary to consider other propositions which were presented on this appeal. *Page 904
The decree and judgment of the trial court is therefore reversed.
ALBERT, C.J., and KINDIG, STEVENS, CLAUSSEN, and ANDERSON, JJ., concur.
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https://www.courtlistener.com/api/rest/v3/opinions/3433047/
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In this action to foreclose a real estate mortgage the defendant owner made application for a continuance until March 1, 1937, pursuant to the provisions of Chapter 115 of the Acts of the Forty-sixth General Assembly. Plaintiff resisted the application. From an order granting the continuance plaintiff has appealed. The question presented is whether plaintiff showed such good cause to the contrary that the court erred in granting the application.
Plaintiff in argument claims that the court did so err because of an alleged showing by plaintiff of the following facts: that defendant owner was not in financial distress, but solvent and a man of substantial wealth above his exemptions; that the mortgaged premises did not include defendant's homestead; that defendant owner was not engaged in farming; that defendant owner was not personally liable on the debt; that defendant had no equity in the real estate, the value being substantially less than the amount of plaintiff's claim.
[1] The purported facts that defendant owner was not in financial distress, but solvent, and a man of substantial wealth above his exemptions, do not seem to have been alleged in plaintiff's resistance, nor made a part of the issues submitted to the district court. On the contrary in the lower court plaintiff was claiming in his resistance that defendant was unable to finance the mortgaged premises from sources other than the Federal Land Bank of Omaha and that the amount said land bank would loan would be insufficient to refinance the claim of plaintiff, and as another ground of resistance plaintiff alleged that the defendant had stated no facts showing his ability to refinance during the requested continuance. Such being the record it follows that the claim now made respecting defendant being a man of wealth, not in financial distress, cannot be considered because raised for the first time on appeal. But had the question been before the district court, we are satisfied there was no *Page 1315
such showing concerning defendant's financial condition as to bring this case within the rule announced in Butenschoen v. Frye,219 Iowa 570, 258 N.W. 769, relied on by plaintiff. While defendant may have been solvent, yet the character of his assets and the extent of his liabilities, including guarantees of obligations of others, resulted in a condition of financial distress, when the large sum due on this mortgage is taken into consideration.
[2] As to the fact that plaintiff did not occupy the mortgaged premises as a homestead, the statute under consideration contains no distinctions in its application to homestead and non-homestead property. The matter of the real estate being or containing a homestead is only one of the fact elements pertaining to the mortgaged premises that previous opinions of this court have taken into consideration. Anderson v. Fall, 221 Iowa 24,265 N.W. 165.
It is true that defendant owner was not himself physically farming the mortgaged premises. But in determining whether such fact is or is not good cause for refusing relief the purposes of the statute must be kept in mind, and especially the fact that under the statute the granting of the continuance is to be the rule. Reed v. Snow, 218 Iowa 1165, 254 N.W. 800. We find nothing in the act indicating any possible legislative intent that its purposes extend solely to owners personally farming their mortgaged premises.
Defendant purchased the mortgaged premises on May 1, 1930, paying approximately, $7,000, and accepted title subject to the mortgage in suit. Plaintiff says the manner of acquiring title, that is the fact that defendant did not assume payment of the mortgage, deprives him of the benefits of the Act. We find no substance to this contention, in view of the inclusive language of the Act and the evident purpose of the legislature to relieve all property owners in financial distress where there is a reasonable possibility of their being able to save their mortgaged property within the time provided by the statute. The conclusion is also sustained by the history of the Act under consideration. Reference is to the fact that after the above mentioned Chapter 115 had been enacted, providing that any owner or owners, defendants, might make application for a continuance, the same legislature amended the chapter by making the additional provision that the persons liable on the mortgage also *Page 1316
might make such application (Acts 46 G.A., ch. 116, section 1). The statute as amended provided that either the owner, or the persons liable on the mortgage, might make the application. Evidently in enacting the amendment the legislature realized that in Chapter 115 the right to apply for a continuance extended only to the owners of the mortgaged premises, and that if such owner did not happen to be the person who had executed the obligation the right should be further extended to include those who were personally liable upon the mortgage. The evident intent of the Act and the amendment was not to limit the persons to be relieved but rather to extend its application to all persons financially distressed whether as owners or as obligors in their personal capacities.
[3] Coming to plaintiff's claim that there is no equity in the security, because the value is substantially less than plaintiff's claim, the record discloses the following pertinent facts. On January 2, 1925, the mortgage in suit originated. The amount loaned was $20,000, bearing 5 1/2 per cent interest from November 1, 1924. On May 1, 1930, the defendant acquired the mortgaged premises for approximately $7,000, subject to the lien of the mortgage. The principal and interest were payable upon an amortization plan in sixty-nine semi-annual installments of $650 each. By reason of payments made the amount due upon the mortgage had been reduced on May 1, 1933, to approximately $18,500. Defendant was unable to pay the $650 installment due May 1, 1933, and also failed to pay the second installment of 1932 taxes. Plaintiff declared the entire indebtedness due and filed its foreclosure petition on October 21, 1933. The court granted a continuance of the cause to March 1, 1935, under the provisions of Chapter 182, Acts of the Forty-fifth General Assembly, appointing a receiver who collected the rents and profits beginning March 1, 1934. Upon the granting of the continuance to March 1, 1937, the same receiver continued in possession. There is no record before us from which can be ascertained the amounts realized from the rents and profits that accrued during the receivership.
With respect to the market value of the security at time of the trial in September 1935, the evidence discloses that the mortgaged premises constitute an average hilly farm of its locality, 326 acres in extent, of which 300 acres are tillable. During the 1935 season the farm was largely devoted to raising corn. Plaintiff's *Page 1317
witnesses testify that the market value of lands such as are involved in this case, in the same vicinity, advanced from 1933 to 1934 about fifteen per cent, and from 1934 to 1935 about ten per cent. Plaintiff's witnesses testified that this particular farm was worth possibly $14,000 when the foreclosure was commenced, and was worth $16,000 to $18,150 in September 1935. Taking into consideration that $20,000 was loaned on this land in 1925, and that by reason of the amortization payments the indebtedness had been reduced to approximately $18,500 on May 1, 1933, and the fact that in 1930 defendant invested $7,000 in purchasing the equity of this land, and considering the evidence of plaintiff's witnesses, placing the admitted value of the land at the time of the trial but slightly below the amount claimed on the mortgage at time of the default in May 1933, and the record not disclosing the amount of income realized by the receiver, we cannot say that the district court abused its discretion, and should have refused the continuance on the ground that there was no possible equity in the land to be saved by defendant during the period of the continuance. In Augustana Pension and Aid Fund v. Nagle, 219 Iowa 1337, 1343, 261 N.W. 771, 774, it is said:
"It would seem inequitable to deprive the defendants of their home and future prospects, just at a time when the abundant seasonable rains hold out the alluring hope of bountiful crops for this year, and just when farm values under the natural course of events under such circumstances would naturally tend upward."
That opinion was written in June, 1935. The thought therein expressed is confirmed by plaintiff's own proof in this case of a natural rise of land values toward normal in the percentages pointed out. Plaintiff has not established at all certainly that during the period of the continuance defendant will be unable to liquidate the debt and save his land. The discretion to be exercised was of a limited nature. After reviewing these matters urged by plaintiff as "good cause", we are unable to find that there was an abuse of such discretion by the district court. — Affirmed.
DONEGAN, C.J., and PARSONS, KINTZINGER, ANDERSON, MITCHELL, STIGER, ALBERT, and HAMILTON, JJ., concur. *Page 1318
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3433050/
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The De Luxe Cab Company was the owner and operator of a certain Pontiac motor car which was used as a taxicab and driven by Harold Smith.
Main Street in the city of Ottumwa runs east and west, and Green Street intersects it, running north and south. The taxicab stand was located just north of Main, on the east side of Green Street.
On the 12th day of September, 1936, at about the hour of five, H.E. Peterson left his place of business at 211 East Main Street, and, observing that it was raining, decided to engage a taxicab to take him home. He walked to the corner of Main and Market, then turned and walked east along the north side of Main Street, intending to go to the cab stand of the De Luxe Cab Company, situated at the corner of Green and Main. When he reached Green Street he crossed the street on the north side of Main. He saw a cab about twenty or thirty feet north of Main, on Green Street, parked about a foot or a foot and a half away from the sidewalk, headed north. As Peterson was crossing he saw the driver come from the cab stand and get into the car. Peterson walked along the sidewalk towards the cab, and, as he approached the cab he stooped to get the driver's attention. It was raining at the time and the car windows were partly steamed. As Peterson stooped he saw the driver in the seat and greeted him with the words, "Hello, Bill!" The front door of the right side of the cab opened and the door came in contact with Peterson's glasses, breaking them and striking his eye. As a result of this accident he lost the sight of his eye. The undisputed record shows that Peterson did not touch the door knob or have his hand on the door. Peterson commenced this lawsuit against the taxicab company, asking for damages in the amount of $25,000. The case was submitted to a jury, which returned a verdict in the sum of $1,900.70. The taxicab company being dissatisfied, has appealed. *Page 811
I. It is claimed that the court erred in not sustaining the appellants' motion for a directed verdict.
Appellants offered no evidence. The case was submitted to the jury on the doctrine of res ipsa loquitur, and, whether that doctrine applies is the main question argued.
[1] In their very able brief and argument appellants state:
"The doctrine of res ipsa loquitur does not apply except where the circumstances attending the injury are of such a character that the accident complained of could not well have happened in the ordinary course of events without the defendants' negligence and the instrumentalities of the injury were within the exclusive control of the defendants; * * *."
We think the appellants have correctly stated the law.
This court, in the very recent case of Harvey v. Borg, 218 Iowa 1228, at page 1230, 257 N.W. 190, at page 192, speaking through Justice Stevens, said:
"At the outset, we are confronted with the question as to whether the res ipsa loquitur rule may properly be applied to the facts of this case. Res ipsa loquitur has been defined and also applied in divers cases and to a great variety of facts in perhaps all of the states of the Union. It means simply that the facts speak for themselves. To undertake to define its limitations would lead only to confusion and uncertainty. The rule is applied generally when all the instrumentalities which might cause an injury are under the exclusive control and management of the defendant. Larrabee v. D.M.T. A. Co.,189 Iowa 319, 178 N.W. 373; Orr v. D.M. Elec. Light Co., 207 Iowa 1149,222 N.W. 560; Crozier v. Hawkeye Stages, 209 Iowa 313,228 N.W. 320; Brown v. Des Moines Steam Bottling Works, 174 Iowa 715,156 N.W. 829, 1 A.L.R. 835.
"In other words, res ipsa loquitur means that facts of a particular occurrence warrant an inference of negligence; that is, that they furnish circumstantial evidence of negligence when direct evidence may be lacking. It is, therefore, a rule of evidence and is generally so interpreted."
In the case of Orr v. Des Moines Electric Co., 207 Iowa 1149, at page 1154, 222 N.W. 560, at page 562, this court said:
"When a thing which causes injury is shown to be under *Page 812
the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care."
With these rules in mind, let us examine the facts in this case.
[2] The instrumentality causing the accident was the right hand front door of one of the cabs of the appellant company. The evidence is undisputed that the corner of the door came in contact with Peterson's glasses, breaking same and destroying his eye. The record shows that Peterson did not open the door, did not put his hand on the knob at any time. What caused the door to open is not shown; whether it was unlatched from the inside and swung open, or unlatched from the inside and pushed open, or whether the door catch was not working properly and the door was ajar and swung open, the manner in which the door opened was exclusively within the control of the man inside the cab, the appellant company's agent. The opening of the door could not have been controlled by appellee any more than a direct blow inflicted by one man upon another can be controlled by the man assaulted. Appellant had absolute control of the instrumentality. The accident was such as in the ordinary course of things does not happen. In this modern day, with automobiles and taxicabs so common, the opening of a car door does not happen unless there is some reason for it. In everyday use young children will lean against car doors and there is no thought in the minds of their watchful parents that there is any danger of the door opening. Automobile doors are so fastened that it is the extraordinary thing when one opens without some apparent reason. So in this case we have the instrumentality under the exclusive control of the appellant company. We have a happening out of the ordinary course of things; something that does not generally happen. This, we say, affords reasonable evidence in the absence of explanation by appellants, that the accident arose from a want of care. In this case we have no explanation, no claimed explanation, no offered explanation, of what happened, or why the door swung open. This, then, clearly, was a case where the doctrine of res ipsa loquitur applied, and the court *Page 813
did not err on this ground in overruling the motion of appellants.
[3] II. The appellants complain that the petition set forth a specific allegation of negligence, and that therefore appellee cannot rely upon the doctrine of res ipsa loquitur.
We turn to the pleadings to ascertain the facts.
The allegation is as follows:
"The defendants were negligent in failing to exercise ordinary care, and further in failing to exercise the degree of care required of carriers for the safety of their passengers in the operation and control of said taxicab and of the door thereof."
In the very recent case of Van Heukelom v. Black Hawk Hotels Corporation, reported in 222 Iowa 1033, 270 N.W. 16, the pleader in that case was relying upon res ipsa loquitur to prove negligence on the part of the hotel management, causing the death of plaintiff's intestate as a result of falling down an elevator shaft. He alleged that: "the falling of the plaintiff's decedent into said elevator shaft and his death were the direct and proximate result of negligent operation and maintenance of said hotel premises and the stairways, stairway landings and elevator shaft and openings thereto." This court, speaking through Justice Kintzinger, said, at page 1044 of 222 Iowa, at page 23 of 270 N.W.:
"In the case at bar no specific act of negligence is alleged; on the contrary, the negligence of the defendant is pleaded generally and the doctrine of res ipsa loquitur is invoked thereunder."
Certainly, that holding must apply to the pleadings in the case at bar. The pleadings are almost identical. The only difference is that in the Van Heukelom case the term "maintenance" was used, while in the case at bar the term "control" is used. There are many Iowa cases on res ipsa loquitur where the term "control" is used, in saying that res ipsa loquitur applies when the instrumentality causing the injury is under the exclusive control of defendant. If the defendant is negligent in the circumstances he is negligent in the control of the instrumentality causing the injury. The word "control" is used in the same broad sense that it is always used in res ipsa loquitur cases. *Page 814
In the case of Olson v. Cushman, 224 Iowa 974, at page 982,276 N.W. 777, at page 781, this court said:
"However, appellee did not allege any specific negligence and relied wholly upon the allegations of general negligence, and under such a situation the doctrine of res ipsa loquitur does apply.
"To prove this beyond any question, that appellee relied upon general allegations of negligence, we find this contained in plaintiff's petition: `Plaintiff is unable to set forth any specific acts of negligence on the part of the defendant which caused him to drive said bus from the highway into the ditch, and plaintiff relies in this action upon his allegation of general negligence and carelessness under the rule of res ipsa loquitur.'"
And so also in the case at bar, the appellee alleges that: "the manner in which said taxicab and the door thereof was managed, operated and/or controlled by the defendant, De Luxe Cab Company, and its agent, Harold Smith, was exclusively within the knowledge of the said defendants and beyond the knowledge of the plaintiff, and the plaintiff had no means of acquiring knowledge thereof."
We do not think that anyone can fairly read the petition without coming to the conclusion that appellee relied upon general allegations of negligence; that he states in his petition he is unable to allege or set forth any specific acts of negligence on the part of appellants, and that the pleading is not subject to the attack made.
There are some other errors alleged, all of which have been given careful consideration.
Finding no error, it necessarily follows that the judgment and decree of the lower court must be, and it is hereby, affirmed. — Affirmed.
ANDERSON, HAMILTON, STIGER, and MILLER, JJ., concur.
SAGER, C.J., and RICHARDS, J., dissent. *Page 815
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3433053/
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The plaintiff, who had been an agent for the defendant and also a dealer buying of defendant, brought this action to recover on a balance of account for commissions which he alleged were due him from the defendant. The defendant by way of answer claimed that the matter had been adjudicated in the state of Illinois adversely to the plaintiff, and that the court in Illinois had found that the plaintiff was indebted to the defendant in the sum of $250 and had entered judgment *Page 863
for that amount. The defendant also alleged that it was not indebted to the plaintiff in any sum, and alleged that the plaintiff was indebted to it in the sum of $250 as adjudicated in the state of Illinois, and demanded judgment by way of counterclaim against the plaintiff in that amount. Jury was waived and the cause was tried to the court. After hearing the testimony the court found that the judgment in Illinois was obtained by fraudulent practices, and that it was not valid and not entitled to full faith and credit, and entered judgment in favor of the plaintiff for $660.84 and dismissed the counterclaim.
The defendant company is located in Forest Park, Illinois, and manufactures and sells a combination of proteins for hogs and cattle, to be used in connection with their feed to balance the ration. The custom is to sell to salesmen and dealers, either for cash or on credit. The contract of the company with Miller as salesman was in writing, but the wholesale or dealer's contract was oral. The company carried two accounts with Miller, one as a salesman's account, and the other as a merchant's, or wholesale, account. The wholesale account consisted of items of feed shipped and charged to him and which feed he would sell to the purchaser as any other merchant. This was charged directly to him. The salesman's account was made up of commissions which he received on all goods sold in his territory under his salesman's contract. It was the custom that if an order came in from his territory the salesman's account was immediately credited with the full commission from that order, but, if the order was not paid for by the customer, this commission, or portion that had been credited on that order, was charged back against the account.
According to the testimony of the president of the company, George A. Simpson, on June 17, 1937, the company owed Miller approximately $1,500 on the salesman's account, and Miller owed the company approximately $900 on the wholesale account, leaving a difference of $620.16 between the accounts. At a meeting on that date in Forest Park, a check was given Miller by Simpson for the sum of $620.16, the book *Page 864
balance — in which, in event of failure to collect some of the accounts sold by Miller, there was a risk of loss. Miller then turned over to the company this Simpson check for $620.16, the company's claim being that this was in order to gain more credit. The defendant claims that it was agreed that the check was to be given Miller for the difference between the two accounts, $620.16, and that he was to turn it back to Simpson, and Simpson personally would take his chances. This was alleged to have been done in order to balance the two accounts so that thereafter Miller would owe the company nothing and the company would owe Miller nothing. Apparently, under the company's system of bookkeeping, the accounts were not balanced on the books, but were carried along in the same manner, and the books do not show that at any time the $900 item against Miller was ever canceled. It does not appear from the testimony that Miller obtained credit on the books for the $620.16 check, which was to be transferred to Miller's account, from the salesman's account to his wholesale account. From the evidence it appears that it was difficult to determine just what was the status of the Miller account. It was necessary, in order to arrive at the exact situation, that the books of the company be compared or supplemented with the Miller books.
[1] Miller was invited by the president of the company to come to Forest Park for the alleged purpose of adjusting the accounts. In compliance with the request of the president, Miller, in company with one Bacon, whom he had selected to audit the accounts, went to Forest Park, to the office of the company, and in connection with Mrs. Hagan, the bookkeeper of the company, examined the books with a view to straightening out the difficulty in the accounts, and especially in regard to the $620.16 check. The testimony of Miller's auditor shows that the bookkeeper of the defendant company inquired during the morning what the audit revealed, and was informed that the company was indebted to Miller. The parties were engaged on the books until noon, and there was some talk that the matter must be adjusted by a lawsuit. The president of the company was not present but was represented by his son *Page 865
and the bookkeeper. Before the accounts were finally adjusted, and while still engaged upon them, between 2 and 3 o'clock in the afternoon, notice of suit was served upon Miller before a justice of the peace in Forest Park. This ended all negotiations, and later a judgment was rendered by the justice against Miller in the sum of $250 and costs. After the judgment was rendered the defendant company forwarded a check for about $17, with the endorsement, "Settlement of all accounts in full," which check was returned by the plaintiff to the company.
The defendant claims that the district court erred in failing to find that the judgment obtained in Illinois was entitled to full faith and credit; and in finding and ordering that the Illinois judgment against plaintiff was not a binding adjudication, because of fraud. Defendant argues that the judgment of a sister state is entitled to full faith and credit. This is true, with certain qualifications. If the jurisdiction of the foreign court is obtained by fraud, then, under our holdings, the judgment is void and the full faith and credit clause does not apply. The general rule is set out in 15 R.C.L., page 935, paragraph 411:
"So where, for the purpose of obtaining jurisdiction of the person, a resident of one state is induced by false representations to go to another state, where he is served with a summons, it has been held that the jurisdiction so acquired by the foreign tribunal is fraudulent, and the fraud constitutes a good defense to an action, brought in the first state, on the foreign judgment rendered by it. It seems that in such a case the defendant is not bound to appear in the action in which such judgment was rendered for the purpose of moving to dismiss the proceedings on the ground of the fraud, and that the defense of fraud in acquiring jurisdiction may be interposed when a legal demand is made for the first time on the judgment." Citing Dunlap v. Cody, 31 Iowa 260, 7 Am. Rep. 129, and note.
The question of fraud in the procurement of a foreign judgment arose on the facts in Toof v. Foley, 87 Iowa 8, *Page 866
54 N.W. 59. The rule there laid down, on facts somewhat similar to the case at bar, was definitely stated, citing Dunlap v. Cody, supra, that if a person residing in one jurisdiction be induced under false pretenses or representations, to come into another, for the purpose of there getting service upon him, the jurisdiction thus acquired will be held to have been fraudulently obtained and the judgment is void. In the case cited the defendant was induced to file an answer, but notwithstanding such appearance and answer, the judgment was held not to be valid. The case of Crandall v. Trowbridge, 170 Iowa 155, 156, 150 N.W. 669, 670, Ann. Cas. 1916C, 608, cited by defendant, is based upon facts differing from the case at bar. But in that case the rule is clearly set out:
"If the presence of appellant in Iowa was procured by trickery, deceit, or the fraudulent and wrongful acts of plaintiffs, or those acting in their behalf, the court did not obtain jurisdiction, and in that case the motion to quash should have been sustained."
[2] We think that under the rule above laid down there was no duty devolving upon plaintiff either to appear or defend in Illinois, if jurisdiction was in fact fraudulently obtained. See 15 R.C.L., page 935, above cited, and Dunlap v. Cody, supra. In the latter case it was suggested by judgment plaintiff that the remedy of the judgment defendant was to urge the invalidity of the judgment in the Illinois court, either by motion for dismissal by objection to the service, or by proceeding in equity to set the judgment aside or restrain its collection. The court held that there was no such duty. The case of Northwestern Cas. Sur. Co. v. Conaway, 210 Iowa 126, 129, 230 N.W. 548, 549, 68 A.L.R. 1465, does not support defendant's theory of the duty of plaintiff to appear in the Illinois court. The case involved the question of immunity from service of process, and a motion to quash which invoked the jurisdiction of the court, and not the question of obtaining jurisdiction by fraud. The case states, citing authorities, that judgments erroneously entered in such cases are not void, but *Page 867
voidable, the final holding being that "the courts of this state cannot refuse to give full faith and credit to a judgment rendered in a sister state which is voidable only, and not void. So, in Mahoney v. State Insurance Co., 133 Iowa 570, 576, 110 N.W. 1041, 1043, 9 L.R.A., N.S., 490, it is stated:
"If the judgment be void for want of jurisdiction in the court pronouncing it, of either of the parties or of the subject-matter, it may, of course, be attacked at any time or in any proceedings whereby it is ought to be enforced; and as the same may be true as to any fraud which renders it void, and not simply voidable."
See also Ashby v. Manley, 191 Iowa 113, 161 N.W. 869; Cohn, Baer Berman v. Bromberg, 185 Iowa 298, 170 N.W. 478, citing Rogers v. Gwinn, 21 Iowa 58, and other cases. But we have here to do with a judgment which is not merely voidable, but, if the evidence sustains the pleaded facts, is void. No compulsion to defend exists in such a case.
[3] As stated, trial was to the court, jury being waived. Hence, under the general rule, the finding and judgment of the court, based on substantial supporting testimony, has the force and effect of a jury verdict and will not be disturbed here. The court had before it all the evidence, including letters written plaintiff by defendant, requesting plaintiff to go to Forest Park, and an offer to pay carfare for plaintiff's auditor. These were in evidence. The court also had the opportunity to see and hear all witnesses and weigh their testimony. It could consider the judgment itself, and the attendant circumstances in connection with the bringing of the suit, with the fact that the parties were engaged, or apparently engaged, in an attempt to reconcile their conflicting claims when notice was served. No very satisfactory evidence was offered to show upon what the amount of the justice's judgment was based. From the record we think there was evidence to permit the court to determine as a fact that the trip was suggested and procured to be undertaken for the purpose of bringing plaintiff within *Page 868
the jurisdiction of the Illinois justice court. The court could and did find from the evidence that the plaintiff was brought to Illinois, not for the purpose of adjustment of accounts, but to secure a judgment. With such a finding we are not disposed to disagree. See Toof v. Foley, supra.
Defendant's claim that the court erred in dismissing the counterclaim is determined by the finding as to the invalidity of the Illinois judgment. We must therefore conclude that the court's finding and order in this respect should stand.
The principal controversy in the case was as to the Illinois judgment, which if valid would necessarily have disposed of the case. Question is raised as to the amount of the judgment awarded plaintiff. An examination of the record and the computation made by the witnesses who audited the accounts persuades us that the amount determined by the court is correct.
For the reasons given, we hold that the cause should be, and it is, affirmed. — Affirmed.
RICHARDS, C.J., and STIGER, BLISS, OLIVER, HAMILTON, and MILLER, JJ., concur.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3433054/
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The numbered specifications of negligence are set forth in appellant's petition as follows:
"1. A failure to carry on said grader outfit or road machinery, at the time and place in question, at least two red danger signal lanterns or lights, each capable of remaining continuously lighted for at least sixteen hours.
"2. A failure, at the time and place in question, to place and maintain in a lighted condition at least one danger signal light upon the front and one upon the rear of said road machinery.
"3. The operation of said road machinery, at the time and place in question, without placing and maintaining in a lighted condition at least one danger signal light upon the front and one upon the rear of said road machinery.
"4. The high-handed, heedless, reckless, and illegal disregard of duty in failing to supply and use proper danger signal lights while operating said road machinery after sunset, as is made specific and mandatory by law.
"5. The creating and maintaining of a hidden danger or trap upon the public highway, at the time and place in question, because of a failure to obey the mandatory requirements of law with reference to the maintenance and use of danger signal lights on said road machinery after sunset.
"6. The official misconduct on the part of the Board of Supervisors of Marshall County, Iowa, in failing to require an official bond and undertaking on the part of the road patrolmen for the faithful performance of their duties as provided by *Page 720
statute and which duties are owing this plaintiff and the public in general.
"7. The official misconduct on the part of the road patrolmen herein in failing to enter into a bond conditioned upon the faithful performance of their duties as provided by statute and as owing this plaintiff and the public in general.
"8. The official misconduct on the part of the Board of Supervisors of Marshall County, and the road patrolmen herein in depriving this plaintiff of the full legal protection he was entitled to, in failing to provide for sureties and a bond or undertaking of any kind on the part of the road patrolmen."
It will be noted that the first five specifications are predicated upon the failure of the grader to carry lights and signals. Specifications 6, 7, and 8 seek to state a case against Marshall County and its Supervisors. These latter specifications were eliminated by the ruling of the court on the motion to strike. We have no occasion to give separate consideration to the motion and to the demurrer inasmuch as both rest somewhat upon the same ground. If either one was properly sustained, there could be no occasion for debate upon the other. Whether defendants, Hanson and Teal, may be rendered liable, is a question not before us. As to them the case is pending in the district court. Nor need we distinguish between the liability of Marshall County and the liability of the Supervisors in view of our conclusion as to the liability of the latter. The liability of the County is predicated upon the liability of the Supervisors. If the latter are not liable, the former can not be so. Whether the converse of this proposition be equally true, is a question not before us and we shall express no view thereon. However, on the question of misjoinder, see Aplin v. Smith,197 Iowa 388.
[1] I. The alleged liability of the Supervisors is predicated in the first instance upon the operation and effect of Section 4776 of the present Code, which provides as follows:
"4776. Bonds. Said patrolmen shall give bond for the faithful performance of their duties, and in such sum as the board may order. Said bonds shall be approved by the board."
This section is a part of Chapter 243, which purports to set forth the duties of the road patrol as follows; *Page 721
"4774. Road patrolmen. The board of supervisors shall cause all highways under their jurisdiction to be patrolled, throughout each road-working season, and at such other times as they may direct, and to this end shall appoint such number of patrolmen as may be necessary to perform such duty."
"4775. Tenure and Salary. Such patrolmen shall receive such compensation as the board may determine, shall be subject to the orders of the board, and shall hold their positions at the pleasure of the board."
4776. Copied above.
"4777. Tools. The said board shall supply said patrolmen with all necessary tools and equipment, and the patrolmen shall be responsible upon their bond for the care of the same."
"4778. Duties. Each road patrolman shall:
"1. Devote his entire time to his duties.
"2. Personally inspect, at least once each week, and oftener if notified of defect in roads or bridges, all roads assigned to him.
"3. Seasonably drag, or cause to be dragged, after each rain, and at such other times as may be necessary, all roads assigned to him.
"4. Keep all sluices, culverts, and bridges and the openings thereof and all side ditches of the road free from obstructions.
"5. Provide such side ditches with ample outlets.
"6. Remove loose stones and other impediments from the traveled part of the highway.
"7. Fill depressions and keep the road free from ruts, water pockets, and mud holes.
"8. Repair the approaches to bridges and culverts and keep such approaches smooth and free from obstruction.
"9. Perform such other duties as the board may direct."
Section 4779 confers upon the road patrol the official character of peace officers and requires them to take oath and wear badges as such peace officers. It will be noted that Section 4776 provides that "patrolmen shall give bond for the faithful performance of their duties". The amount of the bond is left to the discretion of the Supervisors. The patrolmen who are defendants herein had given no bond. Because of this failure the *Page 722
plaintiff charges the Supervisors with neglect contributing to his injury. The statute specifies no minimum as to the amount of the required bond. The argument for plaintiff is that if the Board had specified the amount of the bond, and if the patrolmen had executed such bond, the plaintiff could have sued upon such bond to recover his damages. The further argument is that because no such bond was given, the Supervisors became liable to plaintiff. Whether such liability of the Supervisors would extend to the full measure of injury suffered by the plaintiff, or only to such amount as the plaintiff could have recovered upon the bond, if one had been given, is not indicated in the argument. The contention seems to be that the Supervisors became liable for the full amount of the damages. If plaintiff's argument is untenable at this point, the error permeates his entire case. The bond required by Section 4776 is known in the general parlance of the cases as a "performance bond". We have held definitely that such a statutory bond has in it no quality of liability insurance; and likewise that a statutory performance bond is limited to the scope of the statute and may not be converted into liability insurance for personal injuries even by its own terms. The reason for such rule is that if additional liability be imposed upon statutory bond, beyond the scope of the statute, the added liability will absorb the penalty of the statutory bond and will thereby render the bond without value for the statutory purpose. This question has received by us very full consideration in two cases: U.S.F. G. Co. v. Iowa Telephone Company, 174 Iowa 476; Schisel v. Marvill, 198 Iowa 725. These cases have been overlooked in the briefs. They are decisive of the question under consideration at this point. Both opinions are extensive in their discussion of the question, and it would serve no useful purpose for us to repeat the discussion here. Sufficient to say at this point that the statutory bond required by Section 4776, if given, would not have been available to the plaintiff as liability insurance.
[2] II. In addition to the duties imposed by Chapter 243, additional duties are imposed upon the patrolmen under Sections 5055-b1, 5055-b2, 5055-b3, and 5055-b4. These are as follows:
"Sec. 5055-b1. No tractor, motor truck, road grader, road drag, or other piece of road machinery operated by gasoline, kerosene, or coal shall be used upon any public highway in this *Page 723
state which is open to traffic by the public, unless there is carried at least two red danger signal lanterns or lights, each capable of remaining continuously lighted for at least sixteen hours."
"Sec. 5055-b2. It shall be the duty of each person charged withthe operation of any tractor, motor truck, road grader, road drag, or other piece of road machinery which is required by the preceding section to carry red danger signal lights, to place and maintain in a lighted condition at least one signal light upon the front and one upon the rear of any such tractor, truck, grader, drag, or other piece of road machinery from the time the sun sets until the time the sun rises the following day, whenever the same is being operated or stationed upon any public highway open to traffic by the public."
"Sec. 5055-b3. It shall be the duty of the highway commission,the board of supervisors of each county, and each road patrolmanto enforce the provisions of the two preceding sections as to any such tractor, truck, grader, drag or other piece of road machinery under their direction and control, respectively."
"Sec. 5055-b4. Any person directly chargeable with a duty under the provisions of the three preceding sections, and who fails to perform said duty, shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars, or be imprisoned in the county jail not to exceed ten days."
It will be noted from the foregoing that the duty "to carry" and "to place" the lights and signals is imposed upon the person operating the grader. In Section 5055-b3 a duty is imposed upon the Highway Commission and upon the Board of Supervisors to "enforce" this requirement. The argument for plaintiff at this point is that the failure of the patrolmen to "carry" and "place" the signals at this particular time became a breach of duty on the part of the Board of Supervisors and a failure to enforce. We think such an interpretation can not be put upon the statute without rendering it absurd. Manifestly the duty thus imposed upon the Highway Commission and upon the Supervisors, is governmental. It contemplates and requires good faith on the part of such officials to give effect to these requirements. It can not mean that every, or any, member of the Highway Commission, or that any member of the Board of Supervisors, must be personally present at every sunset at the place *Page 724
of every road-grader to see personally that the patrolmen "carry" and "place" the signals upon their graders respectively. If the Supervisors of any county were in rebellion against the statutory requirement, or perhaps indifferent thereto, to the extent of encouraging neglect upon the part of the patrolmen, a different question would be presented. Both the Highway Commission and the Supervisors, in the exercise of their governmental duties, had a right to assume that each patrolman in operation of his grader, was performing his full duty under the statute, until the contrary fact was in some manner brought to their attention. The mere failure of these patrolmen to carry lights and signals at this particular time, did not of itself constitute a breach of duty on the part of the Supervisors.
[3] III. The further contention of the plaintiff is that liability may be predicated upon Section 5026, which provides as follows:
"5026. Liability for damages. In all cases where damage is done by any car driven by any person under fifteen years of age and in all cases where damage is done by the 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."
The contention is that Marshall County is a "person" and that it was the owner of this grader; that the same was a "car" because propelled by gasoline; and that therefore Marshall County became liable under this section. The grader in this case consisted of a combination of a caterpillar-tractor and a steel blade sixteen feet long and the usual accessories. Under this section a "car" means primarily an automobile. How far it may be fairly expanded to include other motor vehicles, might become a close question in a particular case. A "car" is ordinarily a thing of speed. A road-grader propelled by a caterpillar-tractor, is a road implement and a thing of power. It carries no speed hazard. In its locomotion, it is a mere ox upon the road. In this case it was a mere obstruction to the travel. It presented no more danger while in motion than it did while at rest. The collision herein was with the outer end of the grader-blade. For a definition of the word "car", as used in this statute, we have no better guide than the every day parlance of automobile users. We think it safe to say that no informed *Page 725
automobile user would refer to a caterpillar-road-grader, as a "car". See also Code 4863.
[4] Quite apart even from this question, and reading the statute, in the light of its history and of its purpose we do not think that it has any reference to the ownership of public property by a municipality, when used solely for governmental purposes. We hold accordingly.
The foregoing comprises the more persuasive points in appellant's plausible argument. Other features of the argument need not be considered. What we have here said is necessarily determinative of the result.
The judgment below is accordingly affirmed.
FAVILLE, C.J., and MORLING, KINDIG, and GRIMM, JJ., concur.
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The plaintiff brought his action upon an insurance policy. He introduced his evidence, and rested. Thereupon the defendant presented a motion to direct a verdict against the plaintiff, for want of sufficient evidence to go to the jury. This motion was argued, and submitted to the court. Thereafter, the court sustained said motion by entering its finding upon its docket and by oral announcement thereof in the presence of the parties. Thereupon, the plaintiff orally announced that he wished to dismiss his case without prejudice. This announcement was ignored by the court, on the ground that it came too late. The question presented on this appeal is: Had the plaintiff's case been finally submitted, within the meaning of Section 11562 of the Code of 1924? Such section is as follows:
"11562. An action may be dismissed, and such dismissal shall be without prejudice to a future action:
"1. By the plaintiff, before the final submission of the case to the jury, or to the court when the trial is by the court."
This section, together with the kindred Section 11505, has been frequently construed by us. Some of the discussions in our cases are in some degree inharmonious. Actual decisions, however, in the various cases are not inconsistent. We have frequently held that a mere intimation of opinion by the judge in advance of an actual entry of decision thereon is not sufficient to terminate the pendency of the case and to terminate the right of plaintiff to a voluntary dismissal.
The special reliance of appellant is upon Oppenheimer Bros. v.Elmore, 109 Iowa 196; and upon Morrisey v. Chicago N.W. RailwayCo., 80 Iowa 314. In the Morrisey case we said:
"Plaintiff having introduced all his evidence and rested, defendant made a motion to instruct the jury to find for the defendant, which, being fully submitted, the court stated that it thought the motion ought to be sustained, and indicated that he would sustain it, but had not yet made the entry on the calendar, nor directed for the defendant. * * * A submission is final only when nothing remains to be done to render it complete. Submission to a jury is not final until the last words of the charge are read, and the jury directed to consider their verdict. Harris v.Beam, 46 Iowa 118. There was no final submission of *Page 1302
this case to the jury. They had not received the charge of the court, and as yet had no authority to consider of or return a verdict. Appellant contends that, as the sustaining of the motion for verdict was, in effect, a final disposition of the case, there was a final submission of the case to the court before plaintiff asked leave to dismiss. Surely, the submission of the motion was not a submission of the case to the court; for, whether the motion was overruled or sustained, it remained to submit the case to the jury for verdict."
In the Oppenheimer Bros. case we followed the Morrisey case, upon identical facts. It is recited in each case that plaintiff's dismissal occurred after the judge had indicated his opinion, but before he had made any entry upon his docket.
In McArthur v. Schultz, 78 Iowa 364, we reversed the lower court for permitting plaintiff to dismiss an equity case after submission thereof to the court, but before decision thereof.
In Inman Mfg. Co. v. American Cereal Co., 155 Iowa 651, we said:
"A cause is not finally submitted until the jury proceeds or has been directed to proceed with its consideration, after the instructions have been read. Harris v. Beam, 46 Iowa 118, andLivingston v. McDonald, 21 Iowa 160. Nor until the cause, after submission to the court by the parties, is being considered, or has been taken under advisement by the court. Toof v. Foley,87 Iowa 8; Carney v. Reed, 117 Iowa 508. Unless the objections to such dismissal interposed by defendant then were sufficient, the dismissal should have been entered, in accordance with plaintiff's request."
In that case, the defendant had filed his motion for a directed verdict in the trial court, which was overruled. The appeal was from such ruling. We held that the motion should have been sustained. We reversed the case and remanded, with directions. Thereupon, the plaintiff purported to dismiss his case without prejudice. The defendant resisted such voluntary dismissal, and moved for judgment on the merits. The trial court entered judgment on the merits, and we sustained the ruling on appeal. The effect of the ruling below and of our holding here was to sustain the motion to direct a verdict and to enter judgment for defendant, even though no formal verdict was ever signed by the jury or presented to it for signature. *Page 1303
If the district court could properly enter such a judgment after appeal to this court, then necessarily it ought to have done so before appeal to this court.
In Simpson College v. Executors Mann Estate, 203 Iowa 447, we construed Section 11505 as to what constituted a "final submission." The record in that case shows that both parties rested, and both parties moved for a directed verdict, and the motion of the defendant was sustained. Thereupon, the defendant asked to reopen the case for further testimony, which request the court refused. On appeal, we sustained the action of the lower court.
Dunn v. Wolf, 81 Iowa 688; Sickles v. Dallas Center Bank,81 Iowa 408; Holtz v. Smith-Morgan Print. Co., 150 Iowa 91; andCarney Bros. v. Reed, 117 Iowa 508, are cases which tend to the support of the trial court.
It will be observed from our quotation from the Morrisey case that what was said upon the necessity of submission to the jury pursuant to the direction of a verdict was not essential to the decision in that case, and was, therefore, in the nature of dictum. It will be observed, also, that we have run counter to such dictum in our later cases. We think our later cases present the sounder view. Where the evidence of plaintiff presents a question for the consideration of the jury, then manifestly the case is not submitted until the last word to the jury has been uttered, and this last word is the direction to the jury to proceed to the consideration of the case, as held in Harris v.Beam, 46 Iowa 118. On the other hand, if a plaintiff rests without introducing any evidence which entitles him to go to the jury, and a motion to direct a verdict is presented, argued, and submitted to the court, and decision thereon is announced and entered upon the docket, we see no fair reason for saying that the case was not fully submitted. There was nothing left for the consideration of the court. There was nothing presented which could be considered by the jury. The signing of a verdict under direction of the court is a mere formality, and may be followed or omitted with equal legality. A motion to direct a verdict is the equivalent of a motion to withdraw a case from the consideration of the jury and to dismiss the same. To submit a directed verdict to the jury is a formality which has no other function than to give form to the record. This was necessarily the theory *Page 1304
upon which we sustained the judgment in the Inman Mfg. Co. case. See, also, Crane v. Leclere, 204 Iowa 1037.
It is to be observed that, in the case before us, the decision of the court had been entered upon the docket, and it was necessarily a finality. In order to permit the plaintiff to dismiss his case, it would have been necessary for the court to set aside the entry and the submission. The court perhaps had some discretionary power in that regard, upon a showing of adequate reason therefor. The appellant did not move to set aside the submission or the entry, nor did he offer any showing which would appeal to the discretion of the court.
We are of opinion, therefore, that the cause had been finally submitted and fully decided, within the meaning of the statute, at the time the appellant's purported dismissal was made. The defendant did file a motion for a new trial, wherein he urged the same contention that he is urging here. In overruling his motion for a new trial, the trial court recited the fact that the plaintiff had previously brought his action, and had previously dismissed, in the face of a motion for a directed verdict, and that he was now pursuing the same course for the second time. In so far as the court had power of discretion, this fact was pertinent. The appellant urges, however, that there was no evidence in the record to sustain this statement by the court. Appellant's abstract has not purported to set forth any of the evidence introduced on the trial. The written views of the court are set forth by him in his abstract. He is not in a position, therefore, to challenge the statements of fact contained in such opinion by merely omitting all the evidence from his abstract.
The judgment of the court below is, accordingly, affirmed. —Affirmed.
STEVENS, C.J., and FAVILLE, KINDIG, and WAGNER, JJ., concur. *Page 1305
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According to the indictment, the appellant, Lester Smith, was accused of "willfully, unlawfully, and feloniously" taking, stealing, and carrying away from their coop certain domestic fowls. This offense was said to have been committed on the 13th day of May, 1926. When thus charged, the appellant pleaded "not guilty." But at the trial, he was convicted, and now seeks reversal because of errors committed by the district court. Two of those complaints will be considered.
I. It is claimed that the trial court erred in its instructions relating to the effect of the appellant's having in his possession recently stolen property. In fact, 1. LARCENCY: the appellant urges that in this respect the evidence: court below wrongfully placed the burden of recent proof, and denied the presumption of innocence. possession: That subject has been before this court many effect. times.
Manifestly, the State, when meeting the necessary proof, may call to its assistance the circumstance of possessing recently stolen property. An inference may arise therefrom that the defendant is one who did the stealing. Throughout the entire trial, however, the defendant is entitled to the historical presumption of innocence, and must be convicted beyond a reasonable doubt. No presumption that he is guilty at any time exists. Even the inference arising from the possession of recently stolen property must be considered with all the other evidence, as well as the lack thereof, and if from the entire record the jury still entertains a reasonable doubt of the defendant's guilt, there should be an acquittal. State v.Jackson, 205 Iowa 592; State v. Fortune, 196 Iowa 995; State v.Brady, 121 Iowa 561. Explanation is afforded in State v. Brady,
supra, by the use of the following language:
"The law does not attach a `presumption of guilt' to any given circumstance, nor does it require the accused to `overcome the presumption thereby raised,' in order to be entitled to an acquittal. What the law does say is that the fact of possession is evidence of guilt upon which a conviction may properly be returned, unless the other facts or circumstance developed be such that, notwithstanding the recent possession, the jury still *Page 1347
entertains a reasonable doubt of the defendant's participation in the crime. It is in this sense that the words `presumption' and `prima-facie evidence' must be understood when employed in this connection."
An application of those fundamental principles to the instructions given in the case at bar will readily demonstrate that an undue burden was placed upon the appellant.
The subject involves Instructions 6, 7, and 8. So far as material, the charge in this respect was:
"(6). Possession of stolen property immediately after it was stolen is presumptive evidence that the person having it in his possession is guilty of the larceny of the property, unless the evidence as a whole satisfactorily explains such possession."
"(7). It is claimed by the State that, in the nighttime of May 13th, 1926, the defendant, Lester Smith [appellant], stole certain chickens from the coop, building, or premises of one C.C. Fidlar, and on the next day, sold the said chickens to a dealer, Mr. Quigley, at Bunch, Iowa, * * * If you find from all the evidence in the case, beyond a reasonable doubt, that the chickens, or some of them, which were sold to the dealer at Bunch by the defendant, Lester Smith [appellant], were in fact the property of the said C.C. Fidlar, and that they had been stolen from the premises of the said Fidlar, then you should find the defendant [appellant] guilty. * * *"
"(8). * * * If you find from the evidence that any part, even one or more, of the chickens so alleged to have been stolen from the said C.C. Fidlar were found in the possession of * * * [appellant, Smith], * * * then you should convict the defendant [appellant], unless the evidence in the case, taken and considered as a whole, satisfactorily explains the possession of the defendant [appellant] of said chickens to have been honest and rightful."
Obviously, the district court placed upon the defendant the burden of proving himself innocent; for, if the jury found the existence of the designated facts named by the court, then it was their duty, under the instructions, to convict the appellant, even though, under the whole record, there may have been a reasonable doubt. He, under that charge, did not have the presumption of innocence, nor was the State required to prove him guilty *Page 1348
beyond a reasonable doubt. Furthermore, it was not incumbent upon appellant to show that his possession was "honest and rightful." If he did not steal the chickens, his possession of them was immaterial. Maybe such "possession" was dishonest and wrong, yet the appellant would not be guilty of the crime charged if he did not steal the poultry. Had he obtained the personal property wrongfully by means independent of the present charge, there would be no guilt under the specific indictment. State v. Harris,194 Iowa 1304; State v. Bricker, 178 Iowa 297; State v. Ivey,196 Iowa 270; State v. Brady, supra. To illustrate, it is said in theBrady case:
"So far as the accused was required to explain his possession in order to avoid the inference of guilt, it is only necessary for him to show that he obtained it by some means not connected with the particular crime charged in the indictment; and such explanation, if believed by the jury, was sufficient to acquit him, although it may tend to show him guilty of some other crime."
Likewise, in State v. Ivey, supra, it is declared:
"Two matters in this instruction [the one given in that case] are subject to criticism. One is the use of the expression that a `presumption arises that the automobile was stolen by the defendant,' because of possession; the other is the statement that `this presumption may be overcome by the defendant, showing that he came into the possession thereof honestly and in goodfaith.' It is not correct to say that the unexplained possession of recently stolen property `is sufficient to raise a presumption
of defendant's guilt.' What the court doubtless meant was that a `permissible inference' may arise from the possession of recently stolen property that the one in such possession is guilty of the larceny. At no stage of the proceedings does the law raise a `presumption' of the guilt of a person charged with crime, nor does it ever cast upon him the burden of satisfying the jury of his innocence. A `permissible inference' of guilt may be drawn from certain established facts, such as the unexplained possession of recently stolen property, but no `presumption' of guilt arises therefrom. At all times, and throughout the case, the burden rests upon the State to establish the guilt of the defendant beyond a reasonable doubt. It may be true that, in some of our earlier decisions, we have tolerated the use of the word *Page 1349
`presumption,' in instructions on this subject, where it appeared from all of the instructions in the case that the jury would understand that the word `presumption' was used in the sense of `permissible inference,' and where the proper burden was placed upon the State throughout to establish the guilt of the defendant beyond a reasonable doubt. But in our later cases, we have expressly disapproved of such an instruction."
Again, in State v. Harris, supra, there is found this phraseology:
"It is not correct to say that any burden of proof is cast upon the defendant. Such an instruction implies a legal presumption of guilt obligatory upon the jury, if the defendant fail to meet the burden thus cast upon him. Nor was it proper to fix honesty of acquisition of the possession of the property as a standard of explanation sufficient to rebut the prima-facie case. If the defendant's explanation should show that he acquired his possession in a manner independent of the facts charged in the indictment, and consistent with his innocence thereof, it would be a sufficient explanation for the purpose of his defense, even though it were tainted with other dishonesty."
Consequently, because of the above and foregoing discussion and the authorities therein cited, it is apparent that a reversal is essential.
II. Another contention made by appellant is that the court erred in excluding certain evidence. Such testimony was offered for the purpose of showing that the prosecuting witness was "a spoliator of evidence." Identification of the 2. CRIMINAL poultry was, of course, important. Appellant LAW: trial: claimed that he owned the chickens, while the harmless prosecuting witness insisted that he could error: readily recognize them as his own. Accordingly, exclusion of soon after the arrest, a part of the alleged inconsequen- stolen property was returned by the sheriff to tial the prosecuting witness. Whereupon, the evidence. appellant, through his attorney, asked for an inspection of the poultry by disinterested persons, in order that it might be determined to whom the fowls in fact belonged. Apparently an order of court was obtained, requiring the prosecuting witness to permit such examination. Evidence was offered by appellant to prove that the prosecuting witness refused said examination, sold the poultry, *Page 1350
and would not impart information concerning its whereabouts. Evidently, it was appellant's idea that the refusal of inspection had a tendency to weaken the identification made by the prosecuting witness. See, generally, 22 Corpus Juris 109 and following; 10 Ruling Case Law 884, Section 32; Western Union Tel.Co. v. McClelland, 38 Ind. App. 578 (78 N.E. 672); Momence StoneCo. v. Groves, 197 Ill. 88 (64 N.E. 335); The Luckenbach, 144 Fed. 980.
Refusal to admit such testimony was made by the court because the prosecuting witness had already admitted the truth of the allegations. After an examination of the record, we are convinced that the prosecuting witness did concede those facts. Thus there was before the jury said facts under consideration, and it was for that body to say to what extent, if any, the value of the prosecuting witness's identification of the property was thereby minimized. Hence, no reason was manifest for introducing the independent proof. Prejudice does not appear, under the circumstances.
Wherefore, the appellant is entitled to a new trial, and the judgment and decree of the district court is reversed and remanded. — Reversed and remanded.
ALBERT, C.J., and EVANS, FAVILLE, WAGNER, and GRIMM, JJ., concur.
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On and prior to the 3rd day of October, 1934, A.H. Cummings was an unmarried man and was the owner of lot 17 in block 24 in Brice and Ong Land Company's Street Railway addition to the city of Mason City, Iowa. On that day he executed a warranty deed which recited that, in consideration of the sum of $1.00 paid by G.N. Beemer and Ralph S. Stanbery, trustees, he sold and conveyed the said real estate to said G.N. Beemer and Ralph S. Stanbery, trustees. The deed recited the terms of the trust thus created substantially as follows: 1. The trustees were to have absolute management and control of the real estate until the trust should terminate as therein provided. 2. The net income from rentals collected was to be paid to the grantor, during his lifetime, as he might require; upon his death the trustees were directed to pay the expenses of his last sickness and burial and $100 to a cemetery association for a perpetual maintenance fund; and, after the payment of said items, the net income was to be paid "at such reasonable times *Page 413
as may be determined by the trustees, to Albert H. Cummings and Lewis B. Cummings, grandsons of the Grantor, divided between them equally share and share alike." 3. The trust was to terminate at the time that the youngest grandson, Lewis B. Cummings, attained the age of 25 years, "provided that at that time said grandsons are free from debt, such fact to be determined by the Trustees; and in the event either of said grandsons are financially involved this trust shall continue as to one or both of said grandsons at the discretion of the Trustees." 4. Upon the termination of the trust the title to the real estate was to vest absolutely in said Albert H. Cummings and Lewis B. Cummings. This deed was recorded on the 4th day of October, 1934, and following the recording was in the possession of the trustee, Ralph S. Stanbery, at all times until the trial of this case. Until his death, which occurred on the 4th day of February, 1936, the income of the property was collected by the grantor, A.H. Cummings.
On March 18, 1936, the plaintiff trustees filed their petition in equity in this action, alleging that they are the absolute owners in fee simple, subject only to the provisions of the trust deed, of the said lot 17 above referred to; that the defendants, who are husband and wife, make some claim adverse to the title of the plaintiffs in said property; that neither of the defendants has any right, title, or interest in and to said property; and that their said claims cloud the title of the plaintiffs therein. Plaintiffs prayed that their title and estate be established against the adverse claims of the defendants, and that the defendants, and all persons claiming by or through them, be barred and estopped from having or claiming any right, title, or interest in and to said property, and that their title thereto be quieted, established and confirmed. A copy of the deed was attached to the petition and made a part thereof.
The defendants filed an answer which, in addition to a general denial, contained several affirmative defenses which were stricken out on motion. Thereafter, the case went to trial on the allegations of the plaintiffs' petition and the general denial contained in the defendants' answer. The trial court entered a decree finding that A.H. Cummings, by the execution of the deed here involved, fully and completely alienated the title to the real estate therein described and vested the plaintiffs with said title; that plaintiffs are entitled to maintain this action and to *Page 414
maintain the title vested in them, wholly unimpaired from any action taken by A.H. Cummings or the beneficiaries, until the plaintiffs have carried out the obligations imposed upon them by said deed; that Albert H. Cummings, the grandson of the grantor and one of the beneficiaries under the deed, had no power of alienation; that the agreement between him and the defendant, William G. Challas, shows that the deed executed by him was upon a condition that could not be performed; that it would be impossible for said Challas to obtain a proper title, and the only effect of his claim by reason of his negotiations with the deceased grantor, or by reason of the purported conveyance from said beneficiary, is to cloud plaintiffs' title. And the decree ordered, adjudged, and decreed that the title to said lot is quieted in the plaintiffs; that the defendants and each of them, and all persons claiming by or through them, or either of them, are estopped from having or claiming any interest or title in the said lot adverse to the claim and title of the plaintiffs; that the cloud created upon plaintiffs' title by the claim of the defendants is removed and the deed executed by the beneficiary, Albert H. Cummings, to the defendant, William G. Challas, is declared to be a nullity. From this decree the defendants appeal.
From the evidence presented in the trial of the case it appears that the defendant, William G. Challas, claims that, in November, 1935, he made an agreement with A.H. Cummings, the grantor in the deed to plaintiff trustees, to purchase the said property here involved for the sum of $700, and was to be given possession on January 1, 1936; that, as part of said purchase price, he paid said Cummings $50 in two separate checks of $25 each, on January 4 and January 7, 1936, respectively, and turned over to said Cummings the rent of said premises for the months of January, February, and March, 1936, in the sum of $35, leaving a balance of $615 of said purchase price unpaid. It further appears from the evidence that about the time of the death of said A.H. Cummings the said Challas talked to the plaintiff, Stanbery, in reference to his alleged purchase of said lot from Cummings. The defendant, Challas, alleges that this conversation took place before the death of Mr. Cummings, while the plaintiff, Stanbery, states that he had no such conversation with the said defendant until after the death of Cummings. Following this first conversation between the defendant, Challas, and the plaintiff, Stanbery, it appears that there were *Page 415
some further negotiations in which Challas was told that the trustee had a better offer for the property than the price which Challas claimed he had purchased it for, and there was some discussion as to whether it would be possible, in any event, for the trustees to sell the property. Following these conversations, the defendant, Challas, took the matter up with Albert H. Cummings, one of the beneficiaries of the trust created in the deed, and, on the 25th day of March, 1936, said Challas and Cummings entered into a written agreement which, after reciting the purchase of the property by Challas from A.H. Cummings, and that the said Albert H. Cummings was desirous of carrying out the said sale made by A.H. Cummings, insofar as it was within his power to do so, proceeded to state that said Albert H. Cummings had executed a quitclaim deed conveying to Challas all of his right, title, and interest in the property, with the understanding that Challas should pay to the persons entitled to receive the same the balance of $615 due on the purchase price, to the end that one-half thereof should inure to the benefit of said Albert H. Cummings. On the said day, March 25, 1936, said Albert H. Cummings and Alberta E. Cummings, his wife, executed a quitclaim deed by which they quitclaimed to said Challas all their right, title, and interest in the said property.
It appears to be the contention of the defendants that, because of the alleged contract made by William G. Challas with A.H. Cummings, for the purchase of said property from Cummings for the sum of $700, and the payment of a part of the purchase price thereof, and by the quitclaim deed executed by the beneficiary, Albert H. Cummings and his wife, and the contract executed by the beneficiary, Albert H. Cummings, the defendants have acquired a title and interest in the property, as against the plaintiff trustees, which precludes the trustees from the relief which they are seeking in this action.
As we gather from the appellants' argument, it is their claim that the deed executed by A.H. Cummins to the plaintiffs as trustees vested a one-half interest in the real estate belonging to the trust in the beneficiary, Albert H. Cummings, and that, under section 10042 of the 1935 Code, which provides that "every conveyance of real estate passes all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used", the quitclaim deed executed by Albert H. Cummings and his wife to the appellant, Challas, conveyed *Page 416
the vested one-half interest of said Albert H. Cummings to the appellant, Challas. The contract which Challas claims to have made with A.H. Cummings, the grantor in the deed to the trustees, however, was not for the purchase of a one-half interest in the property, and the tender which the appellant made in court was not a tender of the purchase price for the one-half interest of the beneficiary, Albert H. Cummings, but was a tender of the balance of the $700 purchase price for the entire fee, including the interest of the other beneficiary, Lewis B. Cummings. Moreover, the testimony of the defendant, Challas, clearly indicates that the contract which he claims to have made with A.H. Cummings, the grantor in the deed to the trustees, was for the purchase of the entire lot, and that the tender of the balance of $615 which he made upon the trial of the case was not intended to be binding upon him unless and until he should obtain a good title in fee to the said lot.
[1] It may be conceded that, under the provisions of section 10042 of the 1935 Code, above referred to, the quitclaim deed executed by the beneficiary, Albert H. Cummings, and his wife to the defendant, Challas, passed all the interest of said Albert H. Cummings in and to the lot in question, but this is of no assistance in determining what interest, if any, said Albert H. Cummings has in said lot at the present time. In this action no question is raised as to the execution of the deed of A.H. Cummings to the plaintiff trustees nor as to the validity of provisions of the deed. The conveyance in said deed was absolute in form, subject only to the terms of the trust. No provision for its revocation was contained in the deed, and no facts have been plead or proved in the trial of this case from which it could be claimed that A.H. Cummings had any right to revoke the trust created by the deed or to enter into a contract for the sale of the said lot to the appellant, Challas. Lewis v. Curnutt,130 Iowa 423, 106 N.W. 914. The defendant, Challas, therefore, acquired no title or interest in the property by reason of his alleged purchase from A.H. Cummings, the grantor in the deed to the trustees.
[2] Under the provisions of the deed executed by A.H. Cummings the trustees were given the absolute management and control ofthe property. After the death of the grantor, and the payment of funeral expenses and perpetual maintenance, said deed provided that the net income from the trust "shall be paid, *Page 417
at such reasonable times as may be determined by the trustees, toAlbert H. Cummings and Lewis B. Cummings." The deed further provided that the trust should terminate at the time the youngest son, Lewis B. Cummings, attained the age of 25 years, "providedthat at that time said grandsons are free from debt, such fact tobe determined by the Trustees; and in the event either of said grandsons are financially involved this trust shall continue as to one or both of said grandsons at the discretion of theTrustees." (Italics are ours.) We think it quite apparent from the provisions of the deed itself that the trust created was in the nature of a spendthrift trust; that it was the intention of the grantor, A.H. Cummings, that the corpus of the trust was to remain intact at least until the youngest grandson, Lewis B. Cummings, became 25 years of age; that, until that time at least, the trust was to be under the absolute management and control of the trustees and the payments of net income therefrom were to be made by the trustees to the said grandsons, Albert H. Cummings and Lewis B. Cummings. We think it equally apparent from the express terms of the deed itself that, at the discretion of the trustees, the trust might be continued as to one or both of the beneficiaries long after the said Lewis B. Cummings attained the age of 25 years, if either of the said beneficiaries was financially involved. The evidence showed that at the time of the trial the beneficiary, Lewis B. Cummings, was 17 years of age. For at least eight years, therefore, the trustees have not only an absolute right, but a duty, to manage and control the trust property. They have a discretion as to when the payments of net income from such property shall be made, but the deed expressly provides that "the net income from the trust shall be paid * * *to Albert H. Cummings and Lewis B. Cummings." (Italics are ours.) Even if it be conceded that, when the trust is finally terminated (and there is no means of determining when that time will arrive), the appellant, Challas, would then be the absolute owner, under the quitclaim deed from Albert H. Cummings, of an undivided one-half interest in the lot here involved, he has no present right and, until the trust is terminated, can have no right to the possession and enjoyment of either the one-half of the net income or of one-half of the corpus of the trust of which Albert H. Cummings was made the beneficiary under the provisions of the deed to the trustees.
[3] Whether it might be possible that, before the grandson, *Page 418
Lewis B. Cummings, attains the age of 25 years, or after that time but while one or both of the beneficiaries are financially involved, circumstances might arise which would make it possible for a court to terminate the trust or authorize a conveyance of the trust property, we need not determine, because that question is not presented by this action. The question presented by this action and the relief asked by the petition is that the trustees be decreed to be the owners in fee simple of the title to the property, subject only to the provisions of the deed conveying it to them. We are well satisfied that the defendants, or either of them, acquired no right or interest in the lot here involved by reason of the alleged purchase from A.H. Cummings, the grantor in the deed to the trustees. We are equally well satisfied that neither the written agreement entered into between the beneficiary, Albert H. Cummings, and the defendant, William G. Challas, nor the quitclaim deed executed by said beneficiary and his wife to William G. Challas can in any way affect the rights of the trustees in said property, as provided in the deed conveying it to them. The trustees are given the right and are burdened with the duty to exercise the absolute management and control of said property in accordance with the terms of the trust created by the deed. The trust created being in the nature of a spendthrift trust and evidencing an intention on the part of the grantor that neither the income nor the corpus shall be subjected to claims of any person or persons other than the beneficiaries until after its termination, no person or persons other than the beneficiaries can acquire any right, as against the trustees, to all or any part of the net income, or as to the possession, enjoyment, management or control of the trust property or any part thereof, as long as the trust continues in existence. We are not prepared to say, however, that the beneficiaries have no present right or interest in the trust property that would pass to a grantee in a deed from them, or that, as held by the trial court, the quitclaim deed executed by the beneficiary, Albert H. Cummings, to the defendant, William G. Challas, is a nullity. What right or interest in the property, after the termination of the trust, may or may not have passed to the defendant, William G. Challas, under the quitclaim deed, involves the rights of Challas against the beneficiary, Albert H. Cummings, and not any right or interest of Challas as against the trustees. Insofar as the decree of the trial court holding the quitclaim deed to be *Page 419
a nullity could be said to be an adjudication that Challas would have no right or interest in that part of the trust property, that may vest absolutely in the beneficiary, Albert H. Cummings, after the termination of the trust, we think the decree should be modified, because that was not an issue in this case. What right, if any, said Challas may have to recover the payments made by him from the estate of A.H. Cummings, or what rights, if any, said Challas may have against Albert H. Cummings, when and if said trust is terminated, we do not here consider or determine.
With the modification above suggested, the decree of the trial court is affirmed. — Modified and affirmed.
HAMILTON, C.J., and KINTZINGER, PARSONS, RICHARDS, and SAGER, JJ., concur.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/7247163/
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Sweet, D.J.
Plaintiff Olaf Sööt Design, LLC ("OSD" or the "Plaintiff") has moved for leave to amend its Complaint, pursuant to Federal Rule of Civil Procedure 15, to add a claim of willful infringement and a prayer for relief of enhanced damages against Defendants Daktronics, Inc. and Daktronics Hoist, Inc. ("Daktronics" or the "Defendants").
*397For the reasons set forth below, Plaintiff's motion is granted.
Prior Proceedings
On June 25, 2015, Plaintiff brought this action alleging patent infringement as to U.S. Patent No. 6,520,485 ("the '485 Patent"). Background detailing the alleged '485 Patent infringements, this Court's claim constructions, and the denial of Defendants' summary judgment motion can be found in prior opinions of the Court. See Olaf Sööt Design, LLC. v. Daktronics, Inc., 220 F.Supp.3d 458, 462 (S.D.N.Y. 2016), reconsideration denied, No. 15 Civ. 5024 (RWS), 2017 WL 2191612 (S.D.N.Y. May 17, 2017). Familiarity is assumed.
On September 13, 2017, Plaintiff moved to amend its Complaint, which was heard and marked fully submitted on October 18, 2017.
Applicable Standard
Federal Rule of Civil Procedure 15(a) provides that leave to amend shall be "freely give[n] ... when justice so requires." Fed. R. Civ. P. 15(a)(2). "Generally, '[a] district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.' " Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) ). Where, as here, a motion for leave to amend is brought after the time period for amending pleadings has expired pursuant to a court's Scheduling Order, however, Rule 16(b)'s more stringent "good cause" standard, which is based on the "diligence of the moving party," must be "balanced against" the most "lenient standard under Rule 15(a)." Id. at 334 (quoting Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003) ); see Fed. R. Civ. P. 16(b)(4).1
Tension between the mandates of Rules 15 and 16 has been noted by courts in this circuit, and fulfilling both requires considering, as relevant here, affording justice to a plaintiff, a plaintiff's good cause and diligence in seeking the amendment, and potential prejudice to the defendant.2 See Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., 304 F.R.D. 170, 176 (S.D.N.Y. 2014) (analyzing the Second Circuit judicial landscape). No one factor is dispositive, and "a district court has discretion to grant a motion to amend even where the moving party has not shown diligence in complying with a deadline for amendments in a Rule 16 scheduling order." Id.; see also Kassner v. 2nd Ave. Deli., Inc., 496 F.3d 229, 244 (2d Cir. 2007) ("The district court, in the exercise of its discretion under Rule 16(b), also may consider other relevant factors including, in particular, whether allowing the amendment of the pleading at this stage of the litigation will prejudice defendants."); Castro v. City of N.Y., No. 06 Civ. 2253 (RER), 2010 WL 889865, at *2 (E.D.N.Y. Mar. 6, 2010) ("[B]oth Rules should be considered simultaneously, with of course, the plaintiff's diligence considered as the primary factor.").
Plaintiff's Motion to Amend is Granted
Plaintiff seeks leave to amend its Complaint to add a claim for willful infringement.
*398Both sides present arguments of some merit.
In opposition, Defendants contend that Plaintiff's motion is after the parties' agreed-to scheduling order, that because Plaintiff did not act diligently in asserting its new claim good cause has not been shown, and that Defendants will be prejudiced by the amendment. Defendants point principally to discovery documents Plaintiff received back in March and June 2016 that contained file histories of Defendants' prosecution of patents Defendants had acquired from a third-party company, Hoffend (the "Hoffend Patents"). Defendants note that the Hoffend Patents' prosecution documents cited the '485 Patent as a reference, that Plaintiff has previously cited documents by Hoffend referencing the '485 Patent both to this Court and the U.S. Patent and Trade Office ("USPTO"), and that Plaintiff failed to follow-up on investigating file information publically available on the Hoffend Patents or asking questions about the Hoffend Patents to Defendants' 30(b)(6) witness.3
Plaintiff respond that its motion is timely because Plaintiff only recently acquired the factual support for its willful infringement claim due to misleading and delayed discovery disclosures on the part of Defendants. According to Plaintiff, the Hoffend Patents documents only indicate that Hoffend, not Defendants, had knowledge of the '485 Patent, and Plaintiff did not think it necessary to investigate further after relying on Defendants' discovery responses that Defendants first learned of the '485 Patent in the instant litigation and had disclosed all relevant and responsive documents. Plaintiff contends it was only after receiving later document disclosures from Defendants starting in June 2017, disclosures that contained communications between Defendants and the USPTO, that Plaintiff unearthed evidence of Defendants' knowledge, making Plaintiff's proposed claim actionable.
To a certain degree, Defendants' argument against Plaintiff's diligence carries weight. Plaintiff received the Hoffend Patents from Defendants in mid-2016 and those documents referenced the '485 Patent. (See, e.g., Declaration of Phoenix S. Pak dated September 13, 2017 ("Pak Decl."), Ex. 22 at 3.) With knowledge of such documents, a litigator could have begun investigating the prosecution history of those patents herself. At the same time, Defendants' representations during the discovery process could reasonably have led Plaintiff to conclude additional fact-finding as to Defendants' patent prosecution history and Plaintiff's willfulness claim would be unnecessary-for example, when Defendants represented in mid-2016 that they had produced all documents responsive to Plaintiff's discovery requests, including any documents related to Defendants' patent applications and Defendants' prior knowledge of the '485 Patent, representations which were proven incorrect in the aftermath of a motion to compel granted in April 2017. (See Pak Decl., Ex. 42; Dkt. No. 128.) Given the circumstances, Plaintiff filed the instant motion to amend *399within a few months after receiving and reviewing relevant patent prosecution file histories from Defendants in June 2017 and, as such, the failing to perform particular research or in not asking particular questions of Defendants' 30(b)(6) witness do not establish a lack of diligence.4 See Perez v. MVNBC Corp., No. 15 Civ. 6127 (ER), 2016 WL 6996179, at *4 (S.D.N.Y. Nov. 29, 2016) (finding "no lack of diligence" by plaintiffs, even when the sought information was publically available, given "potential confusion" from the publically available information and the lack of defendants' response to discovery requests); Soroof Trading Dev. Co., Ltd. v. GE Microgen, Inc., 283 F.R.D. 142, 148-49 (S.D.N.Y. 2012) (finding diligence and allowing amendment filed two months after facts allegedly learned during discovery); Enzymotec Ltd. v. NBTY, Inc., 754 F.Supp.2d 527, 537 (E.D.N.Y. 2010) (finding good cause and no lack of diligence when plaintiff "may have suspected" that defendant breached an agreement but only filing motion to amend when its cause of action was "based on factual allegations, not factual speculation").
In addition, the Second Circuit has "left open the possibility that amendments could be permitted even where a plaintiff has not been diligent in seeking an amendment," such as considering whether the amendment would have result in undue prejudice for the defendant. Fresh Del Monte Produce, Inc., 304 F.R.D. at 175 (quoting Castro, 2010 WL 889865, at *2 ). Prejudice can exist if an amendment would "(1) require the defendant to expend 'significant additional resources' to conduct discovery, or would (2) 'significantly delay' the resolution of the dispute." Scott v. Chipotle Mexican Grill, Inc., 300 F.R.D. 193, 200 (S.D.N.Y. 2014) (quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993) ). Courts are more likely "to find prejudice where the parties have already completed discovery and the defendant has moved for summary judgment." Werking v. Andrews, 526 Fed.Appx. 94, 96 (2d Cir. 2013). However, "even if discovery were prolonged, 'the adverse party's burden of undertaking discovery, standing alone, does not suffice to warrant denial of a motion to amend a pleading.' " A.V. by Versace, Inc., v. Gianni Versace S.p.A., 87 F.Supp.2d 281, 299 (S.D.N.Y. 2000) (quoting United States v. Cont'l Ill. Nat'l Bank & Trust Co., 889 F.2d 1248, 1255 (2d Cir. 1989) ) (considering a Rule 15 motion to amend).
Defendants aver that to grant Plaintiff's motion will prejudice them, necessitating additional discovery and prolonging the disposition of this action. While amending the Complaint at this point in the litigation's lifecycle is later than preferable, no trial date has been set, and the interrelation of the old claim and a new related, narrow claim to this patent case indicates *400that additional discovery, while warranted, will not prolong the proceedings significantly. See Estrada v. Ctny. of Nassau, No. 05 Civ. 1821 (LDW) (ARL), 2010 WL 2218802, at *1 (E.D.N.Y. May 28, 2010) (recounting how the court previously granted a motion to amend and add a new claim two week before trial, while summary judgment motion was under consideration, and had allowed limited discovery "exclusively with respect to the amendment"). As such, any prejudice is outweighed by the interests of justice in having these related claims tried together. See Ansam Assocs., Inc., v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985) (affirming denial of motion to amend post-discovery while a motion for summary judgment was under consideration when the proposed claims "allege an entirely new set of operative facts"); State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981) (reversing denial of motion to amend and finding that an amendment would cause delay, but not undue prejudice because "amended claim was obviously one of the objects of discovery and related closely to the original claim" and no trial date had been set).
Conclusion
Plaintiff's motion to amend its Complaint is granted. The parties will meet and confer with respect to any additional discovery necessary to the issue of willful infringement and the schedule for any further motions, including the presently scheduled motions in limine , and for trial. Any unresolved issues will be the subject of the pretrial conference scheduled for October 31, 2017, at noon, or at such adjourned date as the parties may agree upon.
It is so ordered.
While the scheduling order in this case did not include a specific deadline to amend pleadings, (see Dkt. No. 30), the parties' Joint Discovery Plan set the date that parties could amend pleadings no later than two weeks after the Court's decision regarding claim construction, resulting in a deadline of November 9, 2016. (See Dkt. Nos. 29 & 72.) The parties do not appear to dispute this is the operative deadline.
Defendants neither argue nor have shown futility or bad faith with respect to Plaintiff's instant motion or proposed amendment. See, e.g., Fresh Del Monte Produce, Inc., 304 F.R.D. at 178.
Defendants' contention that Plaintiff had in October 2016, in a separate inter parties review ("IPR") proceeding, argued to the USPTO that Defendants knew of the '485 Patent does not speak to the issue here. (See Defs.' Mem. in Opp. ("Defs.' Opp.") at 1, 4.) The evidence presented there addressed Hoffend's knowledge and infringement of the '485 Patent, but the argument by Plaintiff at that time was not that Defendants knew of the '485 Patent prior to the instant action. The same holds for Plaintiff's previous argument before this Court that "there is strong evidence" that Defendants copied the '485 Patent, which addressed Hoffend's knowledge of infringement, not Defendants' themselves. (See Defs.' Opp. at 4, 8 n.7.) Insofar as Defendants present Plaintiff's briefings to demonstrate Plaintiff's access to publically available files, however, that issue is addressed below.
Defendants principally cite two cases in support of their position, neither of which clearly warrant denial of the instant motion. In Rent-A-Ctr., Inc., v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100 (S.D.N.Y. 2003), the court found the movants had knowledge of their claim back when the original complaint was filed. See Rent-A-Ctr., 215 F.R.D. at 104. Rent-A-Ctr. also did not address more recent Second Circuit authority that direct that "good cause" should not be "the only consideration" a district court should look to when deciding a motion to amend. Kassner, 496 F.3d at 244 ; see Rent-A-Ctr., 215 F.R.D. at 103 (discussing only Parker v. Columbia Pictures Indus., 204 F.3d 326 (2d Cir. 2000) ). The factual and legal landscape here is different. In Werking v. Andrews, 526 Fed.Appx. 94, 96 (2d Cir. 2013), the Second Circuit affirmed the denial of a motion to amend and found that the plaintiff had "sufficient notice of the relevant facts" far earlier and that the proposed amendment would have "changed the entire nature of the case by turning it into a class action" and adding Monell claims. Id. Plaintiff's proposed amendment is no such radical departure from the claims already present.
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01-03-2023
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07-25-2022
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https://www.courtlistener.com/api/rest/v3/opinions/3433060/
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The plaintiff claims that she worked in the city hospital in the city of Des Moines under an oral agreement of employment, beginning work at 5:30 in the morning, cleaning offices until 1. MUNICIPAL 7:30, then working two hours at noon, and CORPORA- beginning again at 5:30 in the evening, and TIONS: working until 8:30. In addition to this, she officers and worked for two weeks from 8:30 to 11:30 P.M., employees: making a total of 1,703 hours of extra work. By extra the custom for extra work in Des Moines, compensa- plaintiff claims that she is entitled to time tion: and a half for overtime, or 47 1/2 cents per essential hour. She claims that 8 hours was a regular condition. day's work.
Plaintiff further claims that the defendant city delegated *Page 99
to the board of trustees and superintendent of said hospital full power to control and superintend all affairs pertaining to said hospital, and all functions which were properly ministerial and administrative; that the board of trustees and superintendent employed all help and labor in operating the same; and that she had an oral agreement with the superintendent of the hospital to do this work.
In the second count of her petition she alleges that she performed said extra work at the request of and under an oral agreement with the superintendent; that said extra work was outside of her employment each day as housekeeper, and was a different kind of work, and made absolutely necessary on account of the scarcity of help; that said extra employment was within the scope of authority delegated to said superintendent; and that plaintiff was entitled to recover on a quantum meruit, as well as by contract of employment: and she demands judgment.
Defendant, answering, denies generally each and every allegation of the petition regarding overtime, and especially pleads Section 48 of Ordinance 1000 of said city, which provides, among other things, that every employee shall receive a stated salary and stated compensation, to be fixed by the city council, when not fixed by law; that said salary shall be in lieu of all fees or compensation; and that no person shall receive for his own use any fees or other compensation for his services as such officer or employee. Defendant denies the indebtedness, because it is provided by city ordinance that all contracts of employment shall be evidenced by an affirmative action on the part of the city council in the adoption of the proper resolution. It says that no resolution was ever adopted employing the plaintiff for any extra services.
Replying, the plaintiff alleges that Ordinance 1000, above referred to, was repealed before the employment of plaintiff; that the defendant and its officers and the superintendent of the hospital have continuously employed workmen and other labor at said hospital without regard for said ordinance; that they employed plaintiff to do extra work for extra pay for hours not included in her employment as housekeeper, all of which was well known to the defendant city; and that it is now *Page 100
barred from denying payment, because it received the benefits of her labor, and it is estopped further for the reason that the superintendent, by actual consent of the city, was given authority to hire all help for the hospital, and so acted. Plaintiff further alleges that the superintendent had authority to fix the price of labor, aside from the authority given by Ordinance 2651, Section 4.
The case was tried to a jury; and at the close of plaintiff's evidence, defendant filed a motion for a directed verdict, consisting of nine grounds. This was sustained, and judgment was rendered against the plaintiff for costs. Thereupon, plaintiff filed a motion for new trial, which was later overruled.
It appears from the case made by the plaintiff that the hospital of the defendant was in charge of one Miss Addington. To a full understanding of the case, it becomes quite important to know just what this agreement was. Plaintiff testifies as follows:
"Miss Addington hired me as a housekeeper; and on the 5th of December, 1919, she said she wanted me to come in the morning, and be there before 6 o'clock. She asked me, would I go and clean her office, the doctor's office, and the reception room; and I had it to sweep and clean out; and I could go and get my breakfast, and come back and dust, and have it ready for her at 8 o'clock. She said she wanted me to have it all done before she got there. She said she wanted me to have it clean; and there was no one to do it, only me. I was living on Dean Avenue at that time. I asked her about that, and she said, `Well, it has got to be done, Mrs. Connolly; that is all.' About the time I was to begin work, I told her I had to be there very early; and I was there at 5:30 every morning. At this work of cleaning, I was to work from 5:30 to 8:30 at night; I was not cleaning all day. I worked at the cleaning from 5:30 in the morning until 7 o'clock in the morning; and after the cleaning I would start then at 1 o'clock and work until 2; and then again I would start at 5 o'clock in the afternoon and work at the cleaning until 8:30. At this I worked every day in the week, Sundays and all. I washed dishes until way after 9 o'clock at night. The reason I did this extra work was because they could not get help. I worked at sewing for two weeks in January, commencing *Page 101
after I got done with my work at 8:30 P.M., and I was there until after 11. During all this time that I was doing the extra work, I commenced at 5:30 in the morning, and worked until 7:30 o'clock A.M., then worked 2 hours extra in the middle of the day, and then commenced at 5 o'clock, at the regular quitting time. I put in 3 hours' extra work then. Now when I commenced this work, and while I was doing this extra scrubbing and cleaning, I talked with Miss Addington about it and about the pay, — for who would pay; and she said, `The work has got to be done, and it will have to be paid.' She said, `The city dads know what they are up against,' — that is the way she answered me. During all of this time, I was receiving $75 a month."
The husband of the plaintiff testifies that the superintendent Addington told him, in the conversation, that "the rule is time and a half for overtime;" and he said, "That makes 47 1/2 cents an hour." She said, "I am willing to pay that." He said that, as long as she could stand it, he wouldn't object to it. She said she would have to go ahead, and the city would have to pay her for extra time. This is simply the statement by Miss Addington to him. He says he did not hear the original employment and contract between his wife and Miss Addington.
The sum total of the plaintiff's claim, briefly stated, is that she was hired at the hospital at a fixed compensation of $75 per month, under the facts heretofore recited, taken from her testimony.
Many legal questions are discussed in this case, but those necessary to its decision are few. The hospital in question was bought and owned by the city of Des Moines. The control and management thereof, however, were under the board of trustees, who were elected by direct vote of the electors of the municipality. Miss Addington was superintendent thereof. The general power, control, and management of said hospital were primarily in the board of trustees. It is so provided by statute. The plaintiff claims, however, that she had a contract with the city of Des Moines to labor for it, under the terms of which she was paid $75 a month for her services. Without requoting her duties, as shown by her testimony heretofore set out, we are met at the threshold of the case with the claim on her part that *Page 102
8 hours was a day's work, and that for all overtime she worked beyond 8 hours each day, she was entitled to extra compensation. She had no contract or agreement with any other person or officer representing the city, than with Superintendent Addington.
We have too often held — without stopping now to cite the authorities — that one who attempts to deal with a municipality must deal at arm's length. They are bound to know the limitations on authority of the officers and employees of 2. MUNICIPAL the city, and deal with them at their peril. We CORPORA- have so announced this rule in Citizens' Bank of
TIONS: Des Moines v. City of Spencer, 126 Iowa 101, officers and and numerous other cases subsequent and prior employees: thereto. It was therefore incumbent upon the powers in plaintiff to establish that the superintendent general. of the hospital had power to make a contract for extra work for which she claims compensation. The evidence does show that she was employed to do the work described by her in her testimony at $75 a month; and from her description of the work that she was to do, as shown by her testimony, it is, to say the least, a justifiable conclusion that it was to cover all the work she did. This being so, of course she would not be entitled to maintain a claim for extra compensation.
Passing this question, we are next to determine, under the facts in the case, whether there is anything to show that the superintendent had power to make a contract with her for compensation for extra work. If the evidence does not show that this power existed, then of course she cannot maintain such action.
The general rule is well settled that, except where there is a special agreement therefor with one authorized to make such an agreement, no extra pay can be recovered for work outside of regular hours. Subject to the same exception, a municipal employee cannot recover extra pay for services outside of his duties. Gathemann v. City of Chicago, 263 Ill. 292
(104 N.E. 1085); Woods v. City of Woburn, 220 Mass. 416 (107 N.E. 985);Vogt v. City of Milwaukee, 99 Wis. 258 (74 N.W. 789); Robinson v.City of Perry, 35 Okla. 475 (130 P. 276); Luske v. Hotchkiss,37 Conn. 219 (9 Am. Rep. 314); McCarthy v. Mayor, 96 N.Y. 1 *Page 103
; Grady v. City of New York, 182 N.Y. 18 (74 N.E. 488); Tyrrellv. Mayor, 159 N.Y. 239 (53 N.E. 1111); Davis v. Detroit BoatWorks, 121 Mich. 261 (80 N.W. 38); Bartlett v. Street R. Co. ofGrand Rapids, 82 Mich. 658 (46 N.W. 1034). It is shown by this line of authority that, before the plaintiff is entitled to recover herein, she must not only show the work performed, but must show that she had a specific agreement with the superintendent that she was to be compensated for the extra work, and that the superintendent was authorized by the city to so contract with her. As to evidence that the superintendent was authorized to so contract, the record is wholly silent. She drew her pay of $75 a month regularly from the city treasurer, and made no complaint to the city and no request to any of the city officers to pay her more than the stipulated stipend. She does not show at any place in the record that there was any authority whatever given to the superintendent of the hospital to contract to pay for extra time; and failing in this respect, her case must fail.
Further than this, the city of Des Moines had in full force and effect, at the time of her employment and ever since, Ordinance 1000. Section 48 of this ordinance provides that every city 3. MUNICIPAL officer, whether elected or appointed, and every CORPORA- employee of the city, shall receive a salary or TIONS: stated compensation, to be fixed by the city officers and council, when not fixed by law. Said salary or employees: compensation shall be in lieu of all fees or compensa- other compensation, and no such officer or tion: employee shall receive for his own use any fees ordinance or other compensation for his services as such require- officer or employee other than the salary or ments. stated compensation fixed by the city council.
Part of Ordinance 1563, referred to and set out, so far as material herein, referring to the powers and duties of the city council, says:
"It shall make or authorize the making of all contracts, and no contract shall be binding or obligatory upon the city unless either made by ordinance or resolution adopted by the council or reduced to writing and approved by the council or expressly authorized by resolution adopted by the council. All superintendents of the department and officers are the agents *Page 104
of the council only, and all their acts shall be subject to review and to approval or revocation by the council."
The plaintiff alleges that she is a resident of the city of Des Moines; and being such, and in the employ of the city, she is bound to know the contents of these ordinances, so far as they affect her contract; and they are binding on her.
There is some evidence from some persons who were at one time on the board of trustees that they authorized the superintendent to employ the help; but there is no showing of any kind that they authorized the superintendent to make a contract to pay extra compensation to such help.
Under the status of the record as we have it before us, we are satisfied that the plaintiff did not make out a case to go to the jury, and therefore the action of the district court in directing a verdict for the defendant was the only thing that could be done, under the circumstances. — Affirmed.
FAVILLE, C.J., and EVANS and ARTHUR, JJ., concur.
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I. Appellant was tried and convicted in the court below of the crime of receiving and concealing stolen property, and sentenced to imprisonment in the penitentiary at Fort Madison for a period of not to exceed five years. The transaction 1. RECEIVING upon which the prosecution is based is the STOLEN purchase and sale of a Ford coupé, which PROPERTY: the evidence shows was stolen from one William evidence: L. Campbell, at Burlington, Iowa. The automobile sufficiency. was purchased from one George Crabbe, who resided at Galesburg, Illinois. Appellant resides at Burlington, and is engaged in the business of repairing automobiles and the purchase and sale of used cars. He is a skilled mechanic, and appears to have had considerable experience as an expert automobile repair man.
The evidence discloses that the automobile in question was *Page 1091
stolen, and the number on the engine changed, and that it was sold by appellant to one Maude Miller, who, in turn, and by the aid of appellant, sold the same to one Doctor Musser, of Ottumwa.
George Crabbe was an automobile salesman with whom appellant was well acquainted, and with whom he had had other transactions. The evidence also shows that appellant purchased another stolen Ford coupé of Crabbe, on which the numbers were also changed. It appears that appellant had the necessary tools for changing the numbers upon Ford engines.
The insufficiency of the evidence to sustain the conviction is vigorously asserted by counsel, and much reliance is placed upon this contention for reversal. We shall not set out or review the evidence in detail. We have examined it with care; and, while circumstances are largely relied upon by the State to sustain the conviction, we are satisfied that the court properly submitted the issue of guilt to the jury. Appellant's conduct in the matter of registration and the manipulation of number plates, together with the testimony of Crabbe that he saw him change the number on a Ford engine, tends strongly to indicate guilt. The evidence, in our judgment, was sufficient, if believed by the jury, to justify a conviction. This being true, the verdict will not be disturbed by this court. State v. Huckelberry, 195 Iowa 13.
II. It is asserted, also, in the brief of counsel, that the county attorney made comments and unwarranted statements in regard to transactions not properly in evidence.
No reference is made, in the assignment of errors or the brief, to the record where the comments and alleged unwarranted statements made by the county attorney may be found. The suggestion in the motion for new trial is that 2. CRIMINAL they were made in argument to the jury. No part LAW: appeal of the argument is set out in the record, nor and error: does it appear therefrom that timely objection scope of was made to the alleged misconduct of the county review: attorney, or that any exception was preserved to misconduct the ruling of the court thereon. of county attorney. *Page 1092
We find nothing in the record from which we can determine whether the county attorney was guilty of prejudicial misconduct or not.
III. The court permitted the State to introduce evidence of the purchase from Crabbe of another stolen Ford coupé, and also that 3. CRIMINAL the engine numbers thereon were removed, and, as LAW: in the case of the Campbell car, another number evidence: substituted. Error is predicated on the other admission of this testimony. similar offenses.
The testimony was clearly admissible, as bearing upon the question of appellant's knowledge of the fact as to whether the car was stolen, and for the purpose of showing a course of conduct indicating intent. State v. Albery, 197 Iowa 538; Statev. Scott, 136 Iowa 152; State v. Boyd, 195 Iowa 1091; State v.Wright, 192 Iowa 239; State v Weaver, 182 Iowa 921.
It is further contended by appellant that the evidence was not only inadmissible, but that, as a whole, it was insufficient to justify a conviction, for the reason that the State failed to prove that either of the cars was in fact stolen.
We think this contention is without merit. The evidence does show that the cars were stolen, and the jury could not have found otherwise. The details were not gone into; but the numbers were evidently changed, whether by appellant or not, to render identification impossible.
IV. The contention of appellant that the verdict was contrary to law and the instructions, and that it should have been directed in his favor, is answered by what we have already said.
It is, however, further argued that the verdict was the result of passion and prejudice on the part of the jury. Nothing in the record tending to sustain this theory of appellant's is pointed out, and a careful reading thereof fails to disclose anything tending to indicate that the jury was so influenced.
V. Appellant requested the court to instruct the jury that, if it found from the evidence that the Campbell car was in the possession of Crabbe, and that it was delivered by him to appellant, the possession thereof by said Crabbe would warrant appellant, in the absence of any showing to the contrary, in believing that Crabbe was the owner thereof, and that appellant *Page 1093
had a right to rely upon the presumption that such was the case, together with his knowledge that Crabbe was a dealer in used cars.
No proper objection, as will presently appear, was preserved to the refusal of the court to give this instruction; but, in any event, the charge of the court clearly informed the jury of the elements of the crime, and of what was necessary to convict; and the refusal to give the instruction, even if it were a proper one, could not have been prejudicial to appellant.
Complaint is also made of Paragraph 7 of the court's charge to the jury. The only exception noted in the record to the instructions is in Paragraph 6 of the motion for a new trial, and is as follows:
"Because the court erred in giving the Instructions No. 1 to 12 inclusive, on its own motion, and the court erred in refusing to give the Instruction No. 1 asked for by the defendant."
The exception does not point out the part of the instructions excepted to, nor the grounds of such exceptions, as is required by Section 11495 of the Code of 1924. This section has been repeatedly construed by this court, and 4. CRIMINAL exceptions noted in the language quoted, held LAW: trial: insufficient. Anthony v. O'Brien, 188 Iowa 802; instruc- Gibson v. Adams Exp. Co., 187 Iowa 1259. tions: Waiving, however, the failure of appellant to insufficient properly except to the instructions, we are free exceptions. to say that we think the instruction faulty, if at all, only for the failure of the court to make it somewhat more explicit. It is substantially correct, and could not have misled the jury.
We find no error in the record, and the judgment of the court below is — Affirmed.
FAVILLE, C.J., and De GRAFF and VERMILION, JJ., concur. *Page 1094
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OFFICE OF THE AlTOtiNEY GENERAL OF TEXAS
AUSTIN
Honorable Shelby X. Long
Aarirtant Dirtriat Attorney
Beaumont, Texar
Dear Sir; opinion Ro. O-4 58
Rer Whether OP$\ et an independent
rsuant to a tax deed
e than the 8tatutox-y
of redemption.
U8 on 8 ntlmber: of pleoer
Xo other tax- sge~eles
08 to the suit and they
owaloaing thi iian, ‘ikeout-
ty sbld at a Sherlff’r eale,
*The attorney for the lndepsndent school Dietriot
In Port Arthur 08m Into oourt and filed a mation ln tha
ori&nal atit arkiag the Di8triQt UouTt to order the
sheriff to 8611 thio property for the Port Arthur Inde-
pendent School Dietrlct at a Sheriff’8 8ele3 ueld order
: Honorable Shelby K. LOW, Page 2
was delivered to the Sheriff, and the Sheriff quea-
tloned his authority to sell the property a second
tine under the original executions; therefore, it was
referred to this office. I advised the Sheriff, as
well aa the District Judge, that in my opinion the
Sheriff has no authority to sell this property at a
Sheriff's sale after Its havin& been parchased at a
Sheriff's sale by tha Port Arthur IndefiendentSchool
District; therefore, the District Judge directed the
Sheriff to hold his order in abeysnce until further
orders of the court. This question beins an lnterpre-
tation of the statutes, I am asking for an optiion
from your department for the proper procedure the In-
dependent school dlatrict should follow in selling
property alter it has been held by them aa purchasers
of the Sheriff's sale and foreoloaure of the tax lien
and execution thereunder znd held for a tit-eexcoedlng
the statutory requirements, to-wit: tvo years and six
ilonths."
Article 2791 of the Revised Civil Statutes of Texas pro-
tides :
' * + l provided that in the enforced collection
of taxes the Board of Trustees shall perfom the du-
ties vhich devolve In such cases upon the aity council
of an Incorporated city or tovn, the president of the
Bcmd of Trustees shall perform the duties which de-
volve in such cases upon the mayor of an lna6rporoted
city or tovn, and the county attorney of the county in
which the Independent school district is located shall
perform the duties which In such cases devolve upon
the city sttorney of an Incorporated city or toarj:
under
the provisions of lsw applicable thereto. l l l
We have been unable to find any case conatru the provisions of
the st%Wequoted above.
Article 7337 of the Revised Civil Statutes of Texas
provides:
"Any Incorporated city OP town or school district
shall hsve the right to enforce the oollectlon of de-
llnquent taxes due it under the provlaFona of thla
chapter."
Honorable Shelby X. Long, page 3
Artlole 7343 OS th6 Revised Civil Statutes provldesr
v l s l Independent school diatrlats may collect
thelr,delinquent taxes as above provided for oltiea
and towns, the school board perfomlng the duties a-
bove described for the eovernlng body of oltlea, and
the president of the school board perEomlng the du-
ties above pprssorlbed for the mayor or’other presiding
0friOt3r. The school board may, vhen the delinquent
tax lists and other reoorda are properly prepared and
ready for suits to be filed, lnetruut the county attor-
ney to file sald sulta. Ifthe school board lnstruots
the county attorney to file said suits and ho falls ox+
refuses ta do so vithln slxt$ days the school board may
employ some other *ttorney of the county to file suit.
Thti aouuty Bttorney, or other attorney, filing tax .aulta
for independent school dlstriota, shall be entitled to
the same fees as provided by lav in suita for State and
county taxes. Ho other county officer shall receive any
fees unless servloee are actually performed, and In t&at
8V8nt he shall. only receive such Sees as are nov alloved
hlx by lav for similar aervlcee In civil suits. The em-
ployment of an attorney to file suit for te;xee for oltlee,
towns or Independent sohool dlstrlcts ahall author&e
said-attorney to file said suits, wear to the petitions
and perfoma suoh other acta as are necessary In the ool-
leotlon of said taxoe.
‘All lt%WOf thh3 St6te for the p~~p056 Of OOil6Qt-
ing delirguent.m3tate and county taxes are by this lav
made avtrllabls for, awl vhen Invoked shall be oRplIed
to, the oolleatlon of delinquent tares of cities and
towns and independent sohool districta In so afar as suoh
lava are applloable, ’
From the fact8 submitted by you In your rquest, ifa aon-
olude that the lndep~endent school dlstrlot has proceeded up to the
present time under the rtatutory prooedure authorizing the state
and aounty to bring suits fox delinquent taxes, obtain judgment
therefor and authorlzlng the sale of suoh property, all of vhleh
1s provided in Chapter 10 of Title 122 of the Revised Civil Stat-
utes of the State of Texas.
'honorable Shelby IS, Long, page 4
Chapter 10 of Title 122, I)uprfiB, epeclfloally deals vlth
"delinquent taxes.' The statutes therein founds se8m to be ooa-
plete, within themselves, or by rpeclflo reference to other appll-
aable statutes, ooncernLng the proaedure to be folloved by the
reepeotlve taxiag authorltioe and offlolals oharged vLth the duty
OS aolleotlng itate and county delinquent taxes. In this same
Uuapter is found Artlolee 7337 and 7343, a ra, vhloh, evidently
vexw meant to oonfer the saw rlghtr, prlvi "p eges and make available
the same prooedum for the benefit of oltles, towns and villages,
incorporated under the general lav, as veil a6 upon independent
eohool dlstriots, .lnsofar as the lava for suoh purpose, for the
benefit of the state and tounty, are applicable. If the provl-
slons of Chapter 10 are appliuable to Independent aahool diatrlota
and such districts oan properly avail thenselves of the procedure
therein pyovlded, then ve think Artlole 7328 of said Chapter 10,
supra, v1l.l ansver your question. The caae8 that have arisen in
the.oourte might be of some help in arrlvlng at a oonulusion on
this point.
In Duoloa vs. Harris County, (Co& App.) 298 9. Y. 417,
Barris County sued to reoov8F from Duolos, Dletrlot Clerk, exaess
'sea oharged by him in tax suita flled vith th8 Clerk vhiah suite
me fo~'taxes other than atate and oounty. The lame ‘~88 vhether
the Distrlot Clerk aould charge larger fees in rush suits than he
oould charge Ln regular state and county tax suita. The sourt said8
"In 1895 th8 Legislature ensated a statute mak-
lag provision for oolleotlon of delinquent, eto.,
et&s and cormty taxes; the statute van largely re-
written, and ita provision paada available to oities,
tome and sohool diatriats, in 1897g It was later a-
mended fir various pa??tlaulars, and its present fom
;g2hapte* 10, title 122, artiolea 7X9-795, R. 8.
IA artZole 7337 (o~iglna1l.y emoted in 18%‘) it
Is piovlded thatr
“*Any inoorporated oity or tom or sohool distrlot
&all have the right to enforce tb8 oolleotlon of de-
llnquent taxes due fh under the provisiona of this ahap-
ter.I
*And in artlcrle 7343 (enaoted In 1920 and amended
ln 1923) it is provided, inter alla, that:
“All lava of this state for the pumose of aol-
'lsatlng delinquent state and county taxee are by this
Honorable Shelby X. Long, page 5
lav made a*%lable IQ& and vhen invoked shall. be
applied to,‘the Oolleotlon of delinquent taxes of
altlea and touns and lndepeadant sabool dlstrlota
in 90 fau a8 suoh lava or0 applloable.’
‘Those provlsl~na gave thy authdtlty for t&e
sults~ out of vhtoh this oontrov~rsp arose. The chtlp-
~gGo~dn, bOa8me l~vallable for’ and, having been
1 t must ba apgllad to’ the subjeot matter
in 00 rar a8 relevant.
IR the oaf88of Dill va. City of Rising Star (Corn.. App,)
298 8. W. 41 , it vae held that in view of Article 7363, Articles
7321 wd 733i of the Revised Civil Statutes of Texas are made ap-
pllaable to oltles, 80 that ln an aotlon by the city for delinquent
taxes the ourrent tax roll and d8U.xiquOnt tax list prepared by the
olty Oounoll and aertlfled to as oorrect by the mayor nake a prUa
faote 0~843 as to the Fegularlty of esse8slng and levying the taxes.
In the 0ae.e of City of San Antonlo vs. BOrry, 92 Tex.
119, 48 s. I?. 496, the court oonsldered the pr~vislons oreArticle
7337 (vhlah var~then Artiols 52324, R. da s., 1895, t&.x& seotlon
11 of Lava, 1895, p. 53) and tha oourt ialdr
*Ia our opinlan, Siotlod 11 was not intmded to
take aitay: th0 exmmq authority given to any olty by
apeolal charter to bring an ordSnary ault to r&aover
its taxes. It0 purpors was merely ta authoriza altlOs,
tovna and school dlrtrlots to aooept the bctnefitr of’
th16~.~8Ot, shOuld they me propefl to ~I'OOSde ia tha man-
ller pointed Out theraln. ~+ l l
corporated olty and the 0-t lllcmrlee dlsouesed the enoral pouer
OS an lnoorgtorated oity, tovn, or IiuIepewlmC mhoal tl ttrlot to
manage its tax arraira. We quota from the opl~lonc.
n l * l obviously, this statute (Artiale 7335a)
has speolal appllcatlon to oontraots sntmed into by
Cormisslonerrt Court8 of countlea for aolleotion of
morable Shelby IL. hong, page 6
state and aounty tmsa, and has no beerIn& vhatever
on the right8 of altlsa, towne, and school dlstrlatrr
and other munloipalitlee, tmoept ea a oumlative pro-
vision authorized by artiole 7337, wadingr 'Any ln-
oorporated oltg or tovn or school dlotplot shall have
the right to enforus the colleotloti of delinquent tax-
ea due it uader the provZslone of this ohapter.’ Such
art1010 rar not intended,to take avay t@e authority
given to aitlea, tovne, and +ehools by speclalcbartera,
or othervise, to bring au ordinary suit to reoover
taxea and niake contraota for the asllectlon thereof.
Cities, towns, ad aohool districts have the rfght to
we and be sued, oontreat’and be oontraatsd vith and
donduot and aontrol all of its affairs, particularly
their Slmnoee and taxes.’
In the case of City of South Iioueton VII. Dab&w, (Corn.
~pp.) 120 3. tl. (Sd) 436, t5e oourt held that under the provision8
of Article 7343 the City OS 5outh Houston could contraot vlth an
attorney to collect its delinquent taxes and that in view of the
5pol.Plc limiting provisions of ‘the statute, relating to the com-
aaatlon of rruch attorney and llmltlng his componsatlon to the
A.IQ~ Seer as alloved the oounty attornoy or dlatrlat attorney ln
malts for colleotlon of stats and county taxes” the g&era1 oon-
aludlng paragraph of such statute did not authorize the exeoution
of a oontraot for a percent of the taxes, penaltier and intere8t
aolleoted 88 oontemplated In Artlalb 7335, Revieed Oivl.1 Sktutes
of Tam. The oourt made this observation:
“With referenoa to the language oontalned IR the
conoluding clause of this Article, it may be coWeded
for the purpose of dlaeuasion that such languag& stand-
ing alone, ia ouffloiently broad to bmbraab any.i$uthor-
lty provided by mme other statute for the ampl’oynent
au6 compensation of an ‘attorney for the oolleotlm of
state and county taxes whloh are deliuquent$ but hov- c
ever thla may be, * l + .”
ge of Bell VU. #+mSleld lnde endent Who01 Dls-
trlot, (Cc&? A%. pQ133 Tex. 403, 129 s. Y. (26) i&3, lb MB held-
that the ruling ia the Dabmy oafid, nxpra, YES not ampl.ioable to
oaupensatlon allowed la o&ntraots exeouted by FLUindependent aehool
dintriot tith an attorney to oolleot delioquent taxoa aad that the
provlslons of Artlole ‘T)35-a of the Revised Civil E+QtUte8 OS Texas
vas eppflaable to such aontraota. The oourt said, vlth reierenoe
to Artiole 7343, suprat
xonorable Shelby II;. Long, Fag! 7
‘Artiole 7343, It. $5. 1925, deals speolfioally
vlth the question before un for deolslon. l * *
“Rttfrrrlng baok to the partlons of Artlole 7343
above ab$Led, it vi11 be observed th+t oitler and in-
&gend~.tes~l dlstriots are dealt*vlth separately
Independent sohool distrlotir may lav-
fully o&ract to pay the fees provided by lav ln suits
for state and county ts;nea. * l l
’ l l* By the oonaludlng eentenoe of Artlole
73’13, above quoted, all lavs of thle state for the pur-
pose of collecting delinquent state and county taxes
shall be applied te the oolleotlon of delinquent taxes
of independent school $l)istrlots In so far as such lava
are applicable. * l l
Prom a oon6lderatlon of aald Articles 7337 and 7343,
supra, and the aonstruotlcns plaoed upon them by our ocurts, ve
have no doubt but that an independent sohoal dlstrlot may prooaed
to oolleot its delinqtlent taxes aooordiq to the exlstlng law
provided for the atatb and eaoaty to oolleot their delinquent tax-
It follcws, therefore, that it is our opinion that the avall-
%ie statutory prooedure provided ior the state and oounty in suoh
suits may be adopted and lollcued by an independent sohcal dlstrlot
lnaofar us the fwm? 1s ap lloable to its cvn oolleotlcn. Ub aed no
valid reason v& the pnov Pe&oar o? Artlole 7328 of Chapter 10 of
Title 122, supra, are not applioable and oeuld not be ioUoved by
the sohool distrlot ln your partloular care. The pertinent part of
that statute provldest
’ + at * Zf any of the land thw rold to the State
tr not redeemed vithln the time preaoribed W this lav,
the sheriff shall sell the saute at pub110 cutory to
the higheat bLdde* for aash at the p~4~olpal entramoe
to the oowt house in the oounty vhsrsln the land lies,
after &lvlng notloe of ssle in the manner ncv prb-
aoribed for sale of real estate undelr exeoutlon, prc-
vided when nctioe 15 given by porting notl~es, one of
the oald netloea ahall be ported in a aon8plouous place
Honorable 8helbyiC. Long, Page 8
upon the land to be aold. Said notioe shall oon-
t&n a legal deaoription of the land to be sold; the
date of its purchase by the State, the p~lcs for
which the land vaa aold to the state; that it will
be aold at pub110 outory to the hQheat bidder for
cash, date and plaoe of sale. All aslea contemplated
here- ahall be made In the manner preaaribed for the
#ale of real estate tider exeoutlon, iind tha sheriff
la hereby authorleed, and It Is hereby made hla duty
to rejeot any and all bids for said land vhen in his
judgment the amount bid la insuffioient or Inadequate,
mid In event said bid or bids are rejeoted the land
shall be re-advertised and offered for sale aa pro-
vided for herein, but the aooeptanoe by the sheriff
OS the bid ahalL be oonoluaive and bindIng on the quea-
tlon of the auffloienoy of the bid, and no aatlon shall
be auatalned in any court of this State to set aside
said aale on grounds of the ineufficienoy of the amount
bid and aoaepted. * + *. The sherL.ff aball aend the
amount received from auoh sale to the State Tr’eaauVgr
after deduotlng the amunt of the county t8xe8, interest
and penalty of the county tax vhioh he ahall pay to the
county treasurer . The ahnriff, in behalf of the Stats,
aball exeoute a deed oonvey&? title to said pro#ertp
vhen sold and paid for.’
We t.hZnk the Port Arthur &dependent sohool Dlstrlot o&u be aub-
atituted fop the vord. “a&ate in the applloeble part of the atat-
ute vithout oonaequence, We believe auah proosdure was olearly
oontemplated by the Leglalature In the emaotmmt of Artiolea
7337 and 7343, =Prai
Art~iole 7328, aupra, provide8 for a.aale of property bid
ln and held by the state vhere it haa not been “redeemed vithin.
thb time prescribed by law.” alearly under the holdlng vf the
oourt In the aaae of Hlnlcaon ~8, Lorenao Independent School Dia-
triat, 109 S, W. (26) 1008 (writ of error diamiased) and In vlev
of our Opinion Bo. o-817, Artiole 728&s, R. a. 8. of Texas,
governs the period of time alloved for redemption In inatarmea
au& .a8 are referred to by you in your request.
We have not by our oonolualon, exprsaaed In this opinion,
foIWOlO8ed the poaalbility that an lndepeadent sohool diatriot
might, under authority of Article 2791, m&we, and under tba h+lnga
.
Jionorable Shelby I. hong, peg.8 g
in the ease8 of Olty of San Anton%0 vs. Berry, aupr8, aad XcOal-
lam vu* Olty of Rlohardaoh, supra, properly prooeed to bring tax
aaita for delinquent taxas Ln acme other l.avM aanwr. We do
not find It necessary to oonaidar thla phase of the la*, alnob
under the faota submitted by you, It is evident to ua tbat the
indbpexuJent school dintriot has rlre84 prooeeded under the pro-
vlaiotta a? the lav relating to oolleatioa~ipf state and ootmty
delinquent taxes and that you only dealm to kmv If it la per-
missible, In our oplnlon, to sell the property under the statutory
procedure provided in 5UOh cattba for the aale of property held
W fh# state, by virtue of the school dlatrlot having bid it in
at a tax sale and aftbr having held the same by virtue of a
aheriff~a tax deed over and above th@ statutory rudemption period.
We have not ntentianed Article 7345-b in tbit oplnl&~
It VW enaoted and became effsotive In 1937. We find nothing in
the prcviaiona of that Act indtcatinp; that it vaa intended to ap-
ply in lnstancaa vhere f-1 ju@ent for deV.nquent taxes bad
alrbady been obtained. We think this point cimld be said to be
ruled by the hold.lnS in the ~888 of City of San Antonio OS. Berry,
aupra, vhbh oourt said:
*Aa vaa said in our or&irml statement the tram-
crlpt’ does not ahov when the erlgiDa1 petltlon vaa
filed. l + l It is alear, we tblak, that if the ault
ma brou&t before the statute vaa paaaed, the pro-
owdlnga .vould hot W ,affeated by Lt. Sot only is
there nothing to ahov that it vea inthaded to abrblge
any exiatlng renedi.ea oaaferred by lav l l + but it
ii clear that this saWh3n tt&a to have only a fu$we
e;$;t and uaa not intended to operate upon sxFbtl.116
.c
I-t la our f'urthk+ro inion, therefomi, l&&t Artiole 7345-b 1.8 not
oontrolling nor appPicable to the pmpoaM.on submitted by you.
In your request you have.referred ua to Artiolea 7308
and ‘7313 of Chapter 9 of Title 122 of the Raviaed Cfvil Statutes
of LPaxaavhlch you LndFoate in your opiaion al t ‘be atilloable
to the proposItion eubrpltted by you, Ue do no a”bsllevr~thoae
statutes are applloable. They are a part of Chapter 9 of Title
122 entitlbd %ok taxes on unmadered lands” and deal tith
Honorable Shelby X. Long, Page lo
instances of stmmary rale by the tax oollector. In our opinion
EO. o-683-~, a aopy of vhiah is enclosed, we held that the Tax
Ammssor-Colleator has no power to levy on nor sell real estate
for delinquent taxes exaept after foreclosure of the tax lien
by a court aa provided In Article 7328-A, R. C. S. of Texas. We
think the aonclualon therein expressed is llkewise applicable
to salea of real estate for delinquent taxes by an independent
sohool district.
We gather from the faatm stated in your letter of lnqulry
that the procedure outlined in that part of Article 7328, not
quoted above, vas iu all things followed and that at the aXI8 of
the land for taxes, the sohool district beeame~the purchaser, and
a deed vas made to it by the sheriff in’aaoordence with the statute.
It la made further to appear that elnce the ovner did not redea
the land within the period of redemption, uhlch has long aiuoe ex-
pired, the district nov desires to eel1 the laud. Pour question
is, what is the proper proaedure to be folloved in makiug the sale?
We think this question irr-alearly ansveredSb~c~ha&art
of Article 7328, which ve have f+ully quoted above.
Article only refers to land sold to the State, but which ve have
held also applicable to school districts, when lnvcaked~by tham,
ve believe It would be proper for the sohool board to pas6 a reoo-
lutlon and to atate therein the pertinent feats which are required
by the quoted portion of maid Article to be contained in the
sheriff’s publlehed notloe, and requesting him to sell said property
as the statute directs. A certified oopy of the resolution should
be furnished the sheriff. Suoh a reeolutlon may not be neoeasary,
but it Is undoubtedly not improper. The sheriff will prepare and
publish the notloe of sale in accordmoe with the statute; sell
the laud and, in behalf of the sahool dietriot, execute a deed
oonveying title to Bald laud to the puroharer.
With reference to the notice of sale required to be
given by the sheriff, under the Artlale above oonalderqd, ve oall
your attention to Aata 1941, 47th Leg., Reg. Qes., Oh. 303, H. B.
193, p. 480, and especially to aubd. 4 of Article 2ga thereof.
Ue trust that, in this manner, your Inquiry has been fully
answered.
Your8 very truly
ATTORNEY QEWBRALOF -8
BYtA--Qq*~h
Rarold l@Craoken
Aasiatant
&Ire.l
Encl.
%f$
|
01-03-2023
|
02-18-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/3211377/
|
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-2181
State of Minnesota,
Respondent,
vs.
Emem Ufot Udoh,
Appellant.
Filed February 22, 2016
Affirmed in part, reversed in part, and remanded
Minge, Judge
Hennepin County District Court
File No. 27-CR-13-8979
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Kirk, Judge; and Minge,
Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
MINGE, Judge
On appeal from his criminal-sexual-conduct convictions, appellant Emem Udoh
argues that the district court abused its discretion by allowing expert testimony on the
ultimate issue and erred by entering a conviction on a count of second-degree criminal
sexual conduct. He also raises several issues in a pro se supplemental brief. Because the
district court did not abuse its discretion by allowing the expert testimony and the issues in
Udoh’s pro se supplemental brief do not identify any reversible error, we affirm with
respect to all of those matters. But because one of the second-degree criminal-sexual-
conduct convictions is a lesser-included offense of the first-degree criminal-sexual-conduct
conviction, we reverse and remand for that conviction to be vacated.
FACTS
Udoh was charged with first-degree and second-degree criminal sexual conduct
toward each of his stepdaughters, K.K.W. and K.C.W., ages 13 and 11 respectively at the
time of trial. The K.K.W. counts alleged conduct that occurred between April 25, 2012
and February 19, 2013; the K.C.W. counts alleged conduct between June 20, 2012 and
February 19, 2013. On February 19, 2013, a school social worker learned that K.K.W.
spoke of being abused. K.K.W. told the social worker and the school liaison law
enforcement officer that Udoh had touched both her and her younger sister, K.C.W.,
inappropriately.
Subsequently, K.K.W. told a Hennepin County child-protection worker that “there
were several incidents where [Udoh] would . . . touch her . . . privates” and that she did not
2
feel safe. K.C.W. told the worker that no abuse had occurred and that she felt safe at home.
Both girls were removed from their home.
Both girls were interviewed at CornerHouse. K.K.W. variously reported that Udoh
touched “outside” her “private” with his hand and with “his private,” that Udoh touched
inside her underwear, that his finger went inside her “private area,” and that Udoh laid on
top of her “jerking his private into mine,” but clarified that she “meant the outside” of her
private. K.C.W. initially told CornerHouse staff that nothing had happened to her, but then
admitted that she was “lying before,” that “[i]t did really happen,” and that Udoh “opens
this thing” with “[h]is fingers” and “checks to see if we’re having sex.”
Both K.K.W. and K.C.W. were also examined by Dr. Linda Thompson, a
CornerHouse pediatrician. They told Dr. Thompson that they had been molested by Udoh.
Using an anatomically correct doll, K.K.W. indicated that Udoh touched the “innermost
part of the genital area.” K.C.W. again stated that Udoh told her he was checking to see if
the girls were having sex and, by pointing, indicated that he touched her inside the genital
opening.
At trial, both girls testified to their ages when the incidents occurred, what Udoh
did, that T.U., their mother (and Udoh’s wife), was at work at the time of contact, and that
they told their mother about the contacts. While varying on some details, their testimony
was similar to what they told the CornerHouse interviewer and Dr. Thompson. K.K.W.
stated that when Udoh moved his private parts and something wet came out, he told her
not to tell her mother, and that when she told her mother anyway, her mother did not believe
her. On cross-examination, K.K.W. agreed that she and Udoh argued a lot, that it was
3
frustrating living with him, that he yelled at her about her grades and talking to boys, and
that he gave her “whoopings.” K.K.W. admitted that Udoh took her cell phone away right
before she reported the abuse.
K.C.W. testified that Udoh used his hands to spread open her vagina and looked
inside. K.C.W. thought that this “[p]robably” happened more than 15 times. K.C.W. “told
him to stop a couple times, but he didn’t.” K.C.W. testified that she initially lied about not
being abused because Udoh and her mom “told [her] not to tell or [she] would be in foster
care and then we won’t never see each other again.” K.C.W. said that she told the truth at
CornerHouse because the lies were confusing and she “got tired of it.”
T.U. testified that K.K.W. had a reputation at home for lying and that K.C.W. was
“a little sneaky,” meaning that she too had been dishonest. T.U. also denied that the girls
ever told her about any inappropriate touching. According to T.U., K.K.W. admitted to
making up the allegations because she was mad that Udoh took her phone away. Udoh
denied having sexual contact with his stepdaughters and testified that K.K.W. had a
reputation at home for dishonesty.
The jury found Udoh guilty of both first-degree and second-degree criminal sexual
conduct toward K.K.W. and of second-degree criminal sexual conduct toward K.C.W. The
jury found Udoh not guilty of first-degree criminal sexual conduct toward K.C.W. The
district court entered convictions on the three guilty verdicts and sentenced Udoh to 144
months in prison on the first-degree conviction related to K.K.W. and to a concurrent
sentence of 70 months on the second-degree conviction related to K.C.W. The district
4
court did not impose a sentence on the second-degree conviction of Udoh with respect to
K.K.W. This appeal followed.
DECISION
I.
The first issue is whether the district court abused its discretion in permitting Dr.
Thompson, a medical doctor, to answer a question of whether Udoh’s contact with K.K.W.
was penetration. The district court has broad discretion regarding the admissibility of
evidence, including expert testimony. State v. Reese, 692 N.W.2d 736, 740 (Minn. 2005).
We review the district court’s admission of expert testimony for an abuse of discretion.
State v. Goldenstein, 505 N.W.2d 332, 341 (Minn. App. 1993), review denied (Minn. Oct.
19, 1993). When challenging an evidentiary ruling, the appellant must show both that the
district court abused its discretion and that the appellant “was thereby prejudiced.” State
v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).
An expert may testify “in the form of an opinion or otherwise” if the testimony “will
assist the trier of fact to understand the evidence or to determine a fact in issue.” Minn. R.
Evid. 702. An expert may even provide “opinion testimony on ultimate issues if such
testimony is helpful to the factfinder.” State v. Moore, 699 N.W.2d 733, 740 (Minn. 2005).
“[I]f the subject of the testimony is within the knowledge or experience of a lay jury and
the expert would not be able to deepen the jury’s understanding, then the testimony does
not meet the helpfulness requirement and is not admissible.” Reese, 692 N.W.2d at 740.
On direct, the prosecutor asked Dr. Thompson several questions about female
anatomy and where K.K.W. indicated she had been touched. Dr. Thompson described a
5
diagram of female genitalia to the jury. She was then asked, based on the reported
touching, the following questions:
[PROSECUTOR]: In order to—for somebody to touch a
female on their hymen, would they have to penetrate [the
entrance to the genital opening]?
[DEFENSE ATTORNEY]: Objection. Calls for a legal
conclusion.
THE COURT: Overruled. You may answer, doctor.
....
[DR. THOMPSON]: In order to touch the hymen, these two
sides have to have been separated; and so something has gone
in there into the whole opening in order to get to the hymen.
[PROSECUTOR]: Okay. So when we talk about something
being inside of the genitals, the female genitals, there’s more
than one version of what inside might be. Is that fair to say?
[DR. THOMPSON]: Yes.
Udoh challenges the above testimony, arguing that it “impermissibly interfered with
the jury’s determination of whether Udoh penetrated [K.K.W.’s] genitals.” To convict
Udoh of first-degree criminal sexual conduct toward K.K.W., the jury had to determine
that he “engage[d] in sexual penetration with another person.” See Minn. Stat. § 609.342,
subd. 1 (2012) (requiring only “sexual contact” if the victim was under 13 years of age).
Udoh argues that, because the prosecutor used the term “penetration” in her question, Dr.
Thompson’s answer “embraced ‘legal conclusions or terms of art.’” See Moore, 699
N.W.2d at 740 (“Under the helpfulness test, this court has not allowed ultimate conclusion
testimony which embraces legal conclusions or terms of art.” (quotation omitted)). But
our caselaw does not hold testimony to be erroneous simply for including the word
“penetration.” See State v. Kroshus, 447 N.W.2d 203, 205 (Minn. App. 1989) (stating that
there was medical testimony that the victim had experienced vaginal penetration), review
6
denied (Minn. Dec. 20, 1989); State v. Perez, 404 N.W.2d 834, 837 (Minn. App. 1987)
(noting a doctor’s testimony that the victim “exhibited vaginal injury consistent with
penetration”), review denied (Minn. May 20, 1987).
Udoh argues that the challenged testimony was similar to the improper expert
testimony in Moore. In Moore, a doctor testified that the victim’s injuries met the
definition of great bodily harm. 699 N.W.2d at 739. The supreme court determined that
because the doctor’s testimony basically told the jury what result it must reach, it was not
helpful to the jury. Id. at 740. The testimony was also not helpful because “[w]hether [the
victim’s] injuries constituted ‘great bodily harm’ was a question within the knowledge and
experience of the jury.” Id.
Moore is distinguishable because without further explanation from Dr. Thompson
regarding female anatomy and correct medical terms, a lay jury likely lacked the
knowledge and experience to determine whether Udoh “engage[d] in sexual penetration”
by touching and viewing K.K.W.’s hymen. See Minn. Stat. § 609.342, subd. 1; see also
Minn. Stat. § 609.341, subd. 12(2) (2012) (defining sexual penetration as being “any
intrusion however slight into the genital or anal openings”). Dr. Thompson was not telling
the jury what result it must reach. See Moore, 699 N.W.2d at 740. The testimony helped
the jury determine whether Udoh intruded into K.K.W.’s genital opening and therefore
“engage[d] in sexual penetration.” See Minn. Stat. § 609.341, subd. 12; Minn. Stat.
§ 609.342, subd. 1. Because we conclude that Dr. Thompson’s testimony was helpful to
the jury, it follows that the district court did not abuse its discretion by overruling Udoh’s
objection and allowing the doctor to answer.
7
We also note that there is little likelihood that the challenged testimony
“substantially influenced the jury’s decision.” State v. Vang, 774 N.W.2d 566, 576 (Minn.
2009) (quotation omitted). The record contained unobjected-to evidence of penetration:
The prosecution had played the recording of Dr. Thompson’s CornerHouse interview of
K.K.W. as a prior consistent statement. Thus, the jury heard K.K.W. state that Udoh
touched “inside” her underwear and that he went “inside of there” “[w]ith his finger.” In
addition, Udoh did not object to other portions of Dr. Thompson’s testimony in which she
explained that, using an anatomically correct doll, K.K.W. showed that Udoh touched
inside her genital opening.
II.
The second issue is whether the second-degree criminal-sexual-conduct charge with
respect to K.K.W. was a lesser-included offense of the first-degree charge so that the
district court erred in entering a conviction on both charges. “Upon prosecution for a crime,
the actor may be convicted of either the crime charged or an included offense, but not
both.” Minn. Stat. § 609.04, subd. 1 (2012). An included offense is “[a] lesser degree of
the same crime.” Id. Second-degree criminal sexual conduct is a lesser-included offense
of first-degree criminal sexual conduct. State v. Kobow, 466 N.W.2d 747, 752 (Minn. App.
1991), review denied (Minn. Apr. 18, 1991). “The difference is simply one of sexual
contact versus sexual penetration.” Id.
Both the first-degree sexual-offense count and the second-degree count alleged that
Udoh’s conduct toward K.K.W. occurred between April 25, 2012 and February 19, 2013.
Under this record, there is no evidence that the conduct supporting Udoh’s conviction for
8
second-degree criminal sexual conduct is separate from the conduct supporting his first-
degree conviction. Udoh’s first-degree conviction for penetration therefore includes the
second-degree conduct of sexual contact.
Because the count for the second degree is a lesser-included offense of the one for
first degree, we remand for the district court to vacate the judgment on the second-degree
offense against K.K.W.
III.
Udoh raises several additional issues in his pro se supplemental brief, including that
(1) the district court abused its discretion by limiting cross-examination of K.K.W.; (2) the
district court erred by admitting certain evidence; (3) the prosecutor committed
misconduct; and (4) the district court erred by denying his motion for a judgment of
acquittal.
A. Cross-Examination of K.K.W.
Udoh first challenges the district court’s ruling about the scope of questions
regarding K.K.W.’s credibility. The district court has “broad discretion” to control the
scope of cross-examination and may “impose reasonable limits on cross-examination of a
prosecution witness.” State v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn. 1995). But the
district court’s broad discretion is limited by the Sixth Amendment, which guarantees a
defendant the opportunity to cross-examine the witnesses against him. Id. at 640.
“Evidentiary rulings rest within the sound discretion of the [district] court and will not be
reversed absent a clear abuse of discretion.” Amos, 658 N.W.2d at 203. “The credibility
of a witness may be attacked or supported by evidence in the form of opinion or reputation”
9
regarding the witness’s “character for truthfulness or untruthfulness.” Minn. R. Evid.
608(a)(1). But, although a party may inquire about specific instances of the witness’s
conduct concerning truthfulness or untruthfulness, extrinsic evidence may not be used to
prove those specific instances. Minn. R. Evid. 608(b).
Before trial, the prosecutor moved to prohibit Udoh’s attorney from impeaching
K.K.W. with prior instances of lying through cross-examination of her or any other
witnesses. The district court determined that “evidence of the alleged victim’s prior
conduct is not admissible pursuant to Minnesota Rules of Evidence 404 or 405” because it
is “impermissible propensity evidence” and “the alleged victim’s veracity is not an
essential element of [the] charge[s].” The district court stated that Udoh could “inquire
into specific instances of lying on cross-examination of the alleged victim” but must accept
the answer. He could not introduce extrinsic evidence of past conduct.
Udoh argues that the district court’s ruling was improper under Goldenstein. In
Goldenstein, we reversed the appellants’ convictions because “the [district] court’s
exclusion of evidence of the prior false allegations violated [the appellants’] constitutional
right to present a defense.” 505 N.W.2d at 340. But here, although K.K.W. admitted lying,
there is no evidence that she made a prior false allegation of sexual abuse. Because Udoh
only sought to introduce evidence that K.K.W. lied and told crazy stories, Goldenstein is
not on point. Udoh also cites State v. Benedict, which discusses the admission of evidence
showing the victim’s source of sexual knowledge. See 397 N.W.2d 337, 341 (Minn. 1986)
(“[A] [district] court has discretion to admit evidence tending to establish a source of
knowledge of or familiarity with sexual matters in circumstances where the jury otherwise
10
would likely infer that the defendant was the source of the knowledge.”). Because Udoh
did not seek to introduce evidence of K.K.W.’s sexual knowledge, Benedict is also not on
point.
Under rule 608, the district court stayed within its range of discretion. It allowed
Udoh to challenge K.K.W.’s credibility by asking about specific instances of
untruthfulness. Because she admitted that she had not been truthful in those situations,
they were not in dispute. The district court could prohibit Udoh from introducing extrinsic
evidence regarding such undisputed, specific instances. Accordingly, we conclude that the
district court did not abuse its discretion by limiting Udoh’s cross-examination of K.K.W.1
B. Interview Evidence
Udoh next challenges the admission of evidence regarding the CornerHouse
interviews and Dr. Thompson’s testimony about her interviews of K.K.W. and K.C.W. on
various grounds, including that the interviews were done without parental consent and that
the CornerHouse and Dr. Thompson interviews were otherwise inadmissible. Udoh
mentions a variety of additional objections which are not accompanied with analysis or
legal argument. We conclude that these additional objections are not meritorious and do
not further consider them.
1
Udoh also appears to argue that the school social worker was biased against him and that
the district court erroneously precluded him from cross-examining her regarding her biases.
But the district court made no ruling about this cross-examination and only prevented Udoh
from introducing extrinsic evidence to challenge K.K.W.’s truthfulness.
11
1. Parental Consent; General Constitutional Claims
Once a local welfare agency receives a report of sexual abuse, it must conduct an
investigation. Minn. Stat. § 626.556, subd. 10(b)(1) (2012). The agency has the “authority
to interview, without parental consent, the alleged victim and any other minors who
currently reside with . . . the alleged offender.” Id., subd. 10(d) (2012) (emphasis added).
These authorized interviews may occur at school or any other facility. Id. The agency
must only notify a parent “no later than the conclusion of the investigation or assessment.”
Id. Under this statute, county officials could interview K.K.W. and K.C.W. without a
warrant, probable cause, or exigent circumstances. See id. In addition, the interviews did
not require parental consent. See id. Furthermore, Udoh provides no evidence of any
improper investigative procedures.
Given Minnesota’s statute and the lack of applicable legal authority requiring a
warrant or exigent circumstances to interview a suspected child victim of abuse, we
conclude that the interviews did not violate any constitutional rights that may be asserted
by Udoh.
2. CornerHouse Interviews
We review Udoh’s assertions that the district court improperly admitted the
CornerHouse interviews into evidence for an abuse of discretion. Amos, 658 N.W.2d at
203. The district court overruled Udoh’s hearsay objection to the CornerHouse interviews
and admitted the videos as prior consistent statements. A witness’s prior statement that is
consistent with the witness’s testimony is not hearsay and is admissible if it is helpful to
the jury in evaluating the witness’s credibility. Minn. R. Evid. 801(d)(1).
12
The district court determined that although K.K.W.’s and K.C.W.’s testimonies
were “not identical” to their CornerHouse statements, they were “reasonably consistent.”
In reviewing the record, we conclude that the district court did not abuse its discretion in
determining that the girls’ testimony was “reasonably consistent” with their CornerHouse
statements.
In addition, the district court determined that the credibility of both K.K.W. and
K.C.W. was challenged during their cross-examinations so the CornerHouse statements
“would be helpful to the jury in evaluating their credibility.” Udoh challenged K.K.W.
about her truthfulness and relationship with Udoh, and pointed to K.C.W.’s initial
statements denying abuse. Given the girls’ respective testimony, their CornerHouse
statements were helpful to the jury in evaluating their credibility. We conclude that the
district court did not abuse its discretion in admitting the CornerHouse interviews as prior
consistent statements.
3. Dr. Thompson’s Interviews
Udoh appears to argue that Dr. Thompson’s testimony was erroneously admitted
because she did not record her interviews with K.K.W. and K.C.W. Because Udoh did not
challenge this testimony at trial, we apply a plain-error standard of review. See State v.
Griller, 583 N.W.2d 736, 740 (Minn. 1998). Before reviewing “an unobjected-to trial
error, there must be (1) error, (2) that is plain, and (3) affects substantial rights.” State v.
Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
Udoh does not cite to and we are not aware of any legal requirement that Dr.
Thompson record her interviews. Udoh does not allege that Dr. Thompson’s written report,
13
which she referred to at trial, was deficient in any respect. Udoh also appears to argue that
Dr. Thompson’s interview of K.K.W. was insufficient because K.K.W. did not watch the
screen during her physical examination. But Dr. Thompson testified that only about 50%
of children watch the screen during their examinations. And even without watching the
screen, K.K.W. was able to identify where Udoh touched her. Udoh cannot establish plain
error regarding Dr. Thompson’s testimony. See id. (explaining that a plain error must be
clear or obvious).
C. Prosecutorial Misconduct
Udoh alleges that the prosecutor committed misconduct in (1) opening argument;
(2) questioning witnesses; and (3) closing argument. Udoh also argues that the “cumulative
effects” of prosecutorial misconduct violated his due-process and equal-protection rights.
Most of his claims on appeal were not objected to at trial. The plain-error standard of
review applies when no objection is made at trial. Id. at 299. If the appellant shows that
the misconduct violated caselaw, a rule, or standard of conduct, the burden shifts to the
state to show that the misconduct did not prejudice the defendant’s substantial rights. Id.
at 299-300. Furthermore, we “will reverse [a claim of generalized prosecutorial
misconduct] only if the misconduct, when considered in light of the whole trial, impaired
the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).
“If the misconduct was serious, the misconduct [must be] harmless beyond a reasonable
doubt [meaning that] the verdict rendered was surely unattributable to the error. For less
serious misconduct, the standard is whether the misconduct likely played a substantial part
in influencing the jury to convict.” Id. (quotations and citations omitted).
14
1. Opening Argument
Udoh first challenges the beginning of the prosecutor’s opening argument on the
ground that it erroneously stated that Udoh sexually abused T.U. But in making his
challenge, Udoh focuses on a phrase in a single sentence of the prosecutor’s argument; we
must consider the prosecutor’s statement as a whole. See State v. Walsh, 495 N.W.2d 602,
607 (Minn. 1993). It is clear from the full context that the prosecutor did not argue or make
a claim that Udoh sexually abused T.U. We conclude that the assertion that the
prosecutor’s allusion to T.U. discredited her is not meritorious.
Udoh also asserts that the prosecutor erred by stating that the girls were “victims of
sexual abuse.” Before trial, Udoh’s attorney moved the district court to direct “the parties
to refer to K.K.W. and K.C.W. as complaining witnesses rather than as [victims]” because
“[t]he ultimate issue in this case is whether or not they were victims . . . of sexual abuse.”
The district court allowed the prosecutor to refer to them as victims or alleged victims in
opening and closing arguments as long as the prosecutor did not “overuse that word.” The
prosecutor only referred to K.K.W. and K.C.W. as “victims” once in her opening argument.
She also twice referenced a generic victim of sexual abuse. We conclude the prosecutor’s
statement was not misconduct, let alone serious misconduct.
2. Questioning Witnesses
Udoh asserts that, when questioning witnesses, the prosecutor asked “misleading
questions” and made “suggestive comments on facts.” Udoh’s attorney made several
objections that the prosecutor was improperly leading the testimony of K.K.W. and
K.C.W., and the district court overruled the objections. “Leading questions should not be
15
used on the direct examination of a witness except as may be necessary to develop the
witness’[s] testimony.” Minn. R. Evid. 611(c). But in context, leading questions were
necessary to develop K.K.W.’s and K.C.W.’s testimony given the girls’ ages and
explanations of events. See Minn. R. Evid. 611(c) cmt. (stating that leading questions can
be “necessary to develop testimony because of temporary lapse of memory, mental defect,
immaturity of a witness, etc.”).
Udoh also challenges the prosecutor’s questions to T.U. about her relationship with
the girls’ father.2 Udoh’s attorney objected to this questioning. But the district court
overruled the objection. It reasoned that while testifying on Udoh’s behalf, T.U. had stated
that the girls wanted to live with their dad and that this prior testimony opened the door to
further questioning about the girls’ father and the girls’ reasons for wishing to live with
him. See State v. Bailey, 732 N.W.2d 612, 622 (Minn. 2007) (explaining that when one
party opens the door “by introducing certain material,” the other party has “a right to
respond with material that would otherwise have been inadmissible” (quotation omitted)).
Regardless, there is no evidence that this brief portion of T.U.’s testimony about the girls’
father prejudiced Udoh. Udoh’s attorney rebutted the prosecutor’s questions in closing by
arguing that the girls “fantasized” that life would be better with their dad. We conclude
2
Udoh refers to this as “relationship evidence,” but relationship evidence is evidence of
similar conduct by the defendant against the victim of domestic abuse or other family
members. See Minn. Stat. § 634.20 (2012). Evidence of the relationship between T.U. and
the girls’ father is not relationship evidence and does not require any special jury
instructions. See State v. Word, 755 N.W.2d 776, 783, 785 (Minn. App. 2008) (defining
relationship evidence and stating that such evidence requires a cautionary instruction).
16
that any testimony about the girls’ father’s abusive behavior had no effect on the jury’s
verdict against Udoh.
Udoh makes several other arguments about the questioning of witnesses, including
that the prosecutor, “elicited false testimonies from government[] witness[es],” withheld
evidence, improperly asked K.K.W. and K.C.W. whether they were telling the truth, and
“made improper objections . . . to prevent the admission of relevant evidence.” We find
no support for these allegations. Small inconsistencies among different witnesses do not
create an inference that the prosecutor elicited false testimony or withheld evidence. Udoh
identifies no legal basis for his claims that the prosecutor’s questions or objections were
improper. Many of Udoh’s cited objections were sustained by the district court, but we
conclude that none of the adverse rulings was an abuse of discretion.
3. Closing Arguments
Udoh asserts that the prosecutor improperly endorsed the credibility of the state’s
witnesses. The prosecutor stated: “[K.K.W.] has no reason to lie to you” and “[K.C.W.]
just like her sister has no reason to lie to you.” She also stated that, if the girls had told the
story “the same exact way every single time,” she “would have been concerned these girls
were lying.” Finally, the prosecutor stated that she could not “think of a single reason”
why the girls would lie about telling their mom about the abuse. “A prosecutor may argue
as to the credibility of witnesses but may not throw [her] own opinion onto the scales of
credibility.” State v. McNeil, 658 N.W.2d 228, 235 (Minn. App. 2003). As in McNeil, we
conclude that here any error in a limited assertion of the girls’ credibility in closing
17
argument is harmless given the girls’ “descriptive and detailed testimony” regarding the
abuse. See id. at 236.
Udoh also challenges the prosecutor’s statement that part of Udoh’s argument is a
“red herring.” A prosecutor may use the phrase “red herring” to “anticipat[e] those aspects
of the evidence that the state need not prove at all but [to which] the defense [is expected
to] attach unwarranted significance.” See State v. Moseng, 379 N.W.2d 154, 156 (Minn.
App. 1985).3 The prosecutor was also free to discuss the girls’ testimony about
“whoopings,” which was introduced by Udoh, to anticipate Udoh’s argument that the girls
lied because they were mad at him for punishing them. See id. As with opening statements,
Udoh claims that the prosecutor’s use of the word “victim” was prejudicial error. Twice
in closing the prosecutor used the word “victim” to refer to K.K.W. and K.C.W. and three
times to refer to the general investigative process. We conclude that use was within the
limits allowed by the district court and does not constitute misconduct or prejudicial error.
Udoh cites several other statements during the prosecutor’s closing arguments as
evidence of prosecutorial misconduct. But, reading the arguments as a whole, see Walsh,
495 N.W.2d at 607, we can find no evidence of prosecutorial misconduct. Even if there
was misconduct, it did not “play[] a substantial part in influencing the jury to convict”
because the other evidence of Udoh’s guilt was strong. See Powers, 654 N.W.2d at 678
(quotation omitted).
3
Udoh’s cited case involves a prosecutor attacking the defense attorney in closing
argument to suggest that the attorney conspired with the defendant to fabricate testimony.
See United States v. Holmes, 413 F.3d 770, 775 (8th Cir. 2005). The prosecutor here made
no such personal attacks against Udoh’s attorney.
18
D. Denial of Motion for Judgment of Acquittal
Finally, Udoh argues that the district court erred by denying his motion for a
judgment of acquittal because the evidence was insufficient to sustain his convictions. “At
the close of evidence for either party, the defendant may move for . . . a judgment of
acquittal on one or more of the charges if the evidence is insufficient to sustain a
conviction.” Minn. R. Crim. P. 26.03, subd. 18(1)(a). To grant this motion, the district
court must determine “whether the evidence is sufficient to present a fact question for the
jury’s determination, after viewing the evidence and all resulting inferences in favor of the
state.” State v. Slaughter, 691 N.W.2d 70, 74-75 (Minn. 2005).
Udoh argues that the evidence was insufficient to show that he touched K.K.W. and
K.C.W. with sexual intent. Viewing the record, we conclude that the state’s evidence was
“sufficient to present a fact question for the jury’s determination.” See id. at 75.
Udoh further argues that the evidence was insufficient to show that he met the
requirement that to convict on the various degrees of sexual misconduct he was 48 or 36
months older than K.K.W. and K.C.W. Udoh’s trial counsel specifically raised this issue
in requesting reconsideration of the denial of his motion for a judgment of acquittal. In its
case, the state established both girls’ birthdays, ages at trial, and ages when the alleged
abuse occurred. On cross-examination of Udoh, the state established Udoh’s birthday and
his age. Udoh presents no caselaw requiring the state to establish Udoh’s age in its case in
chief. And even before Udoh testified, the state had a “common sense argument” that Udoh
met the age-difference requirement because the girls were 13 and 11 and Udoh was an
adult, a college graduate, and married to the girls’ mother. The evidence was sufficient for
19
the jury to conclude that Udoh was more than 48 months older than the girls at the time of
the alleged offenses.
Finally, Udoh argues that the evidence was insufficient to support his convictions
because the state did not establish specific dates for his offenses. The complaint listed a
range of dates for Udoh’s offenses, rather than specific dates. “[S]pecific dates need not
be charged or proven in a sexual abuse case.” State v. Poole, 489 N.W.2d 537, 544 (Minn.
App. 1992), aff’d, 499 N.W.2d 31 (Minn. 1993). The girls’ testimony supported the range
of dates listed in the complaint.
Because the evidence was sufficient to submit the case to the jury, we conclude the
district court did not err by denying Udoh’s motion for a judgment of acquittal. See
Slaughter, 691 N.W.2d at 74-75.
Affirmed in part, reversed in part, and remanded.
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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0306
State of Minnesota,
Respondent,
vs.
Alan Michael Habiger,
Appellant.
Filed March 7, 2016
Affirmed
Chutich, Judge
Stearns County District Court
File No. 73-CR-12-4219
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and
Janelle P. Kendall, Stearns County Attorney, St. Cloud Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Mark D. Nyvold, Special
Assistant Public Defender, Fridley, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Chutich, Judge; and
Randall, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
CHUTICH, Judge
Appellant Alan Habiger appeals his conviction of aggravated robbery, contending
that the state’s circumstantial evidence was insufficient to convict him of this crime.
Specifically, Habiger argues that the uncontroverted evidence that his right hand and arm
are not functional is inconsistent with guilt. Because we find that the circumstances proved
are inconsistent with any reasonable hypothesis besides guilt, we affirm Habiger’s
conviction.
FACTS
In the afternoon of April 4, 2012, a man robbed the Shopko pharmacy in Saint
Cloud. At trial, the state presented the following evidence, including testimony from M.M.,
a pharmacy employee, and the chief pharmacist, who described the robbery. They said
that the robber was approximately five feet and five or six inches tall and appeared to be a
white male. Little showed of his face because he was wearing a dust mask, dark sunglasses,
and a green hooded sweatshirt with the hood pulled over his head.
M.M. testified that the person set a note on the counter, from which she read the
following: “Don’t be a hero. Hand over the OxyContin.” 1 She quit reading the note at that
point and called the chief pharmacist to the front of the pharmacy. The pharmacist testified
1
OxyContin is the brand name for a timed-release formula of oxycodone, a medically
prescribed painkiller that can be abused for its “euphoric effects.” Dep’t of Justice, Drug
Enf’t Admin., San Diego Field Div., Facts & Information: OxyContin Abuse,
http://www.dea.gov/divisions/sd/2012/sd_oxycontin_brochure.pdf. Oxycodone is also
found in other painkillers, such as Percocet and Percodan, and is classified by the Drug
Enforcement Administration as a Schedule II narcotic. Id.
2
that the note said, among other things, “Don’t be a hero. If you don’t want to be shot give
me your OxyContin.” The state entered into evidence a Shopko surveillance video that
captured the robber entering and exiting the store.
The pharmacist gave the man 100 pills of 10-milligram OxyContin and 100 pills of
20-milligram OxyContin. He testified that when he brought the bottles over, the robber
“reached up with the one hand, the left hand, and grabbed some and grabbed the other
bottle with the right hand.” The man’s right arm seemed more restricted than his left arm.
The bottles that the pharmacist gave to the robber had labels with manufacturer
information on them. According to the pharmacist, these labels are never taken off the
manufacturer’s bottles that are kept in the pharmacy; neither these bottles nor the
manufacturer information are given to customers.
The pharmacist followed the robber after he went out the front door of the store.
When he got outside, the only other person he saw besides the robber was a woman, who
pointed to the robber as he rounded a corner.
Two witnesses in the parking lot, B.P. and his wife, D.S., testified at trial. They saw
a person in a hooded sweatshirt walking quickly or running and a person in a white lab coat
following at a distance. The witnesses also saw a woman point in the direction of the
person in the hooded sweatshirt, so they decided to follow him. The couple then drove
directly to the north parking lot area, losing sight of the suspect for some seconds as he
rounded the corner, then saw a man fitting the physical description of the robber driving
away in the only occupied vehicle in the area. The witnesses provided police the license
plate number of the car, which was registered to Habiger.
3
B.P. made eye contact with the man as he passed them in the parking lot, and he
later identified Habiger from a blind sequential photo lineup and again in the courtroom at
trial as the person driving the car. B.P. and D.S. saw the person driving the car take off a
hooded sweatshirt. B.P. clarified at trial that he recognized Habiger as the person who was
driving the car, not as the person who left the store.
Officer Daniel Miller, of the Sartell Police Department, testified about two searches
of Habiger’s garbage that occurred after the robbery. Officer Miller found a receipt for a
package of breathing masks, dated March 31, 2012. He also found an empty pack of Old
Gold cigarettes containing two manufacturer’s labels for OxyContin that were tightly
folded into little balls. Officer Miller also found a usage guide and an April 2012 receipt
for the purchase of Percocet2 from another pharmacy.
A search of Habiger’s home revealed a pill bottle for an oxycodone prescription and
a box of protective breathing masks. These masks had a ventilation hole in the middle and
a green mechanism under the chin. L.K., an assistant pharmacist working at the time of
the robbery, testified that the robber wore a “cheaper” white mask without any extra
features.
The state further introduced testimony regarding Habiger’s prescription history.
From April 2011 to April 2012, Habiger had prescriptions for methadone and oxycodone-
acetaminophen. The state also played a video-recorded statement from Habiger, who
denied committing the robbery. Regarding the drug manufacturer’s labels found in the
2
Testimony at trial established that Percocet is a brand name of oxycodone-
acetaminophen.
4
cigarette pack, Habiger explained that he either received the drug manufacturer’s label
from the pharmacy or that he had picked it up when he was walking around picking up
garbage.
At trial, Habiger presented evidence that his right arm has been almost entirely non-
functional since a serious car accident in 2005. Dr. Gregory Schlosser, who had been
Habiger’s rehabilitation and pain-management physician since the accident, testified that a
February 2013 evaluation of Habiger found that his right arm “was listed as having some
minimal active movement” but not enough to “move it against gravity.” He also testified
that Habiger has used a sling consistently since the accident, he does not have the ability
to reach and grasp things in his right hand, and he would probably not be able to hold a
piece of paper in his right hand, even if someone placed it there.
Dr. Schlosser also testified regarding Habiger’s history with OxyContin and
oxycodone. He testified that Habiger was initially prescribed OxyContin after the accident,
but later switched to Percocet. He confirmed that an allergic reaction to OxyContin was
consistent with Habiger’s medical records.
Habiger showed his atrophied arm to the jury and testified that he would not be able
to put his right hand in the pocket of a hoodie, as the robber is shown doing in the Shopko
surveillance footage, or pull a hoodie over his head as D.S. and B.P. testified. He and his
mother both testified that Habiger has a severe itching reaction to OxyContin. Habiger
acknowledged that he was in the Shopko parking lot right after the robbery occurred. He
claimed that he went there to buy a tool to remove a fishhook from his dog’s leg, but once
he got there, he realized that he had a tweezer with him and had no reason to enter Shopko.
5
The jury convicted Habiger of one count of aggravated robbery in the second degree.
The sentencing court granted a stay of imposition and required Habiger to serve 180 days
in local confinement as a condition of a 15-year probationary sentence. Habiger appeals.
DECISION
Sufficiency of the Evidence
Habiger challenges the sufficiency of the evidence concerning the identity of the
robber. He asserts that uncontroverted evidence about his injured right arm proves that he
could not have been the Shopko robber. Even applying the more stringent standard of
review required in cases involving circumstantial evidence, Habiger’s argument cannot
prevail.
Habiger was convicted of second-degree aggravated robbery. See Minn. Stat. §
609.245, subd. 2 (2010). Accordingly, the state needed to prove that Habiger took personal
property from the person or presence of another using, or threatening the use of, imminent
force while implying that he possessed a dangerous weapon. See id.; see also 10 Minnesota
Practice, CRIMJIG 14.05 (2006). The only disputed element here is identity.
Because of the short gap in time when the robber disappeared around the corner, the
eyewitnesses were not certain whether the person they identified coming around the
Shopko corner was the same person who robbed the pharmacy. Accordingly, the state
agrees with Habiger that it relied on circumstantial evidence to prove that Habiger robbed
the Shopko pharmacy that day. “[C]ircumstantial evidence is sufficient to sustain a
conviction when all the circumstances proved are consistent with the hypothesis that the
accused is guilty and inconsistent with any rational hypothesis except that of [the
6
accused’s] guilt.” State v. Tscheu, 758 N.W.2d 849, 857 (Minn. 2008) (quotation omitted).
“Circumstantial evidence must form a complete chain that, in view of the evidence as a
whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable
doubt any reasonable inference other than guilt.” State v. Pratt, 813 N.W.2d 868, 874
(Minn. 2012) (quotation omitted).
On review, this court gives greater scrutiny to convictions based on circumstantial
evidence than those based on direct evidence. Id. Nevertheless, “we still construe
conflicting evidence in the light most favorable to the verdict and assume that the jury
believed the State’s witnesses and disbelieved the defense witnesses.” Tscheu, 758 N.W.2d
at 858. An appellant must show something more than mere conjecture to overturn a
conviction based on circumstantial evidence. State v. Lahue, 585 N.W.2d 785, 789 (Minn.
1998).
The first step in reviewing the sufficiency of circumstantial evidence is to identify
the circumstances proved. State v. Hanson, 800 N.W.2d 618, 622 (Minn. 2011). “In
identifying the circumstances proved, we defer . . . to the jury’s acceptance of the proof of
these circumstances and rejection of evidence in the record that conflicted with the
circumstances proved by the State.” State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010)
(quotation omitted).
The second step is to “examine independently the reasonableness of all inferences
that might be drawn from the circumstances proved, including inferences consistent with a
hypothesis other than guilt.” Hanson, 800 N.W.2d at 622 (quotation omitted). In this
independent examination, “we give no deference to the fact finder’s choice between
7
reasonable inferences.” Andersen, 784 N.W.2d at 329–30 (quotation omitted). “[T]he
inquiry is not simply whether the inferences leading to guilt are reasonable. Although that
must be true in order to convict, it must also be true that there are no other reasonable,
rational inferences that are inconsistent with guilt.” Id. at 330 (quotation omitted). This
review does not require the evidence to exclude “possibilities of innocence”; it only needs
to make any theory of innocence “seem unreasonable.” Tscheu, 758 N.W.2d at 858.
Circumstances Proved
Applying these principles and construing conflicting evidence in the light most
favorable to the verdict, the circumstances proved are as follows. The Shopko West
pharmacy in St. Cloud was robbed of two manufacturer’s bottles of OxyContin on April 4,
2012, by a person using a note that said, in part, “Don’t be a hero. If you don’t want to be
shot give me your OxyContin.” The person was wearing a dust mask, dark sunglasses, and
a green hooded sweatshirt with the hood pulled over his head and appeared to be white and
male. Habiger is about the same height and build as the robber. The bottles had
manufacturer’s labels attached. After receiving the bottles of OxyContin, the person left
Shopko through the front door. Outside the store, two witnesses saw a person dressed
similarly to the robber walking quickly or running. The witnesses decided to follow the
person, losing track of him for only 10 to 15 seconds as he rounded a corner. Shortly after,
the witnesses saw a person driving around the corner from the same direction. The
witnesses memorized the person’s license plate number, which was registered to Habiger.
One of the witnesses, who made eye contact with the person in the car, identified Habiger
in a blind sequential line-up and again at trial as the driver of the car.
8
After the robbery, the police searched Habiger’s garbage twice, finding, among
other things, a receipt for a package of protective breathing masks that were purchased four
days before the robbery, a usage guide and receipt for oxycodone, and an empty Old Gold
cigarette pack, the brand that Habiger admitted smoking, containing two manufacturer’s
labels for OxyContin. These manufacturer’s labels are not distributed to patients, and the
bottles taken by the suspect at the robbery had manufacturer’s labels attached to them.
After taking a statement from Habiger, the police executed a search warrant for Habiger’s
home, finding a pill bottle for an oxycodone prescription and a box of protective breathing
masks. Habiger has a chemical dependence on oxycodone.
Regarding Habiger’s injured right arm, to the extent that the evidence regarding his
injuries contradicts the verdict, we must assume that the jury did not believe his testimony
or that of Dr. Schlosser.
Reasonable Inferences
Next, we must determine if the circumstances proved are consistent with guilt and
inconsistent with any rational hypothesis other than guilt. We agree that the state proved
“two very significant, salient facts: (1) the nearly seamless observations of Habiger from
the moment of the robbery until he was identified in his car, and (2) the otherwise
inexplicable presence of the labels in his garbage.” B.P. and D.S. only lost sight of the
suspect for approximately 10 to 15 seconds and did not see anyone else in the parking lot,
and the jury made the only rational inference that the man the couple saw leaving the
parking lot was the same one they saw the pharmacist following out of the store, and
therefore the person who robbed the store.
9
Further, from the proved circumstance that the manufacturer’s labels were found
concealed in his garbage in an empty pack of the brand of cigarettes that Habiger admits
to smoking, the jury drew the reasonable inference that he stole the bottles and then
attempted to hide the labels in a cigarette pack. The alternative hypotheses offered by
Habiger – that the labels came from the pharmacy with his prescribed medications or from
him picking up trash on a walk – are unreasonable. The chief pharmacist testified that the
pharmacy does not give those labels to the general public, so it is unlikely that he would
have gotten them legitimately from the pharmacy. For the same reason, it is also unlikely
that he picked the labels up while picking up garbage. Habiger’s hypothesis simply does
not rise above the level of “mere conjecture.” See Lahue, 585 N.W.2d at 789 (noting that
appellate courts “will not overturn a conviction based on circumstantial evidence on the
basis of mere conjecture”).
By emphasizing the injuries to his right arm, Habiger essentially asks us to reverse
the district court because his conviction is against the weight of the evidence. “Our
precedent does not permit us to re-weigh the evidence.” State v. Franks, 765 N.W.2d 68,
73 (Minn. 2009); see also State v. Robinson, 536 N.W.2d 1, 2 (Minn. 1995) (“We reject
defendant’s request . . . that we weigh the evidence, as a kind of 13th juror, and grant him
relief on the ground the verdict of guilty was against the weight of the evidence.”). Rather,
we must construe “the evidence in the light most favorable to the verdict,” id., assuming
that the jury disbelieved any evidence to the contrary. State v. Hayes, 831 N.W.2d 546,
552 (Minn. 2013). The jury heard the evidence regarding Habiger’s arm, assessed the
credibility of the witnesses, weighed their testimony against the state’s strong evidence,
10
and determined that Habiger was guilty beyond a reasonable doubt. Considering the
circumstances proved and independently examining the reasonableness of all inferences
that might be drawn from these circumstances, we conclude that only one reasonable
conclusion can be drawn: Habiger robbed the Shopko pharmacy on April 4, 2012.
Affirmed.
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Early in April of 1928 William McKinley Meinders filed an application, asking that the court appoint a guardian for his property, and in due time an order was entered, appointing B.M. Meinders as guardian. A bond in the penal sum of $5,000 was filed and letters of guardianship were issued.
Thereafter a report was filed showing the general assets of the estate, consisting of $3,137.40. On December 2, 1930, the guardian filed a report, in which he set out that at the request of the ward he purchased certain real estate, describing the same, which consisted of about ten acres of land, with a small dwelling house and other buildings located thereon, which real estate was located a few miles from the city of Waterloo, Iowa, for an agreed price of $2,250.00, and that later, by reason of some minor clouds upon the title of said property, a reduction of $100 in said purchase price was agreed upon; that he expended on the purchase of this real estate the sum of $2,150.00. He then accounted for the other moneys which came into his hands.
On the 10th day of May, 1934, William McKinley Meinders filed objections to the report, in which he specifically objected to the purchase of the real estate and denied that he ever requested the guardian to purchase same. To this there was filed a reply by the guardian, in which he set up that his ward had occupied the said premises for a matter of some six or seven years; had paid no rent; and that he was now estopped from objecting thereto; and asked that an order be made, approving said investment, the final report of the guardian, and that he be discharged and his bondsman exonerated.
Thereafter there was filed an amendment to the application for the removal of the guardian, by Grace Meinders, the mother of the ward. Finally, after filing all of these reports and amendments thereto, and objections, the case came on for hearing, and evidence was offered. The lower court refused to approve the *Page 238
investment in the real estate and held that the guardian should account for the money which he paid out of the guardianship funds for said real estate, subject to any other claims he might have against said fund; and directed him forthwith to make a complete report. Exceptions were duly noted. The guardian has appealed to this court.
The legislature of the State of Iowa saw fit to pass Code section 12617, which is as follows:
"Any person, other than an idiot or lunatic, may, upon his own application, by verified petition, have a guardian appointed for his person or property, or both, if, in the opinion of the district court or judge to whom the petition is presented, said appointment would inure to the best interest of said applicant."
Section 12618 is as follows:
"Notice not required. Upon application under section 12617 no notice of the hearing shall be required."
It was under this code section that William McKinley Meinders, a man twenty-six years of age, having a wife and two children, applied to the district court of Butler county, to have his property placed in guardianship. That he was competent, it seems to us, must be conceded, because the statute just cited, under which he applied for the appointment of a guardian and under which a guardian was appointed, provides that "any person, other than an idiot or lunatic, may, upon his own application * * * have a guardian appointed." This is a case in which the ward was competent, for, if he had not been competent, he could not have asked for the appointment of a guardian and under the law it would have been necessary to have a notice served upon him.
In the case of Dean v. Atwood, 221 Iowa 1388, at page 1390, 212 N.W. 371, 372, this court said:
"Although the order of appointment, under the provisions of section 3219, Code 1897 (under which the order was entered), may be viewed as improvident and inadvertently entered, it must be considered at this time as a verity. It may be noted that chapter 5, of which section 3219, Code 1897, was a part, has since been amended. See section 12617, Code 1924. Under the then statutory provisions, the court did not have the authority *Page 239
to appoint a person, who, in legal effect, is a trustee or an agent, with the power of attorney to act for a person of normal mind, in the absence of any showing that the petition came within the purview of the definition of a person for whom a guardian could be appointed. The legal and logical effect of the appointment in the instant case made the guardian a trustee or agent of the ward to act for her with respect to her property and her property rights."
And so in the case at bar the guardian was in reality a trustee or agent of the ward, to act with him in respect to his property and his property rights.
The evidence in this case shows that the guardian was a man of some sixty-eight years of age, an uncle of the ward, uneducated, and having had no previous experience in legal matters.
There is really no material dispute in this record. The purchase of the real estate which is now complained of was made some years ago. The ward and his mother investigated the property before it was purchased. The amount agreed upon, $2,250.00, was a reasonable price for the property at that time. William McKinley Meinders moved his family into the house on the property and they have lived there ever since, a period of approximately seven years. During that period of time he and his wife had trouble and she secured a divorce from him. It is interesting to note that he was competent enough to appear in court and defend the divorce; that his guardian was not notified, nor was a guardian ad litem appointed for him. After the divorce was granted, Grace Meinders, the mother of the ward, who is now objecting to the report as his next or best friend, moved to this place and lived there with her son. During those seven years they have not paid one cent of rent but have had the use and occupancy of the premises during that time. The purchase of the premises was made with the full knowledge of the ward and his mother. The money was paid out of the funds of the estate. The deed which was delivered was in blank and not until after the trouble on this report arose was the name of William McKinley Meinders inserted as grantee. The deed was then filed.
In Perry on Trusts, 5th Edition, Vol. 1, section 467, we find the following:
"If trustees make an improper investment with the knowledge, assent, and acquiescence, or at the request of the cestui *Page 240
que trust, they cannot be held to make good the loss, if one happens."
And in Vol. 2, section 849, we find:
"If the cestui que trust concur in the breach of the trust, he is estopped from proceeding against the trustee."
And in section 850:
"So a cestui que trust may be debarred from relief by long acquiescence in a breach of the trust, though he did not originally concur in it."
The Michigan court in the case of Lawrence v. First National Bank Trust Company, 266 Mich. 199, 253 N.W. 267, at page 270 said:
"Where beneficiaries either expressly or impliedly assent to the action of their trustee in managing their property not in strict accord with the terms of the trust, they will be held to have acquiesced in such action. * * * A party cannot complain when he has consented. Quimby v. Uhl, 130 Mich. 198, 212, 89 N.W. 722, 728."
And so in the case at bar in reality the guardian is nothing more than a trustee. The property was purchased with the knowledge of the ward. The ward has occupied the premises for a period of seven years, during which time he paid no rent. He cannot now say that he did not know that these premises belonged to the guardianship, for, after occupying the premises for a period of seven years, and not having paid rent during any of that time, one is not in a very good position to say, "I did not know this was my property."
William McKinley Meinders, as far as this record goes, was a man of sound mind. He secured his uncle, a man advanced in years to act as his guardian. It was upon his application that the guardian was appointed. The money of the estate was used in the purchase of the property. The ward has occupied the premises during these years, and by so doing consented to the investment of the money in the real estate.
The purchase in this case was made in 1928, before the present statute, requiring acts to be approved in advance, was passed. *Page 241
This court, in In re Guardianship of Lemley, 219 Iowa 765, 259 N.W. 481, 484, said at page 770:
"Until the enactment of chapter 259 of the Forty-third General Assembly, [Code 1931, sec. 12772 et seq.] it has been the general rule adopted and followed in this state that the court might approve an act which it might have authorized or directed to be done, and this with the same effect as though the order preceded the act. The appellants here contend that the investment as made and reported by the guardian was unauthorized and illegal because a prior order of court approving the same was not secured. We have many times held that investments so made but subsequently approved by the court would validate the investment. Until the enactment of chapter 259 of the Forty-third General Assembly, there was no prohibition in the statute preventing the court from approving investments made by fiduciaries without prior order of court. Robinson v. Irwin, 204 Iowa 98, 214 N.W. 696; In re Guardianship of Benson, 213 Iowa 492, 239 N.W. 79; In re Lawson's Will, 215 Iowa 752, 244 N.W. 739, 88 A.L.R. 316; Valley National Bank v. Crosby, 108 Iowa 651, 79 N.W. 383."
There is a claim made that the title to the property was defective. An examination shows that the defects have all been cured by the lapse of time and that the title is not defective.
It therefore follows that the lower court erred in not approving the purchase of the real estate and the final report of the guardian. Judgment and decree of the lower court must be, and it is hereby reversed and remanded, for an order in compliance with the provisions of this opinion. — Reversed and remanded.
Chief Justice and all Justices concur.
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In 1933, plaintiff appellee commenced an action to foreclose a mortgage securing a note of $7,000 against 80 acres of land in Marion county, Iowa. The note and mortgage were executed by the defendants herein on or about July 2, 1926, payable on an amortization basis. All payments on principal and interest were made up to August, 1931, at which time the indebtedness was reduced to $6,560. In 1930, the defendants sold the land under a contract of sale to one Rietveld, who failed to make the payments due on March 1, 1932, when the farm was returned to the mortgagors. The payments due in 1932 not having been made, plaintiff, the mortgagee, commenced this action to foreclose the mortgage. Before any judgment was taken, a motion for a continuance under the first Moratorium Act (Acts 45 G.A., ch. 182) was granted; a receiver was then appointed for the benefit of plaintiff, and the case continued until March 1, 1935.
On February 23, 1935, and before any decree of foreclosure was entered, defendants filed a motion for a continuance under the second Moratorium Act, known as Chapter 115 of the Forty-sixth General Assembly, asking that the case be continued until March 1, 1937. *Page 1193
On June 22, 1935, appellee filed a resistance to the motion on the following grounds: (1) that the mortgagors did not reside upon or operate the farm; (2) that they made no reasonable effort to pay or re-finance the mortgage; (3) that the mortgagors are insolvent and the mortgagee's security is inadequate; and (4) that there is no reasonable likelihood of the mortgagors' ability to get any financial advantage by further continuance.
The constitutionality of the act not being questioned, a consideration thereof is unnecessary.
Section 2 of the Moratorium Act in question provides that:
"In all actions for the foreclosure of real estate mortgages * * * in which decrees have not been entered * * *, the court, upon the application of the owner or owners of such real estate who are defendants in said cause, and shall upon hearing upon an application filed for a continuance, order said cause continued until March 1, 1937, unless good cause is shown to the contrary."
Under this statute this court has repeatedly held that the mortgagors are, upon an application, entitled to a continuance unless good cause to the contrary is shown, and the burden of proof is upon the mortgagee to establish such good cause by the evidence. Prudential Insurance Co. v. Brennan, 218 Iowa 666,252 N.W. 497; Craig v. Waggoner, 218 Iowa 876, 256 N.W. 285; Tusha v. Eberhart, 218 Iowa 1065, 256 N.W. 740; Mudra v. Brown, 219 Iowa 867,259 N.W. 773.
I. One of the grounds of resistance urged is that the mortgagors do not reside upon or operate the farm. At the time this application was filed, the farm, by consent of both parties, was in the possession of and controlled by a receiver for the benefit of appellee; it could, therefore, not have been in possession of the owners. Also there is nothing in the statute making it conditional that the owner reside on the farm in order to secure a continuance. It is a matter of common knowledge that very few farms made operating expenses in 1932 and 1933. The farm was in possession of the receiver for the benefit of appellee in 1934 and 1935, and appellee could not, therefore, be prejudiced by reason of the mortgagors' nonresidence on the farm. This ground, therefore, can hardly be considered a sufficient reason for refusing the continuance.
II. Another ground urged against a continuance is that the mortgagors made no reasonable effort to pay or re-finance *Page 1194
the mortgage. It is also a matter of common knowledge that in 1933 and 1934, owing to the acute financial depression existing at that time, it was practically impossible to obtain money for the purpose of re-financing any loan, and this ground of the resistance is also insufficient to warrant a refusal of a continuance.
III. The other grounds of the resistance to a continuance are that the mortgagors were insolvent and, therefore, unlikely of being able to meet the obligation of the mortgage if a continuance were granted until March 1, 1937. The evidence, however, fails to show that the mortgagors were insolvent, or that the mortgagors will be unlikely to meet their obligations if a continuance were granted. The evidence shows without dispute that in 1926, when this mortgage was executed, appellee considered the land ample security for a loan of $7,000. It also shows that in 1930, appellants made a contract for the sale of the property at a valuation of $10,000. It is a matter of common knowledge that, owing to the extreme drop in the price of farm products in 1932 and 1933, and the extreme drought of 1934, farm prices dropped to their lowest level during the depression.
The evidence shows that the mortgaged premises at the time of the trial had a valuation of $6,000. It is also a matter of common knowledge that since 1934, owing to an increase in the price of farm products, the value of farm lands has gradually increased. If such increase continues, the mortgagors may be able to pay the entire indebtedness due on the mortgage out of the proceeds of a sale of the land, if sold after March 1, 1937.
The evidence also shows without dispute that the mortgagors have a homestead in the city of Des Moines; that they are the owners of another eighty-acre tract of timber land in Clark county, now valued at several hundred dollars; and that they are also the owners of a 319-acre farm now encumbered by a mortgage of $15,000. Appellee has failed to show the reasonable value of this farm, and it cannot be said that the mortgagors are now so hopelessly insolvent that they will be unable to meet the mortgage indebtedness in question if this case be continued until March 1, 1937.
This case does not come within the class of cases showing that appellants are so hopelessly indebted that it will be impossible for them to meet the obligation if a continuance were granted; nor, on the other hand, does it come within that class of cases showing that appellants had more than sufficient means *Page 1195
to enable them under the then existing financial conditions to refinance the loan.
The burden of proof in this class of cases is upon the mortgagee to show good cause why a continuance should not be granted. Appellee has not favored us with a brief and argument, but we have carefully examined the record and have reached the conclusion that the mortgagee has failed to show good cause why the continuance should not be granted.
As it appears that an application for a continuance was applied for under the provisions of the second Moratorium Act, and as it appears that no good cause for refusing the continuance has been established by appellee, we are forced to the conclusion that appellants were entitled to a continuance. As no other errors appear in the record, this case is reversed only upon the ruling of the lower court in overruling defendants' motion for a continuance.
For the reasons hereinabove expressed, the judgment and decree of the lower court is hereby reversed and the same is remanded for further proceedings in harmony herewith. — Reversed and remanded.
DONEGAN, C.J., and ALBERT, MITCHELL, STIGER, ANDERSON, PARSONS, HAMILTON, and RICHARDS, JJ., concur.
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The parties, who were respectively about 22 and 19 years of age, were married October 13, 1923. Their only child, a daughter, was born almost exactly a year later. The cause alleged in the petition for a divorce is cruel and inhuman 1. DIVORCE: treatment. The defendant filed a cross-petition, grounds: praying a divorce for the same cause. The record cruel and discloses either a want of maturity on the part inhuman of both or a reckless disregard of normal treatment: marital obligations. It is suggested by counsel evidence: that, if modern social standards are applied, sufficiency. the conduct of the parties may, to a large extent, be excused. A reversal may, however, be readily founded upon far more rational and persuasive grounds. There is nothing in modern social standards, whatever that may mean, which can in any way affect the interpretation of statutory causes for divorce. These have existed in substantially *Page 714
the same form since the Code of 1851. The causes for divorce have not been materially modified, nor have the laws of Sinai, by divine authority, been revoked.
The appellee, according to his own testimony, began his career as a husband by boasting to his wife of his affection for and relations with other women. Not to be outdone by her husband, the wife found pleasure in the frequent society of other men, both married and unmarried. The cruelty alleged by appellee is largely the conduct of appellant with other men, but physical violence is also charged. The physical violence complained of occurred, however, either in resisting assaults made by him or in an effort on the wife's part to maintain her side of the fight. The evidence shows that appellee on numerous occasions inflicted gross physical violence upon appellant, and that she, evidently possessing considerable temper, resisted with some show of force. With one possible exception, we think it must be inferred from the evidence that appellant was innocent of serious moral turpitude, and there are grounds for charity in the interpretation of the evidence as to that. We shall not set out the evidence in detail, as we believe it possible for these young people, for the good of themselves and their infant child, to resume their marital relations.
Appellant was for a time an inmate of the sanatorium at Oakdale, but has apparently recovered her normal health. While there, she became acquainted with a young man by the name of Fisher, with whom she later started to go to New Mexico. Arriving at Washington, Iowa, she changed her mind, and wired her husband to meet her at Des Moines. This he did. She then told him what she had done, denying, however, any act of infidelity, and saying that, for the sake of Nadine, she desired to go home. Fisher returned to Des Moines with her. After considerable conversation and discussion among the three, the parties hereto agreed to return home. Appellant at that time informed appellee that she loved Fisher, and, by mutual arrangement, she was promised permission to correspond with him. Appellee, as a part of this arrangement, agreed, when they arrived home, that appellant might send Fisher, who was financially depressed, $15. This was to defray the expenses of returning the trunks and valises of Fisher and appellant from a point in New Mexico to which they had been sent. Upon the return of the parties to *Page 715
Harlan, where appellee's parents reside, appellant wrote a letter, expressing great affection for Fisher, and stating that a draft for $15 was inclosed. The letter, unsealed, was given to appellee, who retained it in his possession, and it was offered in evidence on the trial. Later, appellee procured $50 and gave it to appellant. She then went to Des Moines, for some purpose, but shortly returned. The parties have not since lived together.
Appellee confessed upon the witness stand that the girl whom he called "Peggy," whom he frequently mentioned to his wife, was a fiction.
The attitude and conduct of the parties, together with the traits of character displayed, are not readily explainable. Just what emotion or trait of human character could impel appellee to inflict gross physical violence upon his wife and later, with knowledge of the facts, solicit her and her self-confessed lover to go to dinner and a place of public amusement with him, we leave for later explanation. This occurred when they were in Des Moines, and immediately after the return from Washington. A reversal of these manifestations would have been largely conducive to appellee's domestic felicity.
It is true that this court has held, and this is the law, that the utter disregard of the husband of his marital vows, resulting in the destruction of his wife's health and happiness, is sufficient to constitute cruel and inhuman treatment such as to endanger her life, within the meaning of the statute. Craig v.Craig, 129 Iowa 192. Just what acts in every instance will amount to cruel and inhuman treatment, within the meaning of that term, is not susceptible of precise definition. The remaining clause, "such as to endanger life," while frequently given a liberal construction, is, nevertheless, substantive, and not relative. To what extent the conduct of appellant is the fault of appellee, no one can know. Both indulged a false philosophy of life, and each must assume some part of the responsibility for their error. Appellee was guilty of cruel and inhuman treatment of his wife. She was likewise guilty. He pretended to her to be faithless, but we doubt whether he was in fact. The record is full of evidence of crimination and recrimination. Appellee forgave appellant's conduct, and they agreed to forget the past and to live together. It is true that no plea of condonation was interposed by either party. The record is, in any event, barren of any evidence *Page 716
tending to show that appellee's life was endangered or his health appreciably impaired. He claims, at most, to have suffered somewhat from nervousness and loss of appetite and sleep. The showing at this point is insufficient.
Interpreting the record as a whole, we are of the opinion that appellee is in no position to complain of much of the treatment received by him from his wife. She stoutly denied that she ever committed adultery. The evidence on this point 2. DIVORCE: is not conclusive. In any event, there was a condonation: mutual agreement to forget the past and live pleading. together. This, of course, is condonation, which, to be available as a defense, must be affirmatively pleaded. Evidence thereof may, however, properly be considered in connection with other evidence as tending to explain the seriousness of the conduct of appellant, as viewed by appellee. Nadine is, apparently, an attractive child. It may be assumed that biological laws by which it is said the general average of human intelligence is largely maintained have operated more favorably in her case than in behalf of the parents. Appellee testified that his wife is fond of her. She has a right to their joint care and support.
It is our conclusion, upon the whole record, that neither party is entitled to a divorce, and the judgment is accordingly reversed. — Reversed.
ALBERT, C.J., and FAVILLE, De GRAFF, and MORLING, JJ., concur.
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This is an action in certiorari to review the action of the respondent, Grover W. Brown, Judge of the District Court of Fremont County, Iowa, in refusing to sustain the motion to dismiss in the case of State v. Maher pending in that county, made upon the part of the defendant, the petitioner herein.
Albert Maher had been indicted at the September 1937 term of the District Court of Fremont County, Iowa, commencing on September 28, 1937, at Sidney, Iowa. The next succeeding term was the November 1937 term, commencing on the 16th day of November of that year. The following term commenced on February 1, 1938, and at that term the motion to dismiss was filed on the grounds, (1) that two, terms of court had elapsed in which the defendant could have been tried, and (2) that the trial was not postponed on the application of the defendant, and the indictment was triable at both the September and November 1937 terms of court and nothing was done with the case until the February 1938 term, which was the third term.
The main facts are not in dispute. The grand jury of Fremont County on the 8th day of October, 1937, returned a true bill, which was presented in open court, in the presence of the grand jury, by their foreman, charging Albert Maher with the crime of operating a motor vehicle while intoxicated. He was admitted to bail in the sum of $500, but no bond for appearance was filed.
On the 5th day of October, 1937, a date prior to the finding of the indictment but subsequent to the commencement of the September 1937 term of the district court, Albert Maher was committed by the Commissioner of Insanity of Fremont County, Iowa, to the State Hospital for the Insane at Clarinda as an inebriate. His confinement in the State Hospital continued until the 4th day of December, 1937, when he was paroled for a period of one year in the care and custody of one Martha Maher.
On the 2d day of February, 1938, being the second day of the regular February 1938 term of the district court, Albert Maher appeared by his attorneys for arraignment. He waived *Page 343
reading of the indictment and time to plead, and pleaded not guilty.
On the next day, the 3d of February, 1938, petitioner's motion to dismiss the indictment came on for hearing before the presiding judge, the Honorable Grover W. Brown, respondent herein, and, after stipulation by counsel for both parties concerning the fact of the petitioner's commitment as an inebriate to the State Hospital at Clarinda and his parole therefrom on the 4th day of December, 1937, and after the taking of certain testimony and the argument of counsel, the court overruled the motion to dismiss. Thereupon Maher filed his petition for a writ of certiorari in this court.
Section 14024 of the 1935 Code of Iowa is as follows:
"14024. Delay in trial. If a defendant indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial at the next regular term of the court in which the indictment is triable after the same is found, the court must order it to be dismissed, unless good cause to the contrary be shown."
[1] It is the contention of the petitioner that confinement in the State Hospital at Clarinda is not good cause for delaying trial, within the provisions of the above quoted statute. In the prior decisions of this court the determination of whether good cause to the contrary has been shown rests largely in the discretion of the trial court. In Davison v. Garfield, 219 Iowa 1258,257 N.W. 432, 260 N.W. 667, this court, speaking thru Justice Claussen, stated at page 1262, 257 N.W., at page 434:
"The question is whether, on the question of dismissing the indictment, `good cause to the contrary' has been shown, and sufficient reason for delay in trial has been established. The determination of the problem rests largely in the discretion of the trial court. Each case must stand on its own facts."
In the case of State v. Rowley, 198 Iowa 613, at page 616,198 N.W. 37, at page 39, 199 N.W. 369, we find the following:
"We must assume that the trial judge, in continuing criminal causes at the end of any term, must have had these facts and the condition of the docket in mind when the continuance under a general order was entered. Nor do we think it *Page 344
was necessary that the record should disclose the specific reason or reasons why criminal causes were continued upon the termination of any term of court. It is reasonable to presume that they were continued because the time fixed for the term had closed. State v. Enke, 85 Iowa 35, 51 N.W. 1146. The trial judge must exercise a wide and wise discretion in such matters, and the administration of criminal law does not require the impossible to be done. See State v. Arthur, 21 Iowa 322."
And in the very recent case of Ferguson v. Bechly, 224 Iowa 1049,277 N.W. 755, this court again cited with approval the above cases.
Therefore, in determining whether or not the respondent in this case abused the discretion that was his, depends entirely upon the record in the case.
Albert Maher was committed to the State Hospital for his own benefit. It was essential that the treatment be continuous and in order to secure that it was necessary that he be confined in the hospital under such commitment until the 5th day of December, 1937.
[2] An inebriate is defined as being a "drunkard, especially an habitual drunkard." Funk and Wagnalls New Standard Dictionary. Inebriacy is defined as "the state or habit of being inebriated; drunkenness, especially habitual intoxication." Webster's New International Dictionary. The statutory provisions attending the commitment, custody, treatment and maintenance of inebriates are to be found in chapter 173, Code of Iowa of 1935.
Section 3478 of said chapter provides that:
"Commitment. Persons addicted to the excessive use of intoxicating liquors * * * may be committed by the commissioners of insanity of each county to such institutions as the board of control may designate."
Section 3479 provides:
"Statutes applicable. All statutes governing the commitment, custody, treatment, and maintenance of the insane shall, so far as applicable, govern the commitment, custody, treatment, and maintenance of those addicted to the excessive use of * * * intoxicating liquors."
Of the applicable statutes pertaining to the insane there is section 3509, which provides as follows: *Page 345
"Patient accused of crime. When an inmate of any state hospital who was committed to such hospital at a time when he was formally accused of crime in any county of the state, regains his reason, the superintendent shall thereupon issue his warrant for the return of such person to the jail of the county in which such charge is pending and notify the sheriff of such county accordingly who shall proceed to such hospital and execute such warrant."
[3] Albert Maher having been committed to a State hospital, was subject to the exclusive jurisdiction of the board of control of state institutions. He was committed to the State hospital for treatment, and until he was cured of the disability from which he was suffering the criminal court would have no right to force him to stand trial. No man charged with a crime should be brought to trial until he is mentally and physically able to present himself in court. An inebriate is not in the mental condition that is necessary in order properly to present his defense in court, and until he is cured and released from the hospital (and the superintendent of the hospital is to determine when he is cured) the criminal court would have no right to force him to trial.
In the case of Quaintance v. Lamb, 185 Iowa 237, at pages 240, 241, 170 N.W. 398, we read:
"* * * the question for determination is whether the accused shall be detained in the Hospital for Insane, under and by virtue of the order of the commissioners of insanity, until found by the superintendent of the Hospital for the Insane to be cured, or be tried, as ordered by the district court. The proceedings resulting in the order of the commissioners of insanity were in pursuance of Sections 2279 of the Code, which provides that:
"`On a written application made by any citizen, stating under oath that a person confined in any prison within the county, charged with a crime but not convicted thereof nor on trial therefor, is insane, the commissioners shall cause said prisoner to be brought before them, and if they find that he is insane they shall direct his removal to and detention in one of the hospitals for the insane, issuing their warrant therefor, and stating therein that he is under criminal charges, and the superintendent of the hospital designated in such warrant shall *Page 346
receive and keep such prisoner as a patient. The warrant shall be executed by the sheriff or his deputy by delivering the prisoner to the superintendent in person. After an investigation such as contemplated in this section, the commissioners shall not entertain a like application within six months on behalf of said person.'
"The situation of petitioner was, in all respects, as described in this statute: i.e., confined in prison, charged with crime, and neither convicted nor tried. The commissioners of insanity, then, did not exceed their authority, if it can be said to have existed as against the power of the district court to proceed with the trial upon indictment returned in such a case. The section following, however (Code Section 2280), defines when the accused shall be returned from the hospital:
"`When any insane person shall be confined in either hospital under the preceding section, the superintendent in whose charge he may be shall, as soon as such person is restored to reason, issue his warrant to the sheriff of the county from which such person is received, directing him to return such person to the jail of said county, which shall be done by said sheriff as soon as practicable, when the accused shall be returned to the jail of the proper county to answer to the charge against him.'
"This plainly contemplates that the prisoner shall be treated at the Hospital for the Insane until restored to reason. He could not be put on trial before. The superintendent of the hospital is to determine when he is cured, and issue his warrant accordingly. There seems to be no escape from the conclusion that, under these statutes, the accused should have been taken to the Hospital for the Insane, and there retained as a prisoner and treated as a patient until the superintendent found his reason restored, and issued a warrant for his return to the jail of the county, after which he would be subject to being put on trial."
Clearly, then, Albert Maher could not be put on trial until he was released from the hospital at Clarinda.
[4] However, petitioner contends that even if confinement to the hospital is good cause, he was free and subject to trial during the November 1937 term, so that such confinement was not good cause at the November 1937 term. This record shows without any dispute that Maher was not released until three *Page 347
weeks after the November term had started. We quote from the finding of the court on the motion to dismiss:
"* * * The court also finds that the next term of court following the September Term, 1937, of the district court of Fremont County, Iowa, commenced on November 16, 1937, and that the active part of that term ended within three weeks, and the presiding judge (the respondent) was required to open court the next week at Glenwood, Iowa, according to the assignment of judges of the terms of court of the said Fifteenth Judicial District of Iowa. The court further finds that the defendant, Albert Maher, continued in the Hospital for the Insane as an inebriate until December 5, 1937. That this was after the three-week period had ended of the November, 1937, Term of this said court, * * *."
It is true that the November term of court did not end until the first day of February, 1938; that it was the custom in that district as it is in a great many, to keep the term open as long as possible so that orders of court might be secured. However, it appears without any dispute, that the first three weeks were the active weeks and that the presiding judge under the assignment was required to open court the week following at Glenwood; that there was no judge present or presiding. The only possible way that the petitioner could have been tried at the regular November 1937 term would have been by the appointment of a special judge and reconvening of the petit jury. Certainly no such burden was cast upon the state in its role as prosecutor.
As was said by this court in State v. Rowley, 198 Iowa 613,616, 198 N.W. 37, 39, 199 N.W. 369:
"* * * the administration of criminal law does not require the impossible to be done."
It thus appears that the trial court, respondent herein, exercised a sound discretion in determining that good cause existed for want of prosecution of the petitioner at the November 1937 term, and it necessarily follows that the writ of certiorari must be, and it is hereby, annulled. — Writ annulled.
Chief Justice and all Justices concur. *Page 348
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MANDATE
THE STATE OF TEXAS
TO THE 131ST JUDICIAL DISTRICT COURT OF BEXAR COUNTY, GREETINGS:
Before our Court of Appeals for the Fourth District of Texas on April 8, 2015, the cause upon appeal to revise
or reverse your judgment between
In the Interest of V. G., et al., Children, Appellant
V.
No. 04-14-00802-CV and Tr. Ct. No. 2013-PA-02840
was determined, and therein our said Court of Appeals made its order in these words:
In accordance with this court’s memorandum opinion of this date, the
trial court’s termination order is AFFIRMED.
WHEREFORE, WE COMMAND YOU to observe the order of our said Court of Appeals for the Fourth
District of Texas, in this behalf and in all things have the order duly recognized, obeyed, and executed.
WITNESS the Hon. Sandee Bryan Marion, Chief Justice of the Court of Appeals for the Fourth District of
Texas, with the seal of the Court affixed and the City of San Antonio on June 17, 2015.
KEITH E. HOTTLE, CLERK
Cynthia A. Martinez
Deputy Clerk, Ext. 53853
BILL OF COSTS
TEXAS COURT OF APPEALS, FOURTH DISTRICT, AT SAN ANTONIO
No. 04-14-00802-CV
In the Interest of V. G., et al., Children
v.
(NO. 2013-PA-02840 IN 131ST JUDICIAL DISTRICT COURT OF BEXAR COUNTY)
TYPE OF FEE CHARGES PAID BY
SUPREME COURT CHAPTER 51
FEE $50.00 PAID RAYMOND VALE
FILING $100.00 PAID RAYMOND VALE
INDIGENT $25.00 PAID RAYMOND VALE
STATEWIDE EFILING FEE $20.00 PAID RAYMOND VALE
CLERK'S RECORD $174.00 UNKNOWN N/A
Balance of costs owing to the Fourth Court of Appeals, San Antonio, Texas: 0.00
Court costs in this cause shall be paid as per the Judgment issued by this Court.
I, KEITH E. HOTTLE, CLERK OF THE FOURTH COURT OF APPEALS OF THE STATE OF
TEXAS, do hereby certify that the above and foregoing is a true and correct copy of the cost bill of
THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS, showing the charges and
payments, in the above numbered and styled cause, as the same appears of record in this office.
IN TESTIMONY WHEREOF, witness my hand and the Seal of the COURT OF APPEALS for
the Fourth District of Texas, this June 17, 2015.
KEITH E. HOTTLE, CLERK
Cynthia A. Martinez
Deputy Clerk, Ext. 53853
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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1432
State of Minnesota,
Appellant,
vs.
Jose Martin Lugo, Jr.,
Respondent.
Filed February 29, 2016
Reversed and remanded
Cleary, Chief Judge
Nobles County District Court
File No. 53-CR-15-141
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Kathleen A. Kusz, Nobles County Attorney, Joel B. Whitlock, Assistant County Attorney,
Worthington, Minnesota (for appellant)
Melvin R. Welch, Welch Law Firm, LLC, St. Paul, Minnesota (for respondent)
Considered and decided by Cleary, Chief Judge; Chutich, Judge; and Reilly, Judge.
UNPUBLISHED OPINION
CLEARY, Chief Judge
In this appeal from a pretrial order, appellant State of Minnesota argues that the
district court erred as a matter of law by suppressing all evidence discovered as a result of
a canine sniff and subsequent search of respondent Jose Martin Lugo, Jr.’s vehicle. The
state argues that the district court erred by dismissing two charges against respondent that
were based on that evidence. Because police officers articulated facts that, under the
totality of the circumstances, gave rise to reasonable suspicion that respondent was engaged
in drug-related criminal activity, officers lawfully conducted the canine sniff. Evidence
arising from the sniff should not have been suppressed. We reverse and remand.
FACTS
On February 23, 2015, a police officer with four years of general policing
experience and six months’ experience on the Buffalo Ridge Drug Task Force was
conducting surveillance of a residence in Worthington, Minnesota. The task force had
executed a search warrant at the residence approximately four months earlier and as a
result, had seized controlled substances and arrested respondent for controlled-substance
possession.
At about 8:00 a.m. on February 23, the officer observed a car parked in the
driveway, with one person in the driver’s seat. The officer watched the vehicle for
approximately 40 minutes in total. Police dispatch had informed the officer that the
vehicle’s registered owner had an active felony warrant for possession of a firearm by an
ineligible person and fifth-degree controlled-substance possession. The officer observed
the person in the driver’s seat lie across the front seat for several minutes, apparently
reaching toward the passenger side. The person then exited the vehicle, walked out of the
officer’s sight, and returned to the vehicle approximately 12 minutes later. The person sat
2
in the driver’s seat again, reached into the vehicle’s back seat, and then backed out of the
driveway. The officer followed the car and radioed its location to other officers, asking
that the vehicle be stopped on the basis of the owner’s felony warrant.
A second officer pulled behind the vehicle and turned on his emergency lights. The
first officer—who had originally observed the vehicle and had followed the second officer
when he pulled the vehicle over—testified that the vehicle first pulled into an automotive
business parking lot, then turned in the opposite direction and drove 30 to 50 yards before
parking in a stall in front of a restaurant. After the vehicle stopped, the driver briefly bent
out of the second officer’s sight and then returned to where the officer could see him. The
second officer approached the vehicle and asked the driver to step out of the vehicle. The
first officer approached the passenger side of the vehicle and immediately recognized the
driver, the respondent in this case, based on previous contacts. The first officer knew at
this time that respondent had recently been arrested for fifth-degree controlled-substance
possession and that his Minnesota driver’s license had been revoked. The second officer
patted respondent down, found nothing, and placed him in the officer’s patrol car while the
officer ran respondent’s information through the car’s computer. The first officer informed
the second officer that respondent’s driver’s license was revoked, and the patrol car
computer confirmed this information.
While respondent sat in the patrol car, the second officer asked him who owned the
vehicle. Respondent incorrectly identified the vehicle owner and changed his answer
during the course of questioning. The officer continued questioning respondent, who
3
replied “man just take me to jail, please.” When the officer asked if there were illegal items
in the vehicle, respondent said, “not that I know of.”
When the second officer removed respondent from the vehicle, the first officer was
able to see into the vehicle. The first officer observed that the vehicle’s center console
molding had been removed and that the interior of the vehicle “had a lived in look.” The
officer knew that respondent had a history of arrests related to controlled substances, was
not the registered owner of the vehicle, and had just left a “known drug house.” Based on
these factors, and on the “unusually long time [it took respondent] to stop his vehicle,” the
first officer asked a third officer to bring his K9 partner to conduct an exterior sniff of the
vehicle. The dog alerted to the odor of a controlled substance at the driver’s door and the
trunk. The first officer then searched the vehicle and found a deodorant container on the
back seat that contained baggies of a white crystalline substance. One of the baggies
field-tested positive for methamphetamine. Burnt residue in a glass pipe found in the trunk
also field-tested positive for methamphetamine. Officers arrested respondent for
possession of a controlled substance.
Respondent was subsequently charged with second-degree controlled-substance
crime (possession) under Minn. Stat. § 152.022, subd. 2(a)(1) (2014); driving after
revocation, in violation of Minn. Stat. § 171.24, subd. 2 (2014); and possession of drug
paraphernalia, in violation of Minn. Stat. § 152.092 (2014). Respondent moved to suppress
the evidence found as a result of the vehicle search, arguing that police officers
4
unjustifiably expanded the scope of the search after the initial stop. Respondent did not
challenge the legality of the initial stop.
In response, the state argued that numerous factors gave police officers reason to
suspect that respondent was engaged in drug trafficking, therefore justifying an expansion
of the search. The district court found the first police officer’s omnibus hearing testimony
entirely credible, but the court was not persuaded that police had a reasonable, articulable
suspicion to expand the search. The district court granted respondent’s motion to suppress
and dismissed the two counts that were based on controlled-substance and
drug-paraphernalia possession. The state seeks review of the district court’s pretrial order
suppressing evidence from the search.
DECISION
Where the state appeals a pretrial suppression order under Minn. R. Crim. P. 28.04,
it “must clearly and unequivocally show both that the [district] court’s order will have a
critical impact on the state’s ability to prosecute the defendant successfully and that the
order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotations
omitted). “Dismissal of a complaint satisfies the critical impact requirement.” State v.
Trei, 624 N.W.2d 595, 597 (Minn. App. 2001), review dismissed (Minn. June 27, 2001).
In this case, the state argues that the district court’s order had a critical impact on its ability
to successfully prosecute respondent because the order resulted in dismissal of two of the
three counts in the complaint, including the only felony count. Without the suppressed
5
methamphetamine and drug paraphernalia, the state lacks probable cause to support two of
the three charges. The state has therefore met the critical impact standard.
The state must also show that the district court’s order constituted clear error.
“When reviewing a district court’s pretrial order on a motion to suppress evidence, we
review the district court’s factual findings under a clearly erroneous standard and the
district court’s legal determinations de novo.” State v. Gauster, 752 N.W.2d 496, 502
(Minn. 2008) (quotation omitted). In this case, the relevant facts are undisputed on appeal.
Whether a search is justified by reasonable suspicion or by probable cause is a legal
determination that we review de novo. State v. Burbach, 706 N.W.2d 484, 487 (Minn.
2005).
The United States and Minnesota Constitutions prohibit “unreasonable searches and
seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. “Generally, a search conducted
without a warrant issued upon probable cause is per se unreasonable.” Burbach, 706
N.W.2d at 488 (quotation omitted). But police
may temporarily detain a suspect without probable cause if
(1) the stop was justified at its inception by reasonable,
articulable suspicion, and (2) the actions of the police during
the stop were reasonably related to and justified by the
circumstances that gave rise to the stop in the first place.
State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011) (quotations omitted). Police may
expand the scope of a stop to investigate “other suspected illegal activity . . . only if the
officer has reasonable, articulable suspicion of such other illegal activity.” State v.
Wiegand, 645 N.W.2d 125, 135 (Minn. 2002). Each incremental intrusion that is not
6
“closely related to the initial justification for the search or seizure” must be supported by
“independent probable cause or reasonableness” to be valid. State v. Askerooth, 681
N.W.2d 353, 364 (Minn. 2004).
Reasonableness is evaluated under an objective, totality-of-the-circumstances test,
which asks if the facts available to the officer at the time of the stop would “warrant a
[person] of reasonable caution in the belief that the action taken was appropriate.” State v.
Smith, 814 N.W.2d 346, 351-52 (Minn. 2012) (quotations omitted). Appropriateness is
further evaluated based on “a balancing of the government’s need to search or seize and
the individual’s right to personal security free from arbitrary interference by law officers.”
Id. at 352 (quotations omitted). It is the state’s burden to “establish[ ] the validity of a
warrantless search.” Askerooth, 681 N.W.2d at 376.
The reasonable-suspicion standard is “not high.” Diede, 795 N.W.2d at 843
(quotation omitted). But it “requires at least a minimal level of objective justification.”
State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quotation omitted). A police
officer’s “hunch, intuition, gut reaction, [or] instinctive sense” is insufficient to meet the
standard. State v. Baumann, 759 N.W.2d 237, 240 (Minn. 2009). “Reasonable suspicion
must be based on specific, articulable facts that allow the officer to be able to articulate at
the omnibus hearing that he or she had a particularized and objective basis for suspecting
the seized person of criminal activity.” Diede, 795 N.W.2d at 842-43 (quotation omitted).
An officer must be able to “precisely” explain the factual basis for his suspicion. Baumann,
759 N.W.2d at 240. Because police officers receive special training, in the course of
7
articulating reasonable suspicion they “may make inferences and deductions that might
well elude an untrained person.” State v. Flowers, 734 N.W.2d 239, 251-52 (Minn. 2007).
On appeal, respondent does not challenge the initial stop, the pat-search, his
temporary detention in the squad car before his arrest, or questioning by police during that
detention.1 The parties dispute whether police officers had reasonable, articulable
suspicion of respondent’s drug-related criminal activity to allow them to expand the scope
of the initial stop to conduct a canine sniff. In the district court, the state argued that the
officers’ prior knowledge and the observations they made during the initial stop provided
a particularized, objective basis for their suspicion that respondent was engaged in drug
trafficking. At the omnibus hearing, the first officer testified that he “observed numerous
indicators of illegal drug trafficking,” including: (1) respondent was not the registered
owner of the vehicle; (2) the vehicle had a “lived-in look”; (3) the vehicle’s center console
had been removed and the plastic pieces tampered with; (4) it took respondent an
“unusual[ly] long time to stop” after police initiated the stop; and (5) respondent was
leaving a “known drug house.” Additionally, the officer testified that when he approached
1
In the district court, the state and respondent disputed how long police officers required
respondent to wait before the K9 officer arrived, arguing that respondent was detained for
between 5 and 20 minutes. The Supreme Court recently held that “a police stop exceeding
the time needed to handle the matter for which the stop was made violates the
Constitution’s shield against unreasonable seizures.” Rodriguez v. United States, 135 S.
Ct. 1609, 1612 (2015). The district court’s order did not address the duration of the stop,
but focused on whether officers unlawfully expanded the scope of the stop. Respondent
does not challenge the duration of the stop on appeal. For that reason, and because we hold
that police officers’ reasonable suspicion of criminal drug-related activity justified
expansion of the scope of the initial stop, Rodriguez is inapplicable here.
8
the car after respondent had been pulled over, he immediately recognized respondent and
knew that he had recently been arrested for controlled-substance possession. The officer
testified that he also considered the fact that in June 2013, the registered owner was arrested
for possession of drug paraphernalia. But the testifying officer did not explain how each
of these factors formed an objective, particularized basis for his suspicion that respondent
was engaged in drug trafficking. The state’s memorandum in opposition to respondent’s
motion to dismiss did explain how some, but not all, of the factors supported reasonable
suspicion.
Despite the state’s failure to precisely explain each fact that formed a basis for the
officers’ reasonable suspicion, the state did set forth “at least a minimal level of objective
justification.” Timberlake, 744 N.W.2d at 393 (quotation omitted). The state explained
that people will tamper with a vehicle’s interior paneling to hide drugs behind the panels.
And the state asserted that when a police officer pulls a driver over and it takes the driver
a long time to stop, it gives a person in the vehicle “time to dispose or hide contraband.”
We agree with the district court that the state offered several facts that were not
indicative of criminal drug-related activity. And the district court was correct in observing
that respondent was apparently not under the influence of drugs, nor were there visible
drugs or drug paraphernalia in the car or on respondent’s person. But police officers were
able to “point to something objectively supporting [their] suspicion.” State v. Britton, 604
N.W.2d 84, 87 (Minn. 2000) (emphasis added).
9
Police officers initiated the stop because they had reason to believe that the driver
had an active felony warrant for possession of controlled substances and possession of a
firearm. Officers had suspicion of drug-related activity from the beginning. Once officers
stopped respondent, they made observations that gave them reason to believe that
respondent was engaged in illegal drug-related activity. The condition of the vehicle’s
center console, the unusually long time it took respondent to stop, the fact that respondent
had just departed a house under surveillance for illegal drug-related activity, respondent’s
alleged drug possession close to the time of the stop, and respondent’s unusual statements,
when taken together, form a sufficiently particularized and objective basis for the officers’
reasonable, articulable suspicion. The district court therefore erred in suppressing the
evidence discovered as a result of the canine sniff and dismissing the two counts that were
based on that evidence.
Reversed and remanded.
10
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01-03-2023
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06-09-2016
|
https://www.courtlistener.com/api/rest/v3/opinions/4350184/
|
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SHELLY GAIL GIBSON and
AFFORDABLE ASSETS REAL ESTATE CO., a Florida corporation
Appellants,
v.
KINGS POINT SIGNATURE REAL ESTATE, LLC, and
BEN SCHACHTER,
Appellees.
No. 4D18-1848
[December 13, 2018]
Appeal of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Edward A. Garrison, Judge; L.T.
Case No. 502017CA010413XXXXMB.
Gary P. Lightman of Lightman & Manochi, Philadelphia, for appellants.
Brian H. Koch of Greenberg Traurig, P.A., Fort Lauderdale, for appellee
Kings Point Signature Real Estate, LLC.
PER CURIAM.
Affirmed.
WARNER, GROSS and TAYLOR, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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01-03-2023
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12-13-2018
|
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