150 Iowa 665 | Iowa | 1911
The parties to this action are brothers, and, prior to October of the year 1907, were engaged as partners in a mercantile business at Cottonwood, Minn. Some time in that month they traded this business to one Paul for real estate and other property near Alliance in the state of Nebraska. The property received by them in the exchange was three thousand and forty acres of land at $15 per acre, seven hundred and thirty-six head of sheep, eleven head of horses, three cattle, two hogs, some old grain, and the machinery used 'on the property amounting to $1,468. The sheep were invoiced at $5,152, and the total consideration was $52,120. In making the exchange each of the parties turned in some of his own personal property, and defendant furnished $2,620 more than his share. For the amount of this difference plaintiff and his wife gave defendant a note.. Not desiring to retain any interest in this property, plaintiff entered into negotiations with the defendant, whereby he claims that on
Plaintiff says that he was not to pay any part of the commission, and that what came to him was to be net; thus arises the issues in one of the counterclaims tendered by defendant. There was a mortgage upon part of the personal property conveyed to the defendant represented by two notes in the sum of $2,500 each, which was outstanding at the time the parties made their partial settlement and agreement in October. Plaintiff claims that, as part of the consideration for his agreement, a bill of sale for the transfer of his interest in all the personal property acquired by the parties jointly was executed, and that defendant agreed to pay both of these outstanding notes; that he (defendant) paid one of them, but refused to pay the other; and that plaintiff since that time has been compelled to take up the note, and he now asks judgment for the amount he paid with interest to. date. Thus arises the issue presented by plaintiff in his petition.
The verdict upon these instructions was for the plaintiff in the sum of $1,922.10. From, this it is apparent that the plaintiff was allowed the amount of his claim for the amount paid by him on the note, and that defendant was allowed the sum of $800 on his counterclaim for commissions paid. In virtue of the withdrawal by defendant’s counsel of all matters in controversy arising prior to October 2, 1907, it will be observed that the trial court was correct in limiting the issues presented by defendant in his counterclaim to the amount he sought to recover for- com
The trial court refused to permit defendant to 'show .that the sheep covered by the bill of sale were taken from him by the mortgagee or his representative and sold. Objection to testimony-tending to show the amount of damage which defendant sustained by reason of this claimed breach of warranty was also sustained. These rulings are complained of, and it is insisted that under the issues tendered by the defendant these matters should have been submitted to the jury. If defendant be in such position that he can not claim there was any breach of warranty, it is immaterial what became of the property conveyed to him by the hill of sale, and in no event would defendant be entitled, fin view of the record now before us, to counterclaim for breach of warranty. If he paid more for his joint obligations than he was required to do, the mortgage being his as well as plaintiff’s his remedy would be an action to recover from plaintiff the amount which he paid in excels of the sum he should have paid as a joint obligor; for, as we have already said, there was not, under the facts disclosed in this case, a breach of the war
Finding no prejudicial error in the record, the judgment must be, and it is, ajfirmed.