170 Iowa 155 | Iowa | 1915
General Assembly. The question is, whether plaintiffs practiced a fraud upon appellant, as alleged. It is almost entirely a question of fact. The fraud alleged is, that the presence of appellant in Clay County, Iowa, was procured by plaintiffs upon the representation that if he would come to Spencer, Iowa, he would there have delivered to him an automobile as payment of the $1,200 note of plaintiffs which Swenson held, and by plaintiffs’ concealing from him certain facts which, if he had known, would have caused him not to come within the jurisdiction. Appellant says his presence in Iowa was not voluntary; that plaintiffs’ purpose was unknown to him. 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. Appellant cites upon this point: Dunlap v. Cody, 31 Iowa 260; Mooney v. U. P. R. Co., 60 Iowa 346; Toof v. Foley, 87 Iowa 8; Mahoney v. Insurance Co., 133 Iowa 570; Allen v. Wharton, 59 Hun. 622, 13 N. Y. Sup. 38; Townsend v. Smith, 47 Wis. 623; Van Horn v. Great Western Mfg. Co., 37 Kans. 523; Wood v. Wood, 78 Ky. 624; Chubbuck v. Cleveland, 37 Minn. 466; Wauzer v. Bright, 52 Ill. 35; Heston v. Heston, 52 N.J. Eq. 91; Battelle v. Youngstown, etc., 84 Tenn. 355; Frawley v. Casualty Co., 124 Fed. 259; Cavanaugh v. Manhattan, 133 Fed. 818.
Plaintiffs both signed the notes and were interested in
It is the claim of appellant that plaintiffs had been planning to have Swenson come to Iowa in order to serve him with notice, and that they concealed such purpose from him. There is no other claim of concealment. If such was not their purpose, then, of course, there was no concealment of it. The evidence, which will be later pointed out, shows that until after Crandall had the conversation with Gillespie on the morning of October 28, and when Crandall supposed Swenson had already started to Spencer, there was no intention to sue Swenson, consequently no fraud or concealment.
Fraud and fraudulent intent and purpose may be inferred-from the acts and representations of the parties and all the facts and circumstances shown. Bean, etc., Mfg. Co. v. Standard Spoke Co., 131 Fed. 215. But as between honest and dishonest motives and purposes, we should presume honesty of intent and purpose unless the facts and circumstances are such as to satisfy the mind that the acts and statements relied upon are fraudulent or dishonest.
The legal propositions seem to be settled, so that it is unnecessary to discuss the cases. ¥e do not understand counsel for appellees to controvert the legal propositions in appellant’s authorities before cited. They contend, however, that under the evidence there was no fraud or unfairness, and that appellant came voluntarily to Spencer, Iowa. After a careful examination of the record, we are of opinion that the position of appellees ought to be sustained.
Without going too much into detail, we shall state the more important facts appearing in the record. Although the hearing was of a motion, supported by affidavits, with counter-affidavits, the record is voluminous for such a case, and there, is necessarily more or less repetition. The facts are, in the main, without substantial dispute, although there
We shall state the substance of the affidavits and testimony bearing upon the alleged fraud by which appellant claims plaintiffs induced him to come to Iowa. October 4, 1912, plaintiff, Crandall, sent appellant a telegram making inquiry whether he would be at home the next day. Appellant replied by telegraph from Nebraska that he' would be at home.
■ An important feature of the case is a conversation had between Heald and defendant, George Gillespie, at Omaha on the morning of October 28th, shown by the affidavit and examination of Crandall, and there is no dispute in the testimony either as to the conversation itself having taken place or as to what Gillespie told Crandall, so that this must be taken as true. As to this matter, Mr. Crandall says that he was then on. his way to California and had purchased his ticket; that on the morning of the 28th he interviewed Gillespie in Omaha and questioned him regarding the trip of Mr. Swenson and Mr. Johnson to Spencer, Iowa, at the time of procuring the notes in controversy, and that Gillespie told
It appears in the record that Gillespie had negotiated the $2,500.00 note to the defendant Savings Bank about September 10, 1912. This note had been indorsed by Trowbridge to Swenson, and by Swenson to Gillespie.
Crandall also states that after the conversation with Gillespie he concluded for the first time to bring suit against Swenson to.recover the notes; that he went to the telegraph
These are the main facts. There' may be some others which will be referred to later. We are' satisfied from the record that up to the time of the conversation between Crandall and Gillespie there was no bad faith on the part of plaintiffs or their attorney in the negotiations with Swenson; neither was there any bad faith after that time. Crandall testifies that up to that time, and at the time of the conversation with Swenson on the 27th of October, he' fully intended to let Swenson have the ear, the price to be agreed upon between Swenson and Heald. The $1,200.00 note did not become due until December 26,1912, and it is argued by appellant that the negotiation in regard to trading the automobile for the note not yet due was unusual, but the evidence shows that Crandall had ordered an automobile some time' before and was having trouble to get it; that both plaintiffs were hard pressed for funds and their credit had become impaired because of the California deal and they were anxious to turn the automobile on the note; Swenson lived in another state, and it would take some time for the parties to make the turn.
It is argued by appellant that the plaintiffs and their attorney, Heald, assumed a friendly attitude towards Swenson for the purpose of misleading him. The record shows that, while plaintiffs believed that Swenson was concerned in the fraud, they had no proof of that fact up to the time of the conversation with Gillespie. As some of the witnesses put it, they concluded that Swenson, Trowbridge and Gillespie would all stand together.
It is urged by appellees that when Crandall had the conversation with Gillespie on the morning of October 28th, this was the first time they had any tangible proof to substantiate their suspicions of Swenson’s participation in the fraudulent transaction of the notes. Swenson and Johnson both filed their affidavits on this hearing, but neither of them deny Gillespie’s statement to Crandall that they acted as Gillespie described while in Spencer. The matters referred to by Gillespie have a bearing on the question as to whether Swenson was an innocent holder of the $1,200.00 note and as to whether he participated in the 'fraud alleged to have been perpetrated upon plaintiffs by Trowbridge and Gillespie.
Counsel for appellant place stress on the fact that some of the earlier letters from Crandall to Swenson suggest that Swenson assist them in disposing of the California land, but
Other circumstances are referred to in argument at considerable length, but the opinion is already too long, and we shall not pursue the subject further. Our conclusion is that it has not been shown that appellant was fraudulently induced