81 Iowa 296 | Iowa | 1890
The plaintiff asks to recover eighteen hundred and fifty-seven dollars and seventy-six cents, as due him under this contract, on accounts and bills receivable of the firm taken by him as good, which were uncollectible, in excess of the amount collected by him on bills listed as bad, and on account of collections on bills receivable by the corporations, listed as bad, in excess of the amount of those listed as good that were uncollectible. This claim, also, includes sixty-three dollars and forty-one cents claimed by plaintiff as his half of moneys
As a further cause of action plaintiff alleges, in amendment to his petition, that through the fraud of the defendant and by accident and mistake, certain items were omitted from the statement of the assets of the fence company, and certain parts of its assets were inventoried at much less than cash value; that by reason thereof his thirteen shares of stock sold to the defendant were made to appear of much less than their real value. Wherefore he asks an accounting and judgment for the value of said stock over that formerly placed upon it. The answer of- defendant denies any indebtedness on account of shortages and collections, and denies that there was any fraud, accident or mistake, nor that any items were omitted or any assets of the fence company undervalued as alleged. It will be seen from this statement of the pleadings, that the issues are, whether there is any sum due to the plaintiff under the agreement on account of shortages and collections, and whether, through fraud, accident or mistake, there were any omissions or undervaluations in estimating the assets of the fence company that affect the value of plaintiff’s stock.
The petition in the former action was based upon a clause in the agreements following the provisions for settlement that “The differences in values shall be settled by cash or notes (short time) satisfactory to both parties.” It was alleged that there was an agreement as to values of certain property, and a division thereof; that taken by the defendant exceeding in value that taken by the plaintiff in a certain sum, which plaintiff asked to recover under the contract. The defendant answered admitting the agreement as to
The issues thus joined were whether there was any error in computing the values agreed upon, and whether upon a correct computation there was anything due to the plaintiff under the agreement more than had been paid. There was no issue in the former case as to whether anything was due to the plaintiff on an accounting under the agreements for shortages and collections, nor were there any issues as to omissions or under-valuations, by fraud, accident or mistake in estimating the fence company’s assets. The cause of action as shown by the pleadings in that case and in this are entirely distinct, and neither is incident to or essentially , connected with the subject-matter of the other. In the ■former action the plaintiff by amendment asked to recover under the contract on account of shortages and collections, thus presenting the same claim that is presented in this action; though probably not covering so many items. This amendment was by leave of court withdrawn and dismissed without prejudice, thus taking the claim as entirely out of the case as if the amendment had never been made. On the trial of the former case there was some testimony with respect to this subject, but it is evident that this claim of the plaintiff was not in issue, nor passed upon in that case. Our conclusion is that the former adjudication is not a bar to either of plaintiff’s causes of action as set up in this case.
IN. We infer from the overruling of defendant’s motion to transfer the case to the law docket that it was tried as in equity, yet upon the trial the court sustained defendant’s objections to all testimony offered by the plaintiff in support of his second claim, holding the same to be barred by the former adjudication. The testimony so offered was not taken, and hence is not before us so that we can render judgment thereon.