134 Iowa 536 | Iowa | 1907
The somewhat peculiar complication of issues involved in this appeal can be most readily understood from a recitation of the facts, most of which are admitted, stated in narrative form and chronological order.
Eor some time prior to September 30, 1903, plaintiff, -H. M. Doolittle, was engaged in the retail drug business at the town of Murray, Iowa. He had on hand a stock of goods which he estimated would invoice about $4,500. The business was unsatisfactory. He had suffered at least two or three losses by fire, his insurance had been canceled, his capital was all invested in the stock, and, as, the sales were insufficient to enable him to meet his bills as they fell' due, he was anxious to sell the property and business. Among his creditors, and, so far as the record discloses his principal creditors, were J. W. Edgerly & Co., wholesale druggists, at Ottumwa, Iowa, to whom he owed $591.37, and the Churchill Drug Company of Burlington, Iowa, to -whom he owed $119.68. If there were any other creditors, this
This contract made and entered into by and between II. M. Doolittle, of Murray, Iowa, and J. O. Murray & Co., of Ottumwa, Iowa, this 30th day of September, 1903, witnesseth: That the said Doolittle has this day sold and transferred to said Murray & Co. his certain drug store, located in Dr. J. F. Hasty’s building, on the north side of the railroad track on Maple avenue, in Murray, Iowa. The said stock consists of drugs, chemicals, notions, paints, oils, wall paper, patent medicines, cigars, tobáceo, and all furniture and fixtures in said building, including soda fountain, show cases, stove, prescription case, and includes all the fixtures not owned by the landlord, J. F. Hasty; and this is to be an absolute sale and transfer, and said Doolittle warrants the title to all of said stock, fixtures, etc., to said Murray & Co., in consideration of which the said Murray & Co. hereby undertakes and agrees to assume and pay a certain bill or claim*539 of J. W. Edgerly & Co., of Ottumwa, Iowa, against the said Doolittle, for the sum of $591.37, also the claim of the Churchill Drug Co., of Burlington, Iowa, for the sum of $119.68; and they further agree that within a reasonable time, and as expeditiously as they can do so in a reasonable way, they will make sale of said entire stock for the. best terms and price they can obtain, and that after deducting the amount of the aforesaid assumed bills and all expenses they may have incurred in and about the said stock over and above its net proceeds they will pay as further consideration the said purchase price received by them from the sale of the said goods. That in said expense shall be included all bills made by them in further conducting said business, and said Doolittle hereby transfers his unexpired lease on the premises where his store is located to said Murray & Co., and said Murray & Co. hereby agrees to pay all rents to accrue on the unexpired term. Any rents paid are to be included in the bill of expenses as well as any insurance paid by said Murray & Co-. [Signed] H. M. Doolittle, J. O. Murray & Co.
Immediately upon the execution .of this instrument one ■Haslach was employed and authorized to go to the town of Murray, where the goods were, and to take charge and control of the Doolittle stock and business in the name and behalf of Murray & Co., and conduct the same until it could be closed out by sale or other satisfactory disposition of the matter. There was also some tall!: or understanding between plaintiff and Murray & Co., the terms and extent of which are the subject of dispute, looking to effort on part of plaintiff to find a purchaser or make a sale of the stock. Haslach went to Murray oh the same or following day, and Doolittle turned the stock over- to him. Haslach applied to local agents for insurance, representing that Murray & Co. were sole owners, and that Doolittle, had no interest in the property. On October 3, 1903, Edgerly wrote plaintiff, advising him of the address of certain parties who he said had an equity in farm land which they desired to exchange for the drug stock. On October 5, 1903, plaintiff, purporting
On December 15, 1903, Edgerly, writing to Doolittle in answer apparently to a letter not contained in the record, said: “ Did you see ■ the written opinion of Mr. Davenport as to the title, etc., of the land in question? The point we wished to mention in the letter to you was that we have a report which states that one of the parties with whom we are dealing at one time was indicted by a grand jury for forging deeds. As this transaction is in that same line, we thought it was very important that the title be investigated. Will you let us know whether you have seen Mr. Davenport’s written opinion? We will probably not be able to give this matter very close attention until after the first of the year, as we are very busy with closing up details of the year’s business. We trust you may make a sale. We suppose that between now and March 1st special efforts should be made, as about March 1st much land changes hands. If nothing is done within the next 30 or 60 days, we will see what we can do.” The suggestion in this letter about a sale evidently has reference to a sale of the land, and not of the goods, as the latter had long since passed to Magner and Logan. To this letter plaintiff responded on December 17 th that he had seen the abstract of title and Davenport’s certificate thereon, and advised Edgerly to list the land with agents in Ottumwa. He then adds: “ As the deal stands I have nothing to show an equity in the lands, and believe it no more than right that a note be given by you for say $800. That would be placing the land at the lowest figure any one would sell it; i. e., $37.50 per acre. Of course, I will do my part in attempting to make a sale; in fact, I will list it
It would seem that other letters between the parties immediately following the last above quoted are not in evidence. The next shown is from J. C. Murray & Co. to plaintiff, bearing date January 8, 1904, in which they say: “ We have yours addressed to E. E. Edgerly, and are looking after this matter. We have taken it up with our attorney. We think it may be necessary for us to view the land personally, or have one with whom we are acquainted inspect it, so we can have a satisfactory idea of its value from our own observation. We are of the opinion that Magner & Co. cannot hold both the stock and the land, though a rather nasty legal complication might come up if anything were attempted by them in that direction. At any rate, we are endeavoring to find out what are the facts in the matter, and will probably write again the first of next week.” On January 22d Edgerly, after notifying plaintiff to join him, went to Union county and made a personal examinátion of
On January 29, 1904, Edgerly wrote to the plaintiff, replying to a- letter which'is not in the record, and for the first time in -the correspondence distinctly repudiated for J. C. Murray & Co., any promise or obligation to put any money into the land, and insisted that, while nominally acting as 'their agent in the transaction, plaintiff was in fact acting for himself. He also charged plaintiff with misrepresenting the value of his stock and informed him that Edgerly & Co. had not been paid their claim, and would proceed to enforce collection, if payment was not made promptly. On the following day Edgerly addressed Magner, saying: “ When Mr. Work and I were at Murray with you about a week ago, there was some talk of possible exchange of farm and stock. If. you have any proposition on that line to make, we would suggest that it he made at once so there would be time to consider it, and, if accepted, to carry out any details connected with it.” Other letters passed between plaintiff and Edgerly on Eebruary 1st and 2nd, which are in effect disclaimers by both parties of any ultimate responsibility for the failure to complete the exchange of properties, and on Eebruary 8, 1904, J. C. Murray & Co. closed the correspondence by a letter saying: “We having decided that we could not accept the land on the terms required, inasmuch as we could not furnish the money to put up the bonus, have decided not to take the land, and therefore will
This action was begun at law August 4, 1904, making J. O. Murray & Co., J. T. Edgerly, J. O. Murray and J. W. Edgerly & Co. defendants to recover damages sustained by the plaintiff on account of the alleged failure of the defendants to perform the written contract first mentioned in the opinion. At an early stage in the proceedings the trial court ordered the plaintiff to implead and serve notice upon the parties claiming or appearing to claim an interest in the land or in the stock of goods exchanged for the land, and set down the issues for trial as in equity. The answer of the original defendants is to the effect that the contract sued upon, while an absolute sale in form, was, in fact, intended as a mortgage or trust agreement by which the legal title to the property was placed in J. O. Murray & Co., to secure the plaintiff’s debt owing to J. W. Edgerly & Co., and that no obligation was assumed by J. O. Murray & Co. except to apply whatever they might realize out of the stock, in the manner provided in the contract. They further say that, while nominally acting as their agent in the attempt to dispose of the stock, plaintiff was, in fact, acting for himself, and that he alone is responsible for the losses sustained in that transaction. Magner, Logan, and Dufur appear and in a cross-bill set up the contract for exchange of prop
Ei’om this decree the plaintiff has appealed.
It may be further conceded that the purpose for which a writing was delivered may generally be shown by parol; but this is subject to the restriction that the purpose thus shown must not be in contradiction of the express terms of such writing. Courtwright v. Strickler, 37 Iowa, 382; Dickson v. Harris, 60 Iowa, 727; Blair v. Buttolph, 72 Iowa, 31; De Goey v. Van Wyk, 97 Iowa, 492. These rules have been most frequently applied to conveyances of real estate, but have sometimes been invoked in the consideration of bills of sale of personal property. Voorhies v. Hennesy,
With these general rules in view, let us look now to the terms of the contract in suit. In apt words, it witnesses the sale of plaintiff’s stock of goods to Murray & Co., in consideration of which the latter “undertake and agree to assume and pay the bills and claims held against plaintiff by J. W. Edgerly & Co., $591.37, and the Churchill Drug Co., $119.68,” and further to proceed to a sale of said stock as soon as practicable, and to pay over to plaintiff the net proceeds thereof after deducting the amount of the bills assumed and all expenses incurred in closing out said stock. To allow proof that notwithstanding the express agreements in the writing, plaintiff did not in fact sell the goods, and Murray & Co. did not, in fact, assume any personal obligation to pay what they promised to pay, is to affirm a proposition of law for which we think there exists no authority in principle or precedent The books are not silent upon this question. Eor example, it has been held that, where a mortgage secures in express terms the payment of a given sum of money, parol evidence will not be admitted to show that the real purpose of the parties was to secure the performance of an oral agreement. Adair v. Adair, 5 Mich. 204 (71 Am. Dec. 779). Nor will such evidence be admitted to show that a mortgage given by an individual was in fact the mortgage of a partnership of which he was a member. Jones v. Phelps, 5 Mich. 218. One B. having acknowledged, in writing, the receipt of payment from G. for a private way across his land, it was incompetent for him to show by parol that the grant was understood to be personal only, and subject to revocation by the grantor.
So, if this were simply an absolute assignment of the policy to Gibson, there could be m> question under the law of this State that the plaintiff could be permitted to show by parol that it was intended as collateral security. But here was more than a simple assignment. . . . By its terms the precise terms upon which the policy was assigned are specified, and that is stated to be that Gibson was to credit Chrales TL Marsh with the sum of $353.72 at his bank, which sum was, in fact, an overdraft by Charles at the bank, and that credit was made. Gibson was also to pay a certain mortgage upon real estate which John B. Marsh had conveyed to him, . . . and he was to indorse $35.82 upon a note for $300 which he held against Charles H. . . . This instrument was more than an assignment. It contains what both parties agreed to. It shows that the assignment was made for the purposes mentioned and precisely what Gibson was to do in consideration thereof. He became bound to do precisely what was speci*550 fied for him to do, and he could have been sued by the assignors for damages if he had failed to perform. Hence the instrument is not a mere assignment or transfer of the policy. It is a contract in writing within the rule which prohibits parol evidence to explain, vary, or contradict such contracts. . . . It is believed that no case can be found where parol evidence has been received for the purpose of showing that such an instrument was given merely as collateral security, and not for the precise purpose mentioned in it. Without commenting upon the authorities, the following are ample to show that the evidence was not competent.
Citing 1 Greenl. Evidence section 275; McCrea v. Purmornt, 16 Wend. (N. Y.), 461 (30 Am. Dec. 103); Kellogg v. Richards, 14 Wend. (N. Y.), 117; Goodyear v. Ogden, 4 Hill. (N. Y.), 104; Graves v. Friend, 5 Sandf. (N. Y.), 568; Coon v. Knap, 8 N. Y. 402 (59 Am. Dec. 502); Cocks v. Barker, 49 N. Y. 107; Hinckley v. Railroad Co., 56 N. Y. 429; Van Bokkelen v. Taylor, 62 N. Y. 105; Shaw v. Ins. Co., 69 N. Y. 286; Wilson v. Deen, 74 N. Y. 531; Eighmie v. Taylor, 98 N. Y. 228. Still closer in point both in fact and in principle is the case of Thomas v. Scutt, 127 N. Y. 133 (27 N. E. 961). There the parties entered into a written contract by which Thomas sold and transferred to Scutt a certain raft of hemlock lumber for the agreed price of $728, the same to be applied in payment of a chattel mortgage held by Thomas on said lumber and other property. Defending against an action brought on this contract, Thomas sought to prove by parol that the real purpose and intention of the parties was that the lumber be turned out to him to secure the repayment of advances made by him to the plaintiff, and that he received the lumber under the express agreement and understanding that he should market the same and account to plaintiff for the proceeds after deducting all expenses and the amount of plaintiff’s debt — all of which defendant expressed his willingness to do. Dejecting parol evidence of these alleged facts, and applying to the case the rule affirmed in Marsh v. McNair, supra, the court says:
*551 The principle upon which parol evidence is held admissible to show that a simple assignment, though absolute in terms, was intended as security merely, is the supposed incompleteness of the instrument, and is not regarded as contradicting, the writing but as showing its purpose. Truscott v. King, 6 N. Y. 147; Horn v. Keteltas, 46 N. Y. 605. Where, however, instead of a mere transfer or assignment, there is a contract appearing on its face to be complete, with mutual obligations to be performed, you can no more add to or contradict its legal effect by parol stipulations preceding or accompanying its execution than you can alter it through the same means in other respects [citing Phil. Ev. (2 Cow. & Hill’s Notes) 698, and other authorities]. '. . . We regard this contract as complete upon its face. What element is wanting ? If such a writing Can be undermined by parol evidence, what written instrument is safe? How can a man, however prudent, protect himself against perjury, infirmity of memory, or death of wifi nesses? See, also, McEnery v. McEnery, 110 Iowa, 725.
The language above quoted is in' all respects applicable to the contract now in suit. . It is something more than a mere assignment or transfer of title to the stock of goods. It is a complete contract, stating specifically and in detail the mutual promises and undertakings of both vendor and vendee — describes the thing sold and transferred, states the names of the creditors whose claims the vendee agrees to pay, the specific sum to be paid to each, the manner in which the remainder of the purchase price is to be adjusted, and then, as if to foreclose any possible doubt as to the nature of the transaction, the parties insert in the writing these words: “ And this is to be an absolute sale and transfer, and said Doolittle warrants the title to all said stock, fixtures, etc., to said Murray & Co.” To quote again from the case last cited: “ If such a writing can be undermined by parol evidence, what written instrument is safe ? ”
It is not difficult to justify the rule-that a writing which simply transfers the legal title to property may be shown by parol to have been given as a mortgage, because
Before leaving this topic, we may say that the conclusion that a sale, and not a mortgage was intended by the parties, is strengthened by the testimony of the defendants that mortgage security was at first discussed between them, but was abandoned because they understood that, unless the transfer was absolute, there would be difficulty in getting valid insurance. Hence the contract of sale and the definite expression therein of its absolute character. Had insurance been procured by Murray & Co. and loss incurred, can there be any doubt that said vendees would have insisted upon being considered the owners of the property? That an explicit declaration embodied in the writing declaring the sale to be absolute, and not a mortgage, will estop a party to impeach such declaration by parol proof. See Burnside v. Terry, 45 Ga. 621. We are bound to assume in making this declaration the parties were acting in good faith and with no intent to defraud. See, also, as bearing on the general question, Grabfelder v. Vosburgh, 85 N. Y. Supp. 633 (90 App. Div. 307); Bass D. G. Co. v. Mfg. Co., 119 Ga. 124 (45 S. E. 980); Richardson v. McConaughey, 55 W. Va. 546 (47 S. E. 287); Forsyth v. Castlen, 112 Ga. 199 (37 S. E. 485, 81 Am. St. Rep. 28).
It follows from the foregoing that the finding of the trial court that the contract in suit may be treated as a mortgage only, and that appellees’ promise to pay may be considered. as a mere undertaking to account for moneys acquired by a sale of the property cannot be upheld. Eor the same reasons which exclude parol proof to convert the
But such recovery is not to be measured, as his counsel argue, by the value of the stock of goods sold by him. Murray & Co.’s undertaking was not to pay the market value of the goods, but to pay the claims of the two creditors named, and as much more, if anything, as might be realized on a sale of the goods after deducting the sum
The testimony in the record is not such as to enable us to pass upon these questions of fact, and the cause must be remanded for their determination. We may properly say at this point that one of the contentions of the appellant is that the court below erred in transferring the cause from law to equity for trial. Assuming that the order was properly made, the conclusions we have announced serve to eliminate the issues of an equitable nature, and in our judgment the issues remanded for further hearing are triable by ordinary proceedings if either party shall demand it.
The decree of the district court is reversed, and cause remanded for further proceedings not inconsistent with this opinion.— Reversed.