Johnson v. Grimminger

83 Iowa 10 | Iowa | 1891

Beck, C. J.

I. The petition alleges the recovery of the judgment, and the occupancy of the real estate by the saloon keeper when the liquors were sold, and the knowledge, on the part of the defendant, of the sale of intoxicating liquors on the premises contrary to law. The answer denies the allegations of the petition, and alleges that the defendant sold the real estate after the judgment sought to be enforced in this case was rendered. The defendant presents a cross-claim, based upon the allegations that the suit is brought with malice, and without probable cause.

II. The action is triable in this court de novo. There is no question as to the facts of the recovery of a judgment against Clary, and that he occupied the real estate sought to be subjected to the judgment when the liquors were sold to the minor. The point of dispute is the knowledge of the defendant herein of the use of the property for the illegal sale of the intoxicating liquors.

III. In our opinion the evidence is ample to establish the defendant’s knowledge so as to charge his property with the judgment recovered 'by the plaintiff. The saloon was open and notorious, and so disorderly as to attract ruffians. An affray resulting in the stabbing of one of the rowdies engaged in it was noticed in two daily papers, and the particulars stated, and the name of the owner of the saloon, and its number was given. The defendant lived in the city, and, we infer, not far from the saloon. Her husband collected rent for her, and looked after the property. He without doubt knew all about the character of the saloon, and that intoxicating liquors were unlawfully sold in it. It is true lie testifies lie was not Ms wife’s agent. He declares in Ms evidence, “I wasn’t her (plaintiff) agent. I was her husband, and I go and do anything for her.” He signed his name to a receipt for rent, and looked after the property. The defendant never denied her husband’s authority as agent, and does not deny it in her evidence. His denial of his agency is rather of the legal conclusion than of the fact. He admits the •service rendered for his wife in connection with the property, and declares that they were rendered not as an agent, but as a husband. He may possibly be ignorant of the fact that a husband may be a wife’s agent, and,' when he acts as such with her consent, she will be liable therefor, and chargeable with notice which he had'of matters pertaining to the subject of his agency. There is no evidence supporting the defendant’s cross-demand. In our opinion, the court below ought to have granted the relief prayed for by the plaintiff.

The decree dismissing the plaintiff’s petition is reversed, and the cause is remanded for a decree in accord with this opinion, or at the plaintiff’s option such a decree may be entered here. Revebsed.