166 Iowa 705 | Iowa | 1914
Plaintiff alleges that, in the spring of the year, 1911, he was the owner of a stock of merchandise of the value of $7,500 at the town of Cummings, Iowa, and at the same time the defendants Barnes were in business as real estate agents and brokers at Des Moines, Iowa, and had associated with them in some capacity the defendant Northrup. He further avers that the defendants Barnes and Northrup represented to him that they were agents of the defendant Clark, who was the owner of eighty acres of land in Jasper county, which he desired to exchange for merchandise, and thereby induced him to go with Clyde Barnes and Northrup to visit and inspect this land which they said belonged to Clark. The land so shown to him was of good quality and value, and,
Separately answering, the defendant Clark admits that he owned a tract of land in Jasper county, which he desired to sell or exchange for other property, admits that a contract was entered into in his name by the defendant Northup with the plaintiff for the exchange of said land for plaintiff’s stock of goods, but denies that Northrup had any authority to sign said Clark’s name to such writing. He admits that Barnes and Northrup showed plaintiff certain land as being the tract owned by him, and says they did it honestly, believing they were stating the truth. Thereafter, he says, being informed that the trade could be made he executed a deed of the land to plaintiff, and delivered it to Barnes Bros, as the agents of the latter. Later he learned that a mistake had been made in pointing out the land to plaintiff, and thereupon he made a bill of sale of the goods back to.the plaintiff and placed it in the hands of Barnes Bros., authorizing or directing them to give plaintiff the option to confirm the exchange as already made or agreed upon,- taking the land actually owned by him, or, if he so elected, the exchange might be abandoned and the bill of sale to the goods delivered to the-plaintiff. Said defendant further alleges that plaintiff was then indebted beyond his ability to pay, and that, with one Glynn and one Casady
The one question on this appeal is whether the plaintiff made a case which he was entitled to have submitted to the jury. Where a verdict has been directed below, it is elementary
This memorandum of agreement made and entered into this 17th day of April, 1911, by and between E. W. Clark of Sioux Rapids, Iowa, party of the first part, and J. ~W. McCann, of Cummings, Iowa, party of the second part, witnesseth: The party of the first part has this day sold to second' party the following described real estate, to wit: The north half (N. y2) of the northwest quarter (N. W. %) of section twenty-four (Sec. 24), township seventy-nine (Tp. 79), range twenty (20) Jasper county, Iowa, subject to a mortgage of fifteen hundred ($1,500.00) dollars, with interest from this date at six per*710 cent. (6%) for and in consideration of the above and foregoing described land, the second party has this day sold and conveyed, this day by bill of sale free and clear of all liens and incumbrances, a certain stock of general merchandise and fixtures, as described in said bill of salé, located in the town pf Cummings, Warren county, Iowa, in what is known as the Jackson Smith building, in said town. First party agrees to convey the Jasper county land to second party, by good and sufficient warranty deed, and to furnish second party with a good and merchantable abstract of said land, subject only to the fifteen hundred ($1,500) dollars mortgage herein named. The lease now on said farm for the current year to be assigned to the second party for this contract, and the same to be done as a part of the consideration herein. Said deed to said land to be delivered on or before April 25th, 1911. Said abstract to be delivered for examination within the next thirty days from said date. Clyde Barnes hereby agrees to the delivery of said deed and abstract as per the terms o-f this contract. This contract is made binding upon their respective heirs and assigns of each of the parties hereto.
E. W. Clark,
By H. IT. Northrup.
J. W. MoCann.
Witness to contract: J. N, Cassady.
To deliver deed and abstract: Clyde Barnes.
The occasion for the signature of Barnes, to the contract was as follows: When Northrup signed the name of Clark to the contract, Mr. Casady, who had agreed to release the chattel mortgage, raised the point that Northrup was a stranger to him, and that question might thereafter be raised whether such signature was made with the proper authority, but said that he knew Barnes, and knew him to be responsible, and, if the latter would guarantee the delivery of deed and abstract of title, they would proceed. To this Barnes consented and affixed his name to the paper. This being done, plaintiff made and executed a bill of sale of the stock of goods to Clark, and the same was delivered to Barnes. At the same time Casady surrendered the chattel mortgage securing the debt to the banks and gave it to Barnes. Then Barnes and
Upon such record we are unhesitatingly of the opinion that the trial court erred in directing a verdict for the defendants. It is probable that the petition fails to allege a ■cause of action based upon fraud or false representations, but that is immaterial if it states facts upon which plaintiff is entitled to a judgment of any kind against any of the defendants. That it does state grounds for the recovery of damages against some or all of the defendants, and that there is evidence tending to sustain the same, is not open to reasonable doubt. Let us assume, for the purposes of this discussion, that there was no intention to deceive the plaintiff, and that Barnes and Northrup honestly believed the more valuable tract of land was the one owned by Clark, yet it remains true that this better land, and not the inferior tract, is what they promised and undertook to convey to plaintiff in exchange for his goods, and it was in consideration of this land, and no other, that they took and received the goods from him and still retain them. He has parted with his goods; he has not received, and defendants cannot give him, the promised consideration; and it would be an unwarranted impeachment of the efficiency and justice of the law to say he may not recover compensation in damages.
The record, as we have already said, does tend to show that Northrup did have authority to negotiate the deal, and, if so, his principal cannot accept and retain the benefit of
If he was -merely the agent of Clark, and acted in good faith toward the plaintiff, no recovery can be had against
It is not necessary that plaintiff should make a case for a joint recovery against all the defendants in order to be allowed to go to the jury. It is enough, to prevent his being
The foregoing sufficiently indicates our reasons for holding that plaintiff was entitled to go to the jury upon the case made by his own testimony.
It must be understood that, in thus disposing of the case, we do not attempt to pass upon the merits of the claim in suit or hold that the truth of any of the matters alleged in the petition has been established as a matter of law. Our conclusion goes only to the proposition that the allegations and evidence on part of the plaintiff were such as to entitle him to a submission of the issues to the finding of the jury. So holding, it follows that the judgment and order appealed from must be vacated, and the cause remanded to the district court for a new trial.
The appellee Clark has moved to dismiss the appeal on the ground that plaintiff has dismissed as to the defendant Northrup, and for that reason cannot further prosecute the case