179 Iowa 1355 | Iowa | 1917
1. The theory upon which plaintiff presented his case is substantially this: That defendant sold plaintiff a span of mules under a warranty, and that there was a breach of. the contract justifying a rescission of the sale,, and that there not only was ground for rescission, but that there was in fact a rescission, by which the plaintiffs and the defendants agreed that the mules should be returned to the defendants, and that the $125 note given by plaintiffs to the defendants for the mules should be returned to plaintiffs; that the mules were returned, but that the defendants refused to turn back the note; that plaintiffs were the owners and entitled to the possession of said note, and commenced a replevin suit to recover the possession thereof, but that defendants entered into a conspiracy to prevent plaintiffs from recovering their note, and that, acting together, defendant William aiding and abetting his codefendant, they fraudulently converted said note and negotiated it to an innocent holder; and that F. L. Crosby fraudulently conveyed other property of his to appellant and attempted to conceal it from attachment, and fraudulently aided and; assisted William Crosby to defeat the just claim of plaintiffs by concealing said property and escaping from the jurisdiction of the courts of Iowa; that thereafter, plaintiffs were compelled to pay the note to the transferee. They asked to recover the damages sustained, by them by reason of the wrongful acts of the defendants.
There appears to be but little dispute as to the facts down to the time when the mules were returned to defend
Plaintiffs, father and son, live at Prairieburg, in the northeastern part of Linn County. Defendant F. L. Crosby, is a resident of Mexico, Missouri, and appellant, William, is his nephew, and a resident of Prairieburg. About March 1, 1915, F. L. Crosby shipped a carload of mules, 18 or 20 head, from his home in Mexico, Missouri, to William Crosby at Prairieburg for sale. This was prearranged between the Crosbys, and William rented a livery barn, where he took the mules upon their arrival. The evidence tends to show that F. L. Crosby did not arrive in Prairieburg until a day or two before the sale of the span of mules in question to plaintiffs. This sale of the mules was on March 30th, and plaintiffs gave their note for $425, due in six months, with 8 per cent interest. The testimony shows that the note was good. Between the time of the arrival of the mules, early in March, and the arrival of F. L. Crosby, the latter part of March, William was selling and trading the mules about Prairieburg. From appearances to third persons, William might have been handling the mules
After plaintiff had obtained his writ of replevin, and found that F. L. had gone, he learned, the next day, April-2d, that the note had been sold; and on that date, plaintiff, not knowing of the transfer of the property to William, again went to Marion and commenced this action against F. L. Crosby and secured a writ of attachment, apd again went to Prairieburg. According to the testimony of some-of the witnesses, the plaintiff was then informed by appellant, William Crosby, that he had bought all of his uncle’s property, and admitted the sale of the note. Plaintiff testifies that, at the time the sheriff levied the writ of attachment, he talked with appellant and asked him what their hurry was to get rid of the note, and that appellant, William Crosby, then said, “We knew that you would stop payment on that note;” and witness then asked appellant, “What was the old man’s hurry in leaving for Missouri at midnight?” and he said, “We knew if you got hitched on here, he would have to stand trial here, and if he got to Missouri, you would have to commence suit in Missouri, and we could put the case off, and we could wear you out and beat you that way.” He says other witnesses were present and heard this conversation, and that the sheriff then asked; “Do you think that is the right way to do?” and that Crosby answered that he thought it was. Appellant testifies that the attorney advised F. L. Crosby, if he could not make a settlement with plaintiffs, to go home where his
These are some of the circumstances which we cull from the record bearing upon the question as to whether appellant had knowledge of the purposes of F. L. Crosby, and whether he aided and abetted him in the conversion of the note and disposition of the property to defraud plaintiffs. Appellant picks out some of the circumstances, and says that such are not enough to make appellant liable, or to take the case to the jury. But we think it is proper to take into consideration all the circumstances shown in the record as bearing upon the relations between the two Crosbvs, and to our' minds, the entire record makes it a question for the jury as to the liability of William Crosby, and the jury was justified in finding that the Crosbys were acting together, and that appellant participated in the conversion of the note.
But little authority is cited by appellant on this proposition, but appellee cites, on the question of conspiracy, that any act done in furtherance of the common design becomes the act of all, and each conspirator is responsible for such act, and also that the act of all in engaging in, advising, encouraging, aiding or abetting the commission of a tort makes each one jointly and severally liable therefor. Some of the cases cited on this proposition are: 8 Cyc. 657; 1 Cooley on Torts (3d Ed.) 211, 223, 244; Moore v. Fryman, 154 Iowa 534, at 537. Appellee also cites 38 Cyc. 2054, and other cases, to the proposition that one who joins in and knowingly assists in the conversion of chattels is liable for the tort, even though he receives no direct benefit therefrom, and even though he acted as agent for another. See also Starr v. Bankers’ Union, (Neb.) 116 N. W. 61; Wing v. Milliken,
Some of these matters have been referred to in a prior division of the opinion; that is, that, after the agreed rescission and return of the mules, the note would not belong to the defendants or either of them, and plaintiffs were entitled to the possession thereof. As to the other part, that there is no testimony showing ■ that appellant knew of his uncle’s intentions, and that he did not aid or abet in the sale of the note or team, we have already referred to thi3 at considerable length, and held that there was' evidence, and sufficient evidence, to justify the jury in so finding. This really is the more important point argued by appellant in his objections to this instruction. It is also said by appellant that a civil liability on the part of William cannot be predicated upon aiding and abetting, and that the
Appellees contend that the exceptions taken by appel-. lant at the trial to this instruction are not sufficient to raise the questions, or at least some of them, now argued. The exceptions taken at the trial are, substantially, that' the note, under the circumstances, could not be the subject of conversion by either of the defendants; that the sale by F. L. Crosby of the remaining animals to William and Fish was not a conversion of any property upon which plaintiffs then had any lien or right. We think that some of the questions now argued in regard to this instruction are not covered by the exceptions taken at the trial. Some of the matters argued have been discussed to some extent in the general discussion of the evidence set out in the former paragraph of the opinion, and necessarily so. We may add that it is our opinion that Instruction No. 4, as applied to the evidence in this case, is in harmony with the cases in regard to conversion, hereinbefore referred to. Instruction No. 4 does not make appellant liable because of the sale of the remaining property to him. But the question was as to the conversion by appellant and F. L. Crosby, acting together, of the note, and the court permitted the other circumstances to be considered as bearing upon that question, and we think properly so.
Appellant offered instructions, but none of those offered defined “aiding and abetting,” and we think that, in the absence of such request, the jury could not be misled by the use of. the words themselves.
As to the first instruction asked by appellant, that appellant could not be held liable because of any breach of warranty in the contract for the sale of mules, etc., we do not understand the instructions to make appellant liable for that. The second and third were covered, we think, by those given by the court. The fourth instruction asked
Some other questions have been argued, but we think they are not controlling, and there is a question as to whether they-were raised in the trial court.
It is our conclusion that there was no prejudicial error, and the judgment is, therefore, — Affirmed.