120 Iowa 52 | Iowa | 1903
At the time this action was commenced the lumber yard was still being operated by defendant McGavic. At the time of the trial in the court below, however, the property had all been disposed of, and the action was tried without objection as for final .accounting and settlement, and a decree entered accordingly.
Many grounds of complaint are stated in the petition, but those remaining to be considered are these: (1) That McGavic has not accounted for all the property in fact received by him. (2) That the business was negligently,
The answer of the defendant McGavic is a general denial, and, in connection therewith, a specific denial of the allegations of the petition upon which are based the three grounds of complaint first above stated. The defendant Goddard, in'his answer, adopts and reaffirms the allegations of the answer of McGavic.
The several matters of complaint may be considered in the order in which they are presented.
From the invoice made at the time the receiver turned the property over to McGavic it appears that there were 3,706,774 feet of lumber of all kinds, 967,500 shingles, and
There is considerable other evidence in the record tending to prove that the invoice as made by the receiver was not correct. It will be sufficient for our purpose to refer to the testimony of one of the witnesses. He says: “In Campbell’s [the receiver’s] inventory, pile number 164 is inventoried at 31,872 feet, number 197 at 40,820 feet, and number 198 at 30,000 feet. I do not think we got over 10,000 feet of merchantable lumber out of the three piles. The lumber was badly damaged, warped, and short and broken pieces. ” It will also be observed.that, while the quantity of lumber reported sold by McGavic was less than that stated in the invoice, the. amount of shingles and lath sold exceeded by considerable the invoice statement. It will also be observed that the total amount realized was nearly the value of the property as fixed by the receiver’s invoice. In view of the evidence before us, we think there is no reasonable basis for the complaint as to the amount of lumber reiDorted sold by McGavic, and that the court below rightly so held.
Passing to the matter next complained of, we find the facts to be that in respect of some orders received by him McGavic did not have all the grades or kinds of lumber
In respect of the fourth ground of contention, the court below found that lumber, etc., belonging exclusively to apppellant was included in that sold by McGavic, and the value of such lumber is fixed by the decree at $517.25. That lumber belonging to appellant in his own right was taken and sold in some amount, is conceded in the evidence, and we think the value thereof as found is fully as great as the evidence in the case warrants. In view of the fact that defendants do not appeal, we may accept such amount as being correct.
By its decree the court below ordered payment of said sum of $517.25, less one-half the costs of the case, to plaintiff. The balance then remaining in the hands of McGavic, after paying all costs and expenses, is ordered paid to defendant Goddard, it appearing that such amount will be insufficient to satisfy the amount due him under the contract. The decree meets with our approval, and it is affibmkd.