193 Iowa 965 | Iowa | 1921
At the conclusion of all the testimony, the court directed the jury to return a verdict in favor of the defendant. A verdict was returned accordingly, and judgment entered against the. plaintiff for costs.
The petition of plaintiff in the original action against the Star Land Company was later amended by plaintiff in several material respects.' The amended petition contained three counts, whereas the original petition contained but one. In Count 1, plaintiff alleged that the Star Land Company was indebted to him for commissions earned under a verbal contract therewith, entered into on or about September 15, 1911, in the sum of $837. In Count 2, he sought to recover for commissions earned under the written contract of agency entered into February 1, 1912, and in Count 3, for expenses incurred on behalf of the Star Land Company,-in the sum of $125.50. It was further alleged in the amendment to the petition that the defendant was entitled to credits upon the several items referred to therein in the sum of $3,053.70, and judgment was asked for $3,018.80, instead of $2,583.05, the amount demanded in the original petition. Two subsequent amendments, amplifying the allegations of the amendment here referred to, were filed. They did not, however, change the causes of action set up in the amendment. The defenses pleaded by the American Surety Company in the ease at bar are: First, that the judgment entered in favor of plaintiff and against the Star Laud Company, December 9, 1916, is void because entered in vacation; second, that W. J. McDonald, garnishee, was not, at tbe time notice of garnishment was served upon him, the debtor- of" tbe Star Land Company, but that the money in his possession, which plaintiff sought to tie np, was held by him as attorney for Frank G. and Charles
The errors assigned by counsel for appellant, and relied upon for reversal, are, in substance: That the court erred in overruling his motion to strike from the answer the defendant’s
In view of the state of the record before us, which includes all documentary evidence admitted over the objection of counsel for plaintiff, and also that excluded by the court upon the objection of counsel for defendant, we are enabled to review the ruling of the court upon defendant’s motion for a directed verdict, the same as though all of the testimony offered by plaintiff had been received in evidence.
The-one vital and controlling question upon this appeal, as we view it, is: Was the fund garnished in the hands of W. J. McDonald, attorney for the Myers brothers, the property of the Star Land Company? The material facts bearing upon this question, which are not disputed in the evidence, are, in substance, as follows: On September 29, 1911, Frank G-. and Charles C. Myers, brothers, entered into a written contract with the Star Land Company for the purchase of a tract of land situated in Hidalgo County, Texas. The agreed purchase price'of .the land was $7,000, to be paid, $500 cash upon the execution of the contract, and the remainder in three payments, as follows: $3,000 March 1, 1912; $2,000 March 1, 1913; $1,500 March 1,1914. Each of the deferred payments was evidenced by a promissory note, pajmble to the Star Land Company. Later, a controversy arose betiveen the Star Land Company and Myers Brothers, -which resulted in the' employment by the latter of W. J. McDonald to represent them in the adjustment thereof, and to make settlement of the purchase of the Texas land. Myers Brothers, for the purpose of carrying out its contract, turned $3,602.50 over to McDonald, to be remitted to the Star Land Company at Kansas City, Missouri,’as soon as a satisfactory settlement of the dispute between them was reached. Be
It appears without dispute in the evidence that the Star Land Company did not hold the vendor’s liens, but that they wore held by a bank in New Orleans as collateral security to a loan made by one John J. Conway. These notes were, however, upon request, forwarded by the New Orleans bank, together with appropriate releases executed by Conway, to the Kansas City bank, which forwarded the same to McDonald, to be turned over 1o Myers Brothers. The evidence is not quite so clear as to who was entitled to the balance due on the purchase price, which amounted approximately to $1,017.63. So far, however, as the record discloses any facts on this point, it is to the effect that the notes were not held by the Star Land Company. This is shown in part by a letter from one of its officers, in which it is stated that the notes, which had been turned over to some other person by the Land Company, had been located, and would be forwarded in a few days for payment. The notes, when received by McDonald, in fact bore the cancellation stamp of the Star Land Company.
Section .3911 of the Code is as follows: .
“In an action brought upon such bond, it si rail be a sufficient defense that the property for the delivery of which the bond was given did not, at the time of the levy, belong to the defendant against whom the attachment was issued, or was exempt from seizure under such attachment.”
This section permits the surety, in an action against i't upon a delivery bond, to,show as a complete defense that the property attached did not, at the time of the levy, belong to the defendant against whom the attachment was issued. If McDonald caused the venclor’s lien notes to be paid, and obtained a release of the liens, payment must be made either to the holder or to the New Orleans bank, and not to the Star Land Company. If, on the other hand, the Texas land was conveyed to Myers Brothers, subject to the vendor’s lion notes, $2,432 of the money held by McDonald belonged absolutely to his clients. The only possible question as to the ownership of any part of the money in the hands of the garnishee is as to that represented by the difference between the amount of the vendor’s lien notes and the balance due on the purchase price of the land, which was approximately $1,000. The record as to 'the ownership of the two notes for $2,000 and $1,500 respectively is not very clear; hut as the evidence upon this point is undisputed, a finding by the jury that it was the property of the Star Land Company could not stand. In what we have said thus far, we have given no consideration to the interest of Myers Brothers in the fund held by the garnishee for the protection of their rights under the adjustment of the. controversy between them and the Star Land Company,
One W. F. Zumbrunn, an attorney at Kansas City, Missouri, appeared with Frank F. Messer, an attorney at Iowa City, for the Star Land Company in the defense of the original action brought against it by Roche for commissions. After the judgment obtained upon the first trial was reversed by this court, and the case sent’back for retrial, Messer refused to proceed with the second trial until a satisfactory arrangement ivas made by the Star Land Company for the payment of his fees. On November 14th, he advised Zumbrunn that the case was assigned for trial November 27th, and that it would be reached promptly on that date, and suggested that he make arrangement for the trial. No reply appears to have been received to this letter from Zumbrunn, but it is shown that Ethel King, his stenographer, replied to a second similar letter from Messer, bearing date November 20th, informing him that Mr. Zumbrunn was in Louisiana, and was expected back the following Thursday, which would be after the date set for trial. Messer obtained a short delay of the trial, and on November 29th forwarded two telegrams to the Southern Surety Company at St. Louis, stating, in effect, that, unless his fees were guaranteed by some responsible party, he would withdraw his appearance, and let the plaintiff take judgment. On December 1st, the Southern Surety Company wired Messer, guaranteeing payment of his fee for the trial of the case; whereupon the trial began on December 4th,
In our opinion, the evidence offered by the plaintiff, as well as the record as a whole, fails to establish his plea of estoppel. • He was not, therefore, prejudiced by any of the rulings complained of. This conclusion having been reached, none of the remaining questions discussed by counsel require consideration.