146 Iowa 64 | Iowa | 1910
Plaintiff brought action before a justice of the peace to recover the sum of $26.45 as commissions claimed to have been earned by him in acting as defendant’s agent for the sale of potatoes. His action was based upon a parol contract to pay him five cents per bushel for all potatoes sold or for which he found purchasers from whom he took orders. Defendant’s answer was a general denial. A trial was had to a jury, resulting in a verdict for plaintiff in the full amount claimed. Plaintiff thereupon remitted all in excess of $24.45, and judgment for the latter amount was rendered against the defendant. Thereupon defendant sued out a writ of error to the district court from the action of the justice in permitting the introduction of certain testimony. The justice made return to this writ and defendant filed a denial of the justice’s return, supported by affidavits. To this plaintiff filed counter affidavits. . Defendant then offered to produce witnesses in support of his denial. The trial court held that the justice’s return could not be impeached by affidavit or oral testimony, and that the return made by the justice showed no error. Appellants now contend that the trial court erred upon both propositions.
It seems from this that to support his claim for commissions plaintiff was permitted to introduce various orders taken by him for potatoes, which orders were signed by the purchasers. Defendants objected to the offer of these orders because they were within the statute of frauds, and for no other reason. Even were this an action against the purchasers, they could not rely upon the statute for they signed the orders, and they would be the parties sought to be charged. Nebraska Co. v. Conway, 127 Iowa, 237. But as the action, is not upon the orders, but against plaintiff’s principal for a commission, the orders are only collaterally involved, and the statute of frauds does not apply. McNaughton v. Smith, 136 Mich. 368 (99 N. W. 382); Michels v. West, 109 Ill. App., 418.
The merits of the case can not, of course, oe considered on this appeal.
No error appears and the order of the district court is affirmed.