192 Iowa 1213 | Iowa | 1922
The pleadings in the case are voluminous, and we shall not attempt their extended statement. So much of
The defendant admits the making of the contract, the litigation resulting therefrom, its unfavorable termination, and his retention of the possession for the period of two years after the date prescribed therefor in the contract. He also admits the giving of the promissory note, and that it is unpaid. Among other defenses, the defendant alleged in his answer that, within a few days after the execution of the contract in March, 1917, and while defendant was still in rightful possession of the land, plaintiff resold the property to Peter Lamp, who, in turn, has since sold and transferred the same to O. M. Patrick; and that, by reason thereof, plaintiff’s damages recoverable from the defendant on account of the retention of possession by the latter are not to be measured by loss of rents and profits during that time, but by plaintiff’s liability, if any, to his grantees, Lamp
Thereafter, and apparently to avoid the defense so pleaded, plaintiff amended his petition, alleging that, after obtaining the contract with defendant, he, plaintiff, resold the land to Lamp, agreeing to deliver possession March 1, 1918; but that, by reason of defendant’s refusal to surrender the premises, plaintiff was unable to comply with his contract, and thereby became liable to Lamp or to Lamp and Patrick for damages; and that, to release himself from such obligation, he was compelled to pay said purchasers the sum of $2,500. He further alleges that, in making said settlement, it was orally agreed with Lamp that “plaintiff should have all the right of said Lamp in and to any claim he might have had or did have against the said defendant or any other person by reason of his failure to secure possession of said premises.”
The pleadings set up other claims and counterclaims, for the particular statement of which we shall not extend this opinion. They relate to the item of extra interest, already mentioned, and to certain credits or counterclaims asserted by defendant for taxes paid, for money expended for a few minor improvements, for interest paid, and for damages for wrongful attachment. Except as hereinafter noted, we discover nothing in the findings of the trial court in these respects to warrant our interference with its conclusions thereon. The one really debatable question presented by the record is upon the measure of plaintiff’s damages because of the defendant’s refusal to give up possession, as he had agreed. The appellant does not argue that he is under no legal liability to plaintiff for his failure to perform his contract. He concedes, in effect, that the result of the former litigation leaves him charged with such liability, but his contention here is: First, that a recovery of such damages cannot
Plaintiff answers the inquiry by saying that defendant was liable to Lamp (if not to plaintiff) for the full amount of the rents and profits of the land for two years; and that, in the settlement between plaintiff and Lamp, the latter assigned his claim therefor to the plaintiff; and that by said assignment he (plaintiff) acquired a right to recover damages on that basis. It is true that plaintiff, in amendment to his petition, alleged his resale of the land to Lamp; and that, by reason of defendant’s violation of his agreement to surrender the premises on March 1, 1918, Lamp was kept out of the possession; and that plaintiff settled Lamp’s claim for damages on that account by payment of $2,500; and that, in said settlement, ft was orally agreed that the plaintiff “should have” all the right of Lamp in or to any claim he might have or did have against defendant or any other person, by reason of his failure to secure possession of said premises. "While this allegation is not without some evidence in its support, the record, as a whole, we regard as insufficient to establish it. The settlement referred to was reduced to writing in the following form:
‘ ‘ Contract of Settlement.
“We, the undersigned, hereby acknowledge full, complete and satisfactory settlement with J. E. Scott by reason of any damages we may have suffered by failure on his part to deliver to us possession of premises purchased by the said J. E. Scott from Barney Habinck and by him sold to Peter Lamp and by Peter Lamp to O. M. Patrick. This, however, is not to be considered as a settlement of any matters of settlement between the said Peter Lamp and O. M. Patrick concerning their transactions in this matter with each other, but is merely a settlement between these said parties and J. E. Scott and his associates. Dated this 23d day of February, 1920, at Onawa, Iowa. [Sgd.] Peter Lamp, O. M. Patrick.”
“The question then arose as to whether or not there might .be some trouble on the p'art of Mr. Scott in bringing this action, provided that he settled with these parties. We did not think that it would be a legal objection, but I wanted to save any objection; and it was agreed that part of the consideration for the $2,500 was that Mr. Scott should have all of the rights of Mr. Patrick and Mr. Lamp, and was to have an assignment of all the rights of Mr. Lamp and Mr. Patrick against Habinck, so that, if any question arose, Mr. Scott would have been entitled to maintain this action in his own name. After this was agreed upon, I asked Mr. Underhill to have Mr. Lamp make this assignment. Mr. Lamp had gone out, and Mr. Underhill said that he would get the assignment in writing; and it was the agreement at that time between myself, Mr. Lamp, and Mr. Patrick, and Mr. Jacobson that Mr. Scott was to have all of the rights of action against Mr. Habinck that they would have, or did have.”
Mr. Underhill, who represented Mr. Lamp in that transaction, and who was called as a witness for plaintiff, testified:
“ Q. -Do you remember at that time what the agreement was between Mr. Lamp and myself, acting for Mr. Scott and Mr. Jacobson, as to Mr. Scott’s having all of the rights of the defendant Lamp and Patrick against Mr. Habinck-in relation to these matters? A. Well, I do not know that part exactly. I
It will be seen at once that the substance of the entire showing, giving it its most natural construction, is that the question then in the minds of the parties was whether, if plaintiff settled with Lamp and paid him the damages demanded, he (plaintiff) would thereby acquire a right to reimburse himself by a recovery from defendant; and the suggestion discussed was whether that right would be more effectually guarded by an assignment. The parties to the settlement were both represented by experienced lawyers, who, we must assume, knew that no assignment was necessary, tó sustain such right of action, and let the subject pass without that formality. Again, it is a pertinent inquiry what right of action was then vested in Lamp to recover the rents and profits from defendant which he could assign to plaintiff. Lamp’s purchase was direct from plaintiff. He had taken from plaintiff no assignment of the contract with the'defendant. There was no privity of contract between him and defendant. He looked to plaintiff alone to deliver him the possession, and to plaintiff alone he looked for damages occasioned by its nondelivery. That claim he settled, and gave plaintiff a full and effective discharge, and by his so doing the latter became at once vested with a right of action against defendant for the recovery of compensation, and nothing more.
It follows from what we have said that the findings of the trial court should be modified as follows:
1. The item numbered 2, for rental value of the land, is set aside, and in lieu thereof the defendant will be charged with damages for failure to deliver possession, in the amount of $2,500, with interest thereon at 6 per cent from February 23, 1920, the date of the payment of damages by plaintiff to Lamp.
2. The finding numbered 6 will be modified by striking therefrom the items of credit allowed the defendant for constructing a shed, $298, and for cement boxes, $173.60.
The foregoing modifications being made, and all other findings of the trial court in favor of plaintiff being sustained, all as of the date when the judgment was entered below, the record indicates a recovery for plaintiff, as we compute it, in the sum of $2,284.31. The judgment of the district court as thus modified will stand as of the date of its entry, January 21, 1921. Costs of this court will be apportioned, and taxed one half to each party. — Modified and affirmed.
SUPPLEMENTAL OPINION.
The parties, appellee and appellant, have both filed petitions for rehearing.
I. The appellant’s chief complaint with the opinion heretofore filed is that there is a manifest error in computation of the amount due to the appellee. This criticism is well founded. The trial court by its decree found plaintiff entitled to recover upon the following items:
(2) On promissory note 330.85
(3) Excess interest paid 1,225.00
$9,078.39
—making an aggregate of allowances to plaintiff of $9,078.39.
As against this, tbe trial court found defendant entitled to credits:
(1) Taxes paid and interest $ 583.23
(2) Interest paid on loans 2,932.50
(3) Shed erected on land 298.00
(4) Cement boxes 173.60
$3,987.33
—making an aggregate of $3,987.33, leaving a difference in favor of plaintiff of $5,091.06, for which judgment was rendered. By our decision, as indicated by the opinion heretofore filed, we. sustained all the findings and conclusions of the trial court except (1) the item for rents and profits, which we modified by reducing the same from $7,522.54 to $2,500, and (2) the items for construction of shed and cement boxes, amounting to $471.60, charged against plaintiff, which we disallowed altogether. Upon this basis, the amount which plaintiff was entitled to recover would be the aggregate of the trial court’s finding in his favor, $9,078.39, diminished by the credits allowed by the trial court (not including the items for shed and boxes), $3,515.73, and further diminished by the reduction made in the item for rents, $5,022.54. The remainder thus found is $540.12, and is the amomit for which judgment should be rendered against the defendant, instead of the sum stated in the former opinion.
III. Other points made by tbe parties in their petitions for rehearing are rearguments of matters fully presented by counsel and considered by tbe court on tbe original submission, and we discover nothing therein seeming to call for further discussion. Tbe opinion heretofore filed will be modified by reducing the amount for which judgment is to be rendered in favor of plaintiff to $540.12, with interest from the date of the decree below.
Both petitions for rehearing are overruled.