130 Iowa 626 | Iowa | 1905
We turn now to the record to discover if intervener made such an election, inconsistent with its right to rescind and recover the goods, or did such things, with knowledge of the fraud which had been perpetrated upon it, as to evince an intention to waive its right of rescission and to ratify the contract, or, as the books say, “ did play fast and loose in the matter.” The receiver was appointed on the 17th day of March, 1902, and on the 24th of that month one Walsh, representing the intervener, appeared in Des Moines, where the insolvent corporation had been doing business, and immediately proceeded to advise himself regarding the affairs of the corporation. TIis employers had already suggested to him the remedy of replevin. A motion was made to discharge the receiver, and a hearing was had, which ‘involved an investigation of all the business affairs of the concern. Walsh was present at this hearing, and, claiming to represent one of the largest creditors of the corporation, undertook to advise the trial court as to the best course to pursue to wind up the corporate affairs. After learning all of the facts relating to the corporation he undertook to adjust the matter of his employer’s claim for the benefit or supposed benefit of his principal, and entered into many negotiations for the sale of the goods then in the receiver’s hands. Both he and his employer knew they had the right to replevin such goods sold by them as remained in the stock, for their correspondence is conclusive on this point. Instead of immedi
As it failed to get the- goods at the receiver’s sale, and as all of its plans and arrangements with other persons to acquire the stock and thus protect it failed, it commenced this action, which is in the nature of a replevin proceeding, claiming, not as a creditor, but as the holder of the legal title to the goods shipped by it to the corporation. It undoubtedly entertained the motion of taking Such goods as it could identify, should its other plans fail, from the very beginning; but it concluded to try some other remedy first, holding the replevin proceedings in reserve in the event it failed to secure its claim or a considerable proportion thereof
The degree of the district court seems to be correct, and it is affirmed.