120 Iowa 514 | Iowa | 1903
Plaintiff claims that she leased certain rooms in a building in the city of Marshalltown, for the term of one year, from William Flower, the husband and .agent of the defendant, at the agreed rental of $30 per month; that she paid to said agent the sum of $120,-upon the rent; that defendant refused to allow plaintiff to enter the premises, but canceled the lease, and refused, and still refuses, to return the $120, although demand has been made therefor; and she asked judgment for damages in the sum of $120, with interest. In an amendment to her petition, filed during the trial, she averred that defendant refused to ratify the contract made by her agent, but disapproved the same, and refused to allow plaintiff to take possession; that defendant’s agent thereupon promised to return the money received by him; that she (plaintiff) thereupon rescinded the contract, and accepted the promise to return the money, but that neither defendant nor her agent made return of the funds so received, although often demanded; and that, as defendant has received the $120, which she refuses to return, plaintiff is entitled to judgment for that amount. Defendant pleaded in answer that, while William Flower was her agent,- he had no authority to lease the property for illegal purposes; that in fact the property was rented to plaintiff for the purpose of maintaining therein a house of ill fame. She also pleaded a general denial of the allegations of the original petition. To the amended petition defendant pleaded .a general denial, and also specifically denied that there -was any agreement to abandon the lease and refund the money; pleaded there was no consideration for the alleged
There is no dispute over the fact that William Flower received $120 for rent of the rooms, that he received it ostensibly as the agent for the' defendant, and that this money has not been refunded to any one. There was evidence tending to show that this money was received from plaintiff through one Hanson for the use of the rooms, and there is no doubt that plaintiff was renting them for the purposes of prostitution. There was also- ■ evidence to the effect that the rooms were rented directly to Hanson, and that Hanson paid the rental therefor. If the rooms were rented to Hanson, then, of course, plaintiff cannot recover. If they were rented to plaintiff, it was for an illegal purpose,, and she cannot recover, save on one theory, to which we shall hereinafter refer. It • also appears from the evidence that, if the rooms were rented to plaintiff, it was against the express protest of the defendant, and that Hanson’s name was used for the purpose of concealing the true facts from her. There is no question that both plaintiff and William Flower understood that defendant would not consent to the leasing of the rooms to the plaintiff, and that the matter was kept conceale 1 from defendant until after the money was paid and the lease executed. When the defendant learned of the matter, she wrote to plaintiff, expressly .repudiating the lease, and plaintiff-made no further effort-to get possession. Their was - also some evidence that William Flower promised to return the money received by him. Defendant’s, evidence also tended to show that the property .was not leased to plaintiff,-but to Hanson, and that Hanson was never denied-the use-and possession, of the rooms. There is . also, some evidence which tended to show that plaintiff surrendered her lease and rescinded the-transaction.
The motion was based on misconduct of certain jurors, incompetency of some of the jurors to sit in the case, newly discovered evidence, error in rulings on evidence, in the instructions given and refused, and insufficiency of the evidence to support the verdict. - There is no showing of misconduct of jurors, or of their incompetency to serve, and there is no affidavit from the parties who it is claimed
Much of the evidence was incompetent, because secondary, but we set it out to demonstrate the character of plaintiff’s claim. Without setting forth more of the
The seventh instruction which we have quoted refers to, the promise to repay, and was more favorable to the plaintiff than she was entitled to., Accepting this as the
From the facts above recited it is clear that there is no presumption on which plaintiff may rely. If plaintiff and
While the matter of sustaining a motion for a new trial rests largely in the discretion of the trial court yet this discretion is a legal one, and, where improperly exer-5' 1 ' cised, will be reviewed, and the ruling reversed by this court. Where justice has been •done, and the case properly decided on the merits, a new trial should not be granted. The plaintiff, on her own showing, was not entitled to recover from the defendant. She may have been entitled toa judgment against William Flower, and the only reason she did not pursue her remedy against him seems to be that he is insolvent. That is her misfortune, and one of the penalties she must pay for entering into this kind of a transaction. The verdict was