Thome v. Colton

27 Iowa 425 | Iowa | 1869

Cole, J.

i. personal coniíSjon: joint owners. There are really but two questions presented on this transcript for our decision. First, as to the amount allowed plaintiff for the two-thirds interest in the mill. We have examjne(j ^]ie evidence, which is in a terribly confused condition, and read it with care. It is by no means veiy clear or satisfactory as to the real value of the mill building at the time it was destroyed; and there is no evidence whatever of the amount allowed Colton by the board of commissioners for it That the plaintiffs were owners of two-thirds of the mill at the time it was destroyed is not controverted; and that Colton was allowed for all of it is very satisfactorily established. We cannot say that the commissioner to whom the cause was referred erred in the amount he found, as the value of plaintiffs’ interest in the mill, and for which Colton, was allowed. The District Court confirmed that finding, and we are content with it.

) But the appellant’s counsel insist that the defendant ¡Colton having so mixed up the claim due plaintiffs with ;;his own, as to render the same inseparable, shall have ¡¡the doctrine applied to him which the law applies to one ¡.who fraudulently mixes his goods with those of another, ¡so as that the goods of neither can be distinguished. That doctrine is not applicable to this case, for several reasons. The defendant Colton is not shown to have been guilty of fraud in the joining of his claim with plaintiffs. They were brothers-in-law, owned the property jointly, and had talked of prosecuting their claims together, though no definite agreement was made in relation to it. The allowance by the board of commissioners of the claims by Colton in gross, instead of by items, was not the fault of Colton, nor indeed could it properly be called even voluntary confusion of his claim with theirs. And again, the amount which plaintiffs should have been allowed for their two-thirds could now be proved, and the presumption would legitimately obtain that the commissioners did right, and allowed that amount. And as to j the rule itself, it may well be doubted whether when the confusion is voluntary but honest, the owner of the goods ¡thus mixed could recover the whole. 2 Pars. on Cont. 474. We are satisfied plaintiffs were allowed the value of their property by the judgment of the court below.

contribution. Second. Ought the defendant Colton to be allowed any thing for expenses incurred in securing the allowance of claim before the board of commissioners aBL¿ jn securing the legislation therefor ? There is no showing or allegation of wrongful or illegal use of money, or of improper influence upon legislation; but simply the necessary expenses incurred in properly presenting the matter before the legislature and its committees, and before the board of commissioners. The defendant therefore ought to be allowed a proper proportion of his reasonable expenses thus incurred. But in our view the District Court allowed more than should have been allowed upon the evidence. The amount allowed as against these plaintiffs should not have exceeded $1,000. For this error the judgment requires modification, and it will be modified accordingly. The plaintiffs will be allowed the sum of $5,000, instead of $4,666.6T, and the same proportions as directed by the original judgment of the District Court; and the balance of the allowance to Colton by the board of commissioners will also be distributed in the manner and proportions directed by that judgment. The defendants will pay the costs of this appeal. The plaintiffs may have the judgment entered in this court, or the cause will be remanded for judgment by the District Court in accordance with this opinion.

Modified and Affirmed.