125 Iowa 59 | Iowa | 1904
The first action brought by plaintiff was at law to recover for money had and received, for work and labor performed, and the value of property converted; to adjust an account between the parties, and to recover overpayments made by plaintiff thereon through the delivery of property and evidences of indebtedness; to recover specific property in the form of notes and mortgages; to recover a penalty because of defendant’s failure to release certain mortgages held by him; and for some other items not necessary to be enumerated at this time. The prayer was for a money judgment against the defendant, for the cancellation of certain notes and mortgages, and for their possession, and for the penalties prescribed by statute for failure to release satisfied mortgages. On the same day plaintiff filed a petition in equity in which he recited many of the matters referred to in his petition at law; reiterated his statements regarding certain mortgages held by defendant; claimed that they were paid by agreement between the parties, and also by reason of the conversion of certain property belonging to plaintiff; and he asked a decree that the mortgages be declared paid, directing defendant to release the same, for a decree of cancellation, and for other equitable relief. Defendant filed a motion to consolidate the two suits, and to try the same in equity. After an answer had been filed in each case which tendered equitable issues, this motion to consolidate was sustained, and plaintifE excepted. When
“ W. E. Twogood: There was a man here by the name of Guinn, from Marengo, to buy the machine, but he don’t seem to have any cash. He wanted to give a mortgage on the machine, and a mortgage on one half the amount of the threshing he did. Leave all bills at the Marengo bank, and let them pay it there, what would you think of that kind of a deal. It would be for you to say. I am not posted, he looked it all over, ses it will need some repairs he said he could not find the tank and sed thare wasnt eny saw it the framewhere are they. Please advise me in regard to the above. I havent received that May yet please send me $100.00 if you posably can for I am hard up. Your, G. A. Allee.” ‘
To this plaintiff, under date of July 2, 1900, responded as follows:
“Mr. G. A. Allee I reseived your letter today if you think it all rite you do just as you wan to for I am selling it to pay you eny bargin you can make if you can sell him the machean all rite, i eill pay you for the trouble but i think he would give a mortgage on a team to but any bargin you can make so you can git your pay out of it all rite, for that is just what I want the tank and wagon you see pery Crawford he noes i aint got my cheek yet but i will go to mason City as soon as i can we had a strike here to day and*64 all the Quigl'ies stopped work and i am short of men now George you do the best you can with the machean all i want is to satisfy you so eny .bargin you make it will sute me so it pays my note you can give him all the time he wants if it is satisfactory to you as soon as i get s some money i will send you som. Yours as ever, W. E. Twogood.”
Pursuant to the authority thus conferred upon him, defendant sold the machine, with some other property, which is in dispute, to one Guinn, for the sum of $425; taking his notes therefor, secured by mortgage upon the property sold. These instruments were taken in the defendant’s name. Before this sale occurred, plaintiff became further indebted to the defendant on book account; and, after the writing of the letter to which we have referred, plaintiff sent defendant a. draft or check for $100, part of which was applied to the payment of this book account, and the balance, after meeting some expenses for the repair of the threshing outfit, was applied on plaintiff’s notes. Plaintiff contends that defendant sold to Guinn certain property, which was not covered by the mortgage on the threshing outfit, and was no part thereof; that he had no authority to make the repairs and to charge the same to the plaintiff; that defendant is indebted to him for certain labor performed; that the mortgage indebtedness was satisfied by the sale of the machine to Guinn; and that defendant is indebted to him for the conversion of the property. Defendant denies the alleged conversion, and pleads payment of the work and labor performed; that he sold the machine to Guinn as plaintiff’s agent, and held the "note and mortgage given therefor as security; that he has credited all payments made by Guinn upon his notes upon plaintiff’s notes; and that a balance remains due on these last-mentioned notes, for which he should have judgment.
The question of the conversion of the thresher outfit, proper, is out of the case, for the reason that the sale thereof was authorized by the plaintiff. And the only question here is, did defendant agree to accept the purchase price, or the
Defendant had judgment for the balance due on his notes made by the plaintiff, after deducting proper credits, and the decree, as a whole, seems to be correct. It is therefore affipned.