Way v. Council

76 Iowa 741 | Iowa | 1888

Rothrock, J.

— The plaintiff ■ was formerly the undisputed owner of the property in controversy. It consisted of a lot upon which, there is a store building in the village of Montour. About March 1, 1886, the defendant Jane Council, and one Tyner, made their appearance at Montour. Their business was to sell territorial rights to a patented washing-machine. It appears that the plaintiff had some previous knowledge of Tyner. He had been living near the village for some time. The plaintiff had a stock of merchandise in his store building, and Tyner and the woman Council commenced negotiations with plaintiff to exchange washing-machine territory for his property. The parties made an oral agreement, by which the woman, who was the owner of the patent-right, was to convey to plaintiff the right to fifteen counties in this state for the lot and building, and to take the stock of goods at their cost price, and pay cash therefor. The parties made an invoice of the goods for the purpose of ascertaining the amount of money to be paid. They were engaged upon the invoice for some three days. During this time Mrs. Council requested a conveyance of the real estate to her. The plaintiff objected to making the conveyance until he was paid for the goods. The woman insisted upon the conveyance, and on Saturday, March 6, 1886, the plaintiff made a deed of the property to the woman, and she made a deed of the patent-right to the plaintiff. On Monday following Mrs. Council conveyed the real estate to the defendant W. S. Doe, and two days thereafter Doe mortgaged the property to the defendant Taplin for six hundred dollars. The woman pretended that her money to pay for the goods was at Marshall-town, and the parties went there to close the'transaction. But Mrs. Council paid no money, and- she and Tyner left that part of the country. As the result of his dealings with the woman and Tyner, the plaintiff had conveyed his lot and store-building for the patent-right, and he did not succeed in making a sale of his goods.

He claims that he did not deliver the" deed of the property to Mrs. Council, but that he deposited it with Tyner as an escrow, with the express agreement that it was not to be delivered to Mrs. Council until she had paid the cash for the goods ;' and that the woman either stole the deed from Tyner, or he wrongfully delivered it to her. He also claims that he did not accept the patent-right deed, but that the woman laid it down in the store. In short, his claim is that the whole transaction was a fraud and a conspiracy, concocted by the woman and Tyner, and participated in by Doe and others, to cheat him out of his property. This is denied by the defendants Doe and Taplin, and the evidence introduced on the trial was for the purpose of establishing the proposition upon the part of the plaintiff, and disproving it upon the part of the defendants. The woman Council, and her assistant Tyner, conducted their operations as is usually done in suóh cases. They enlisted residents of the village as- assistants, who pretended to be greatly interested in the enterprise, and to whom pretended sales of rights and machines were made; and used all the usual appliances, which need not be further referred to here. If the defendant Doe was one of these assistants orcappers,” the conveyance to him should be set aside and cancelled, for such a business is essentially fraudulent. We have given all of the evidence most careful and thorough consideration, and, without setting it out in detail, we will merely state our conclusions, or the facts which we find as established or not established by the evidence. The plaintiff in his testimony as a witness does not claim that the patent-right is worthless. He admits that, if he had received the money for his stock of goods, the transaction would have been satisfactory to him. It would seem from this that his loss or damage consisted in the failure of the woman to take his goods at cost price, and pay him cash therefor. We have no doubt he had the right to make the contract entire, and to require the payment of the money for the goods before ' conveying the property. But while it is true he testified positively that he deposited the deed with Tyner as an escrow, yet we think his testimony on that point is overcome by the testimony of other witnesses of his repeated declarations that he had delivered the deed, conveyed the property, etc.' Even if we should think that the preponderance of the evidence was with the plaintiff on this point, yet, in our opinion, it cannot affect the conveyance to Doe, for two reasons : First, it is shown by a preponderance of evidence that Doe had no connection with any of the fraudulent acts complained of ; and, second, the proven declarations of the plaintiff induced Doe to believe that the title was held by Mrs. Council, and Doe in good faith acted thereon. This would estop the plaintiff from asserting title as against Doe. Haven v. Kramer, 41 Iowa, 382. Considering all of the evidence, the impression left upon the mind is that the plaintiff has no just ground of complaint against Doe; and, 'as-Doe’s title to the property is complete, no complaint can be made in respect to the mortgage held by Taplin. The appellee contends that the record made upon the appeal is defective, and that appellants are not entitled to a trial anew in this court. We do not think this claim is well founded. The certificate of the judge is in due form, and it clearly identifies the evidence which was offered and introduced upon the trial.

Reversed.