Arthur Elevator Co. v. Grove

Citation236 N.W.2d 383
Decision Date17 December 1975
Docket NumberNo. 57069,57069
PartiesARTHUR ELEVATOR COMPANY, Appellant, v. Burly GROVE, Appellee.
CourtUnited States State Supreme Court of Iowa

Morris C. Hurd, Ida Grove, and McDonald, Sayre & McDonald, Cherokee, for appellant.

Hamilton, Connell, Redenbaugh & Duffy, Storm Lake, for appellee.

Heard before MOORE, C.J., and MASON, REES, HARRIS and McCORMICK, JJ.

MASON, Justice.

The trial judge stated he was not amused as to the way the record came in in this matter and described it as 'the most bizarre lawsuit.' A review of the record compels the conclusion there is ample support for his observation. During a period of more than two years before trial various pleadings, amendments thereto and motions were both dictated into the record and asserted in writings filed. There were additional pleadings and motions filed during trial. The facts and amounts claimed are confused, partly due to the poor records kept on both sides. Plaintiff appeals.

Plaintiff, Arthur Elevator Company, an Iowa corporation, was organized January 1, 1965. Its predecessor company of the same name was a partnership and had been in operation since 1943. Defendant Burly Grove is a farmer in Ida County.

Plaintiff commenced a law action seeking to recover the agreed charges for goods and merchandise sold and delivered to defendant which were alleged to be the actual and reasonable charges for such merchandise.

In an amended and substituted petition plaintiff demanded judgment for $2000.51 as the amount due. At this stage of the pleadings plaintiff had plead and was relying on an open continuous account as a theory for recovery. A bill of particulars marked exhibit B was attached and made a part of this petition. Plaintiff also prayed for an attachment alleging 'defendant is about to dispose of his property with intent to defraud his creditors.' A writ of attachment was ordered to be issued upon filing a $5000 bond. At the dictation of plaintiff the sheriff levied upon 'such cattle owned by Burly Grove and in his possession to bring the exact amount of $3383, nearly as practicable' under the writ. It appears both parties concede 55 head of defendant's cattle were levied on.

Defendant filed motion for more specific statement requiring plaintiff to state in more specific details the itemization contained in exhibit B. The motion was sustained. Rather than seeking to comply with the court's order sustaining defendant's motion plaintiff again amended its petition. In a new division plaintiff alleged that on the 30th day of June 1967 an account was stated between plaintiff and defendant upon which a balance of $2000.51 was found due plaintiff from defendant. Judgment was demanded for this amount with interest and costs.

The day trial finally commenced defendant filed answer alleging inter alia the bill of particulars attached to plaintiff's petition was not a correct itemized statement showing the activity on the alleged account and further alleged defendant had not received all credits due him in connection with this account. In a separate division defendant asserted a counterclaim seeking damages for wrongful attachment. In another division defendant alleged plaintiff had failed to give him credit for certain drafts issued to plaintiff and had likewise failed to credit him with the price of corn defendant had delivered to the elevator. In still another division of his answer defendant sought recovery for work performed by him in applying fertilizer on farms of the elevator's customers under an oral contract fixing the rate of pay at $2.00 per acre.

Trial was to the court.

At the conclusion of plaintiff's evidence defendant moved for a directed verdict on the following grounds: '(1) Under Division I of Plaintiff's Petition this action is based on an open account. There is no proof in the record at this point of any entries or itemizations of any sums of money that would equal the first entry, the same being $1,513.16. (2) Now, as to Divison II, Counsel would move the Court to further direct a verdict because this is an account stated allegation; and I think to have an account stated you must have some admission that a sum certain is acknowledged due and owing between the parties. And in the record there is no sum certain determined or placed in the record. (3) And I want to strike all matter pertaining to service charges. There is no agreement that this could be applied to the account.'

The court overruled part (1) of the motion and sustained parts (2) and (3).

During presentation of defendant's evidence he moved that the attachment be dissolved or dismissed. The motion was sustained.

As finally submitted to the court plaintiff's action was based on an open account with a beginning balance of $1513.66 as of January 1965. Plaintiff corporation had acquired the assets of its predecessor including accounts receivable. Plaintiff contended that among these accounts was one owed by defendant and the beginning balance of the account sued on was the balance carried forward from defendant's account with the partnership as of September 23, 1964.

The first debit shown in exhibit B was a service charge of $15.13. Other service charges were debited to defendant's account: February 27 in the amount of $15.28; March 31, $15.44; and April 3, $15.99, making a total of $1575.10 due April 30, 1965.

The beginning balance plus the service charges mentioned gives rise to the controversy over the amount of plaintiff's claim. The account was credited with two checks given by defendant to plaintiff, one June 8, 1965 in the amount of $700; the other June 29 in the sum of $875.10. The total of these checks was the exact amount of the April 30 balance shown by the account.

The trial court found plaintiff had failed to establish the pre-1965 balance relied on by plaintiff as one of the items included in the total amount for which recovery was demanded. The court refused to allow service charges in the sum of $359.40 for 1965, 1966 and 1967. Based on this calculation the trial court found the total debits on the 1965--67 account to be $5121. The court further found credits in the total amount of $5073.17 which included the June 8 and June 29 checks previously mentioned and determined plaintiff had proved an excess of debits over credits of $47.83.

The court found defendant had failed to sustain his burden of proof as to the various items for which he sought recovery in the separate divisions comprising his counterclaim with the exception of the claim based on the application of fertilizer on farms of plaintiff's customers and that division based upon his claim for wrongful attachment.

The court allowed defendant $2107.15 for fertilizer application, actual damages for wrongful attachment in the sum of $10,704.20 and exemplary damages in the sum of $286.71 which resulted in a total judgment in favor of defendant of $16,050.13, after crediting the amount allowed on plaintiff's open account.

The issues presented on this appeal stem from plaintiff's assignments of error. It contends the court erred in: (1) deducting the amount of the opening entry on the account ledger from the amount due plaintiff by defendant as it was shown admitted and paid by defendant in subsequent entries on said account ledger; (2) awarding the defendant judgment for ammonia application done for the predecessor company in the years 1963 and 1964 as the plaintiff assumed no accounts payable from its predecessor; (3) awarding the defendant damages for wrongful attachment since the only damage claimed was loss due to prevention from sale of attached livestock and plaintiff had offered to release the livestock attached for sale; (4) awarding the defendant exemplary damages for wrongful attachment when no actual damage was shown or no malice was shown or when plaintiff agreed to release the attachment on the livestock; and (5) awarding the defendant judgment including damages for wrongful attachment and exemplary damages to a defendant primarily on his testimony when the defendant attempted to deceive and mislead the court with altered and false exhibits.

The issues presented will be considered other than in the order set out above.

I. One of the issues presented by this appeal concerns the two invoices admitted into evidence during trial which, but for their year dates, were identical. Plaintiff's invoice was the original and bore the date May 26, 1961. Defendant's invoice, on the other hand, was a photostat bearing the date May 26, 1967. The copy from which the photostat was reproduced was unavailable. Defendant, while on the stand, denied any knowledge of a date alteration. In any event, a study of the two invoices leads one to the inescapable conclusion defendant's copy was altered.

Plaintiff argues the case should be reversed for this 'obvious attempt to deceive the Court.' Defendant counters these allegations indicate plaintiff's counsel is 'desperate and very irresponsible' and that such is neither 'proper' nor 'ethical.' Defendant insists plaintiff should have brought forth these accusations during trial with the aid of a handwriting expert. Although plaintiff made no motions or objections concerning the matter, it did extensively examine defendant in an attempt to achieve an explanation of the discrepancies.

In the face of such a record the trial court made no mention of the matter in its findings of fact or conclusions of law. It nevertheless did Not award defendant credits for which the invoice was introduced as proof. The invoice, then, did not instigate any increase of damages for defendant. This court is now faced with the question whether it should reverse the entire decision based upon defendant's asserted false testimony concerning his invoice.

In a law action tried to the court, as here, this court construes the evidence in the light most favorable to the trial court's judgment and we will not weigh the evidence or pass on the credibility of the witnesses. Thomas Truck &...

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