Balch v. Ashton & Co.
| Decision Date | 17 June 1880 |
| Citation | 54 Iowa 123,6 N.W. 146 |
| Court | Iowa Supreme Court |
| Parties | BALCH v. ASHTON & CO. |
OPINION TEXT STARTS HERE
Appeal from Clinton circuit court.
Action upon a contract set out in the opinion. Upon motion of plaintiff the cause was transferred to the equity docket. A judgment was rendered for plaintiff. Defendants appeal.S. L. Baker, for appellants.
W. C. Grohe, for appellee.
1. The action was brought at law upon a contract in the following words:
“DELMAR, September 29, 1875.
Clause 1. We hereby agree with each other as follows: That said S. R. Gold, of the first part, has taken about $1,500 worth of boots and shoes, more or less, of Balch & Co., of the second part, for which S. R. Gold agrees to pay in a note, six months from date of same, 50 cents on the dollar of invoice of goods.
Clause 2. Goods to be sold, and, if they bring invoice price in full, Balch & Co. shall have 75 cents on the dollar, and S. R. Gold 25 cents on the one dollar, or value, to make up same amount note calls for first given; the first one-half to be paid in full before clause 2 takes effect.
If the goods sell at over invoice prices, Balch & Co. shall have pay at invoice prices in full.
+---------------------+
¦[Signed]¦S. R. GOLD. ¦
+---------------------+
BALCH & CO.”
The original petition alleges that the contract was executed by Gold for and on behalf of defendants, and that the goods contemplated in the contract were received by defendants, who have failed to account and pay therefor. An amended or substituted petition was filed, which alleges that goods of the value of $900 were delivered to defendants under the contract, and were sold by defendants; that all accounts and evidence of sales are within their knowledge, and that they have refused to account or pay for the goods under the contract. The petition admits that the notes provided for by the contract have been paid, and prays that an account of the sales be taken and a commission be appointed to take an account and evidence, and report the same to the court. The answer of defendants admits the execution of the contract and the receipt of the goods, and alleges that they have paid plaintiff therefor the full amount provided for by the contract. Defendants also allege that their books were destroyed by a fire, and that while the books were in existence defendants offered them to the inspection of plaintiff.
2. Upon motion of plaintiffs the cause was transferred to the equity docket, to be tried as an equitable action. This order is now assigned for error; but plaintiff shows that no exception was taken to the ruling in the court below, and that the statement in the abstract of such exception is incorrect. This correction of the abstract is not controverted by defendants; it must, therefore, be taken as true, under a familiar rule of practice in this court. As we are required to hold that the order in question was not excepted to in the court below, it cannot be reviewed here.
3. The cause having been regarded in the court below as an action in chancery, and so tried, it must be heard in this court as prescribed by the rules applicable to equity cases. Van Orman v. Merrill, 27 Iowa, 476;Tugel v. Tugel & Tagen 38 Iowa, 349;Green v. Marble, 37 Iowa, 95;Richmond et al. v. The D. & S. C. R. Co. et al. 33 Iowa, 422.
4. We will proceed to consider the case upon the evidence before us, regarding it as triable here de novo. It will be first necessary to briefly consider the contract, which is the foundation of the action. The defendants undertake to pay 50 per centum of the invoice price of the goods and to execute their note therefor. The notes have been paid, and no question arises upon this part of the contract. It is next provided that if the goods are sold at or above the invoice price, further payments are to be made to plaintiff. Upon this provision of the contract the controversy before us arises. The provision is plain, and demands no other interpretation than is readily drawn from its language....
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