Bonnot Co. v. Newman

• Decision Date: 26 October 1899
• Citation: 109 Iowa 580,80 N.W. 655
• Parties: BONNOT CO. v. NEWMAN ET AL.
• Court: Iowa Supreme Court

109 Iowa 580

80 N.W. 655

BONNOT CO.

v.NEWMAN ET AL.

Supreme Court of Iowa.

Oct. 26, 1899.

Appeal from district court, Polk county; T. F. Stevenson, Judge.

Action at law to recover the possession of specific personal property or its value. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal. Modified and affirmed.Read & Read and Spencer S. Cole, for appellants.

Cummins, Hewitt & Wright, for appellee.

ROBINSON, C. J.

In November, 1895, the plaintiff sold to F. K. Ebersole the property in controversy, consisting of certain machinery for the making of brick, for the sum of $2,265. The contract of sale provided that the machinery should “be and remain the property of the Bonnot Co. until paid for.” A few days before that contract was made, Ebersole had entered into an agreement with the defendant Newman Bros. for the sale to them of brick-making machinery, the price of which was $6,250. The machinery sold by the plaintiff to Ebersole was a part of that which he sold to Newman Bros., and the contract between Ebersole and Newman Bros., as signed, provided that the machinery therein described “should be and remain the property of the Bonnot Co. until paid for.” Both contracts provided that the machinery sold by the plaintiff should be delivered to Newman Bros., and it was so delivered. Only $1,000 of the contract price due to the plaintiff has been paid, and it demands judgment for the return of the property which it sold, or, if that cannot be found, for the amount due to it, with interest. The defendants Newman Bros. and the partners who compose the firm deny that the contract they entered into with Ebersole contained the clause which we have quoted, and in a cross petition aver that it was inserted without their knowledge, and by mistake, unless Ebersole had knowledge of it, and, if he did, that it became a part of the writing signed by fraud and misrepresentation. They ask that Ebersole be made a party to the action, and that the contract with him be reformed by striking out the clause alleged to have been wrongly inserted. On the motion of the defendants it was ordered that the issues presented by their cross petition be tried by equitable proceedings, and that the trial of other issues be postponed until the equitable proceedings should be terminated. A trial of the equitable issues was accordingly had Ebersole was adjudged in default, and a decree was rendered reforming the contract with him as prayed. We understand that an appeal was taken from that decree, and that it was reversed. See Bonnot Co. v. Newman, 78 N. W. 817. After the equitable issues were thus disposed of by the district court, the remaining issues were tried as at law, by jury. A verdict for the plaintiff was returned, and the value of the property in controversy was fixed at $1,200, and judgment was rendered for the return to the plaintiff of the property, and in case it should not be promptly returned, or the plaintiff should be unable to obtain possession of it, free from incumbrance, that the plaintiff recover the sum of $1,200, with interest. The cause was tried in the district court while the decree rendered in the equitable proceedings was in force, on the theory that the decree was final, and will be so tried here.

1. The court permitted the plaintiff to show the negotiations which led to the making by the defendants of the two contracts, and of that the defendants complain. We think the evidence objected to was competent as tending to sustain the averments of the petition to the effect that the defendants...