Brennecke v. Heald

• Decision Date: 27 January 1899
• Citation: 77 N.W. 1063,107 Iowa 376
• Parties: BRENNECKE ET AL. v. HEALD.
• Court: Iowa Supreme Court

107 Iowa 376

77 N.W. 1063

BRENNECKE ET AL.

v.HEALD.

Supreme Court of Iowa.

Jan. 27, 1899.

Appeal from district court, Marshall county; Obed Caswell, Judge.

Plaintiffs bring this action to recover damages in two counts,--the first, to recover for a breach of contract; and the second, to recover for false and fraudulent representations. Issues were joined as will hereafter appear, and, on trial had, verdict and judgment were rendered in favor of the plaintiffs for $350. Defendant appeals. Affirmed.Binford & Snelling and J. M. Whitaker, for appellant.

J. M. Parker, for appellees.

GIVEN, J.

1. The defendant sold and delivered to the plaintiff firm, for the consideration of $350, certain tools, implements, and supplies kept in a certain meat market on leased premises in the city of Marshalltown, and one buggy and set of harness. The plaintiffs claim that the contract was verbal, and that defendant agreed, as part of the consideration, that he would secure from the owner of the building, for the plaintiffs, a lease for the term of one year, with the privilege of two more years, at a rental of $50 per month; and they allege that he failed to do so, to their damage. The defendant claims that the contract was in writing, and that thereby the plaintiffs assumed the existing lease, and denies that any other contract was made. He sets out a writing claimed to be the contract, reciting that, for the consideration of $350, “I hereby agree to turn over to Brennecke Bros. the following property.” Here follows an enumeration of the tools, etc., and then the following: “The said Brennecke Bros. to assume the lease now on said building belonging to Mr. Bailey, and occupied by the Huffaker Meat Co.” There is no provision in this writing for the defendant procuring a lease for the plaintiffs.

The defendant's first contention is that the court erred in admitting evidence over his objection tending to show a verbal contract. There is evidence tending to show that this writing was made out at the time of the sale, but not signed by the plaintiffs, and there is a conflict as to whether it was accepted by them. The court instructed that it was claimed by the plaintiffs that the contract was in parol, and by the defendant that this writing was the contract, and that “it is for the jury to determine the truth as to that; and, in determining that question, you should consider the testimony of the witnesses, and all the circumstances bearing upon the question. If you find that said original written matter, called by the defendant the ‘written contract,’ was made...