Brown v. Schmitz
| Decision Date | 02 April 1946 |
| Docket Number | 46838. |
| Citation | 22 N.W.2d 340,237 Iowa 418 |
| Parties | BROWN et al. v. SCHMITZ et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Linn County; M. C. Hamiel, Judge.
John D. Randall, of Cedar Rapids, for appellants.
Donnelly Lynch, Anderson & Lynch, and Yessler & Fahey, all of Cedar Rapids, for appellees.
Our review of this case has been more difficult because the trial court with consent of counsel, ordered that the record upon appeal include the complete transcript of the reporter's notes of the trial. Nothing has been abstracted. The record contains numerous questions to witnesses which were withdrawn, the complete testimony of a witness which was stricken, and of which ruling no complaint is made, and much other matter that is not material to the appeal.
Rule 340, Rules of Civil Procedure, contemplates that the record upon appeal shall consist of a summarized and abridged statement of so much of the record in the trial court as is material to the appeal. Testimony should appear in narrative form unless it is deemed of particular importance that it be shown by question and answer. Reasonable compliance with Rule 340 will facilitate the work of the court.
In the fall of 1942 plaintiffs, Brown and Sylling, were partners who operated a livestock sales barn at Spring Grove in southeastern Minnesota. Defendants, Schmitz and Easker, were partners in the operation of a similar establishment in Cedar Rapids, Iowa. The principal business of each was the sale at auction of livestock for others at a commission to the seller of 3 per cent. Between October 29 and December 2, 1942 Adrian R. Mead, whose home was in Manchester, Iowa, bought cattle at different sale barns, and in some instances from farmers, in the vicinity of northeastern Iowa. Mead shipped many of these cattle to defendants' barn in Cedar Rapids where these cattle he shipped to a sale barn in these cattle he shipped to a sale barn in Manchester to be sold. Mead also sold a few of the cattle purchased by him to individuals.
On December 1, 1942, Mead purchased 29 cattle at plaintiffs' sale barn for which he gave plaintiffs a check signed by him for $2878 drawn on Peoples Savings Bank of Cedar Rapids. In the lower left corner of the check, following the printed words 'Drawn at' and above the printed words 'name of town,' was written 'Iowa Livestock Sales Co.' Mead, who wrote the check, testified in substance that he intended the last quoted words to refer to 'Iowa Livestock Exchange,' defendants' trade name. The check was protested for nonpayment on December 7. This action was brought to recover from defendants the amount of the check on the theory, as the pleadings stood at the trial, that Mead was defendants' agent in the purchase of the cattle. Trial was to the court. At the conclusion of plaintiffs' evidence, defendants' motion to dismiss (equivalent to a motion for directed verdict if there had been a jury) was sustained and plaintiffs have appealed from judgment of dismissal.
I. Plaintiffs complain that certain amendments to their petition were stricken or dismissed. In February, 1943, plaintiffs filed their amended and substituted petition in five counts. Count 1 alleged that defendants orally agreed with Mead to pay for all cattle for which he would draw checks or drafts upon defendants. (It is plaintiffs' theory that the check for $2878 was drawn upon defendants.) Count 2, upon which the case was tried, alleged that Mead purchased the cattle from plaintiffs as defendants' agent. Count 3 was based on the execution and delivery to plaintiffs of the check or draft for $2878. Count 4 alleged the wrongful conversion of cattle purchased from plaintiffs by defendants through their agent Mead. Count 5 was based on the theory of unjust enrichment.
Defendants demurred to counts 1, 4 and 5 on the ground that each count failed to state a cause of action. Motions to strike portions of counts 2 and 3 were also filed. On May 26, 1943, defendants' demurrers to counts 1, 4 and 5 were sustained. Plaintiffs were given 10 days to plead over or to stand upon the rulings. At this time, too, there were striken certain allegations of count 3 and allegations of count 2 (upon which trial was had) that defendants had held out Mead as their agent. Plaintiffs filed no further pleading until August 10, 1943. In the meantime, on June 9, 1943, plaintiffs having failed to plead over within the time fixed by the ruling of May 26, judgment was entered dismissing counts 1, 4 and 5 at plaintiffs' costs. Plaintiffs did not appeal from this judgment and have not assigned it or the ruling of May 26 as error upon this appeal.
On August 10, 1943, plaintiffs added counts 6 to 10 to their amended and substituted petition. These counts proceeded on the same theories, and the allegations are similar to those, expressed in count 2, upon which trial was had, count 3, and counts 4 and 5, previously held bad upon demurrer. Upon September 11, 1943, a demurrer to count 3 was sustained and counts 6 to 10 were stricken or dismissed on defendants' motion. Plaintiffs were given 10 days to plead over or to stand on the ruling.
Plaintiffs filed no further pleading until October 4, 1943, when they added counts 11 and 12, each of which alleged merely that plaintiffs sold cattle to defendants through their agent Mead, of the agreed value (in count 11) and of the reasonable value (in count 12) of $2878. These allegations were a substantial repetition of count 7, which was dismissed on September 11 and added nothing to count 2, upon which trial was had. On October 18 judgment was entered striking counts 3 and 6 to 10, at plaintiffs' costs, for failure to plead over within the time fixed by the ruling of September 11. Counts 11 and 12 were also stricken because not filed within the time granted to plead and because they were a repetition of allegations in a count previously dismissed.
On the third day and again on the fourth and last day of the trial in May, 1945, plaintiffs asked leave to amend their petition to plead that defendants authorized their agent Mead to draw drafts on them for the purchase of livestock in the total sum of about $26,000 all but one of which were paid by defendants who ratified the were paid by defendants who ratified the his agency. The trial court refused to permit the filing of these amendments. The court also struck, as too late, plaintiffs' reply, filed just before the trial, which also alleged that defendants were estopped to deny the agency of Mead.
Abuse of discretion in striking plaintiffs' reply does not appear. The answer to which the reply purported to respond was filed October 8, 1943. Rule 85(c), Rules of Civil Procedure, requires, 'Reply must be filed, if at all, within seven days after the answer to which it responds, * * *.' Plaintiffs concede that all proceedings in this action after July 4, 1943, when these Rules took effect, were governed thereby. The reply was not filed until nearly 17 months after the answer. This delay was sufficient justification for the striking of the reply. This conclusion is in no way inconsistent with our holding in City of Des Moines v. Barnes, Iowa, 20 N.W.2d 895, where plaintiff acquiesced in defendant's delay in filing answer and failed to move for default until after answer was filed.
Defendants' answer consists of admissions and denials of allegations in plaintiffs' count 2. A reply was therefore not necessary. Rule 73, Rules of Civil Procedure; State ex rel. Kuble v. Capitol Benefit Association, Iowa, 21 N.W.2d 890, Mantz, J. Whether, as defendants contend, a reply was not permissible because the answer contained no new matter, we need not decide.
A ruling on a demurrer in and of itself settles nothing. Whitfield v. Grimes, 229 Iowa 309, 319, 294 N.W. 346, and cases cited; Schwartz v. Consolidated School District, 225 Iowa 1272, 1278, 282 N.W. 754, and cases cited. However, the judgment of June 9, 1943, dismissing counts 1, 4 and 5, following the sustaining of demurrers and failure to plead over within the time allowed, was a final determination of the causes of action therein stated. This is the effect of section 11148, Code 1939 , then in force, superseded on July 4, 1943, by Rule 86, Rules of Civil Procedure. Rule 86 was clarified by amendment, effective July 4, 1945. See page 339, Acts 51st G.A. This is also the effect of our decisions, regardless of statute or rule, and of the decisions generally. Oates v. Morningside College, 217 Iowa 1059, 1064, 252 N.W. 783, 91 A.L.R. 563, and authorities cited; Cooley v. Maine, 183 Iowa 560, 165 N.W. 1015, and cases cited; Lamb v. McConkey, 76 Iowa 47, 40 N.W. 77; Annos. 106 A.L.R. 437, 13 A.L.R. 1104; 41 Am.Jur. 468, 469, section 251. There is nothing in the Rules of Civil Procedure which justifies a contrary holding.
As stated plaintiffs do not assign as error the judgment of dismissal on June 9. Nor do they assign error upon the sustaining of the demurrer to count 3 nor the judgment dismissing this count. They do assign as error, however, the striking or dismissal of counts 6 to 12 and the judgment of October 18, 1943, dismissing counts 6 to 10 at plaintiffs' costs. Without holding that upon this appeal plaintiffs are entitled to a review of the judgment of dismissal of October 18 from which no appeal was taken, we are satisfied plaintiffs' counts 6 to 12 either add nothing material to the allegations of count 2, upon which trial was had, or reallege the same causes of action stated in counts 1, 3, 4 and 5, which were dismissed by judgment after demurrers had been sustained and failure to plead over within the allotted time. Since these causes of action, insofar as they differ from that stated in count 2, had been adjudicated adversely to plaintiffs, they...
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