Childs v. Dobbins

• Decision Date: 06 June 1883
• Citation: 15 N.W. 849,61 Iowa 109
• Parties: CHILDS, BY NEXT FRIEND, v. DOBBINS
• Court: Iowa Supreme Court

15 N.W. 849

61 Iowa 109

CHILDS, BY NEXT FRIEND, v. DOBBINS

Supreme Court of Iowa, Des Moines

June 6, 1883

Appeal from Montgomery District Court.

THE plaintiff claims of the defendant $ 500, with interest at six per cent from March 29, 1875. The petition is in two counts. In the first count of the petition it is alleged that on the twenty-fourth day of March, 1875, when the plaintiff was a minor, and so known to be by the defendant, the plaintiff entered into a written contract with the defendant for the purchase of a certain nursery at Red Oak, and paid him therefor the sum of $ 500. That on the twenty-ninth day of March, 1875, the plaintiff disaffirmed said contract, and tendered back to said defendant all of the nursery stock, at the place where, and in the same condition as when delivered and demanded the repayment of said $ 500, which the defendant refused.

In the second count of the petition it is alleged that the defendant fraudulently represented that said nursery stock was good sound and merchantable, when in truth and fact, as the defendant well knew, the said stock was not in such condition, but had been killed by winter or some other cause and was entirely worthless.

The defendant answered, denying all the allegations of the petition, and alleging that the nursery stock was fruit and ornamental trees and shrubbery, growing in the ground at the time of the sale, and including an interest in and right to the occupancy of the land for an indefinite period, which was real estate, and passed to the plaintiff, and was a part of the consideration and property of said sale, and that plaintiff at no time after he became of age, and before the commencement of this suit, disaffirmed said contract, or offered to restore all property received by him to the plaintiff.

It is further alleged in the answer that the written contract between the plaintiff and the defendant was written by one Lewis, the next friend of plaintiff, and that by his mistake and by accident and oversight, the contract was so drawn as not to include an interest in the ground on which said nursery stock was growing, or pruning knives, plate books, order books, labels, catalogues, price lists, and chart to the nursery, all of which were a part of the property sold to the plaintiff for said $ 500.

The defendant filed an amendment to his answer, alleging that on the twenty-ninth of March, 1875, the plaintiff and the defendant agreed to submit to arbitrators the same subject of controversy as that involved in this suit, and that defendant has at all times been ready to proceed with the arbitration, but the plaintiff refuses to proceed with the same. Attached to this amendment is a copy of the agreement to submit to arbitration, signed by William Dobbins and H. A. Childs only, and not acknowledged, and containing the following provision: "And we hereby pledge ourselves to abide the decision of said arbitrators; and I, B. P. Lewis, sign herewith in behalf of H. A. Childs, and hereby guarantee that said Childs shall well and truly fulfill the above conditions on his part, and comply with the decision of said arbitrators."

The plaintiff demurred to this amendment as follows:

"First. The agreement therein set forth does not amount to a submission to arbitration, in that said agreement is not acknowledged.

"Second. Said amendment shows on its face that no action has ever been taken by said arbitrators, and no award ever made by them."

The court sustained this demurrer, to which ruling the defendant excepted. Before the trial commenced, the defendant moved the court for a separate trial on each of the counts in the plaintiff's petition, for the reasons:

"First. That trial of both of said counts at the same time tends to confusion.

"Second. A trial of said alleged cause tends to confuse matters. The evidence is voluminous, and the two different trials already had show to what extent confusion arises by such trial of all of said issues at the same time.

"Third. That at the April term, 1880, of this court, a demurrer of defendant to the first count or claim of the petition was sustained; that thereupon plaintiff's counsel in open court stated and agreed that, if said cause would be continued as to the other counts, in the event of an affirmance by the supreme court of said ruling and an order sustaining said demurrer, then a non-suit as to said other count would be made, and that they did not intend to try said other count alone; that at the last term of this court defendant's counsel asked for a trial on said other count, and plaintiff's counsel again so stated as above, whereupon the court passed said cause, and gave defendant no trial.

"Fourth. That from the statement of facts set forth in the foregoing paragraph there can be no question but that plaintiff retained last count for the one purpose of confusing and assistance on the trial of the first count; wherefore defendant asks that each count stand upon its own merits or want thereof."

In support of this motion, the defendant filed his own affidavit that the statements of the third paragraph of the motion are true. The court overruled the motion, and the defendant excepted. The trial was to a jury, and resulted in a verdict and judgment for plaintiff for $ 680. The defendant appeals. The case has before been in this court. See 55 Iowa 205.

REVERSED.

Smith McPherson, for appellant.

C. E. Richards, and Miller & Bartholomew, for appellee.

OPINION

DAY, CH. J.

I. The defendant insists that the court erred in refusing to order separate trials on each of the two counts in the plaintiff's petition. The application for separate trials was based upon section 2746 of the Code, which is as follows "The court may, in its discretion, allow separate trials between the plaintiff and any defendant, or of any cause of action united with others, or of any issue in an action; and such separate trials may be had at the same or different terms of the court, as circumstances may require." The appellant concedes that under the provisions of this section it is discretionary with the court whether separate trials be granted or not, but insists that the discretion authorized is a legal discretion, and that it was greatly abused in this case. The plaintiff seeks the recovery of but one sum from the...