Cole v. Laird

• Citation: 96 N.W. 744,121 Iowa 146
• Parties: C. T. LAIRD, Appellant, v. J. C. COLE, (or as it Should be Docketed) J. C. COLE v. C. T. LAIRD, Appellant
• Decision Date: 08 October 1903
• Court: United States State Supreme Court of Iowa

96 N.W. 744

121 Iowa 146

C. T. LAIRD, Appellant, v. J. C. COLE, (or as it Should be Docketed) J. C. COLE v. C. T. LAIRD, Appellant

Supreme Court of Iowa, Des Moines

October 8, 1903

Appeal from Taylor District Court.--HON. R. L. PARRISH, Judge.

THIS action was brought by Cole against Laird to recover the purchase price of two windmills. The trial court directed a verdict for plaintiff, and defendant appealed. In presenting the case to this court he reversed the names used in the title, contrary to the statute and to our rules, and has thus introduced confusion into a record, which, without this mistake, is not clear. The case should be entitled Cole v Laird, Appellant, and it will so appear in the reports.

Reversed.

J. C Askin for appellant.

Flick & Jackson for appellee.

OPINION

DEEMER, J.

The record is in a very confused state, and we have had some difficulty in arriving at the exact points for decision. The action is to recover the purchase price of two windmills with tanks and fixtures, alleged to have been sold to defendant, Laird. After admitting that plaintiff was and is engaged in the hardware business at the town of Gravity, defendant interposed a general denial of the allegations of the petition. In a distinct division he pleaded rescission of the contract, and in another, what, as we understand, amounts to a plea of failure of consideration. He also pleaded a counterclaim for breach of warranty, and also asked damages for false and fraudulent representations in the sale of the mills. The damages asked under this counterclaim were, first, $ 10 expense in putting up other mills; and, second, loss of flesh and growth in defendant's cattle, due to the failure of the mills to furnish an adequate supply of water. This latter element of damages was stricken out on motion, and thereupon the defendant amended by claiming damages due to loss of a pasture during the season of 1899. A motion was made to strike this claim for damages, but it was overruled. Plaintiff filed a reply, in which he denied any warranty or misrepresentation, and further pleaded that whatever of fault there may have been in the mills was due to defendant's insistence on improper equipment of the mill. It was on these issues, as we understand it, that the case was tried, resulting in a directed verdict for plaintiff for the price or value of the property.

There was manifestly no error in striking from defendant's counterclaim damages due to loss of flesh and growth of cattle. Such damages, are entirely too remote. There remained, however, his plea of failure of consideration, his claim of rescission, and his counterclaim growing out of breach of warranty, resulting in damage to pasture and expense in erecting other mills. Defendant proved without objection that he purchased the mills for one Finn, and not for himself, and that plaintiff knew of this fact when he sold the mills, and in fact gave credit to Finn. After this evidence was in, plaintiff moved to strike it, because irrelevant to any issue in the case. The trial court sustained the motion on the theory that such evidence was not relevant under a general denial. After the evidence was closed, defendant offered to amend his answer by pleading that he bought the mills as the agent of Finn. Whether this offer was made before or after plaintiff's motion for a directed verdict was filed is a matter of dispute, which we do not regard as very material. The amendment was prepared and filed before the ruling on the motion to direct was made. Two questions are presented with respect to this matter: First, was defendant's evidence that he did not buy the property, but purchased the same for one Finn admissible under a general denial? And, second, if not admissible, was the court in error in denying the amendment to the answer pleading purchase by defendant as agent? We think the evidence was relevant under the general denial. Plaintiff, in order to recover, was bound to show that he sold the...