Cunningham v. Iowa-Illinois Gas & Elec. Co.

• Decision Date: 11 November 1952
• Docket Number: IOWA-ILLINOIS,No. 48127,48127
• Citation: 243 Iowa 1377,55 N.W.2d 552
• Parties: CUNNINGHAM v.GAS & ELECTRIC CO.
• Court: Iowa Supreme Court

Page 552

55 N.W.2d 552

243 Iowa 1377

CUNNINGHAM v. IOWA-ILLINOIS GAS & ELECTRIC CO.

No. 48127.

Supreme Court of Iowa.

Nov. 11, 1952.

Frank H. Lounsberry, of Nevada, and T. J. Mahoney and Robert E. Mahoney, of Boone, for appellant.

Gamble, Read, Howland, Gamble & Riepe, of Des Moines, for appellee.

WENNERSTRUM, Justice.

The original proceeding from which this appeal has developed involved the condemnation of an easement across the farm of the plaintiff. The defendant company sought the right to construct an electric power transmission line over plaintiff's land and to erect the necessary poles, structures and other equipment for the maintenance of the line. Sections 489.14, 489.16, 1946, 1950 Code, I.C.A.

The sheriff's condemnation jury awarded the plaintiff compensatory damages and the defendant company deposited the amount of the award with the Sheriff of Polk County. Sections 472.4, 472.14, 472.25, 1946, 1950 Code, I.C.A. The land owner appealed to the district court and sought an increased award of damages. Section 472.18, 1946, 1950 Code, I.C.A. Thereafter the company took possession of the easement condemned and constructed the transmission line across plaintiff's land. Section 472.25, 1946, 1950 Code, I.C.A. At a later time negotiations were entered into between the counsel representing the plaintiff and the defendant relative to a settlement of the litigation in controversy. It is claimed by the defendant company that pursuant to these negotiations a settlement was entered into by the attorney then representing the plaintiff and under his authorization. This claimed settlement was pleaded in a separate division of an answer filed by the defendant in the appeal in the condemnation matter. The particular issue pertaining to the claimed settlement was submitted to the trial court in a separate trial under the provisions of Rule 186, R.C.P. 58 I.C.A. This rule provides a separate trial of an issue of fact may be ordered by the trial court if it will be more convenient to settle a particular issue separately or if prejudice will be avoided. In the instant case the issue of fact pertained to the authority of plaintiff's original attorney to make a settlement and the sufficiency and extent of the claimed settlement. This issue was submitted to the trial court for decision without a jury. It held that a valid settlement had been entered into and that the offer and authorization made by the plaintiff and the acceptance by the company constituted a completed contract. It also held that by virtue of its holding that judgment for the original amount of the condemnation plus the increased amount agreed upon in the settlement should be entered against the defendant. The plaintiff had appealed from the ruling and judgment entered.

The appellee, Iowa-Illinois Gas and Electric Company, originally instituted proceedings to condemn a right or easement over and above a strip of land 100 feet wide through a portion of appellant's 140 acre farm. The sheriff's condemnation commissioners made an award of damages in the amount of $1,060. The appellant appealed to the district court and claimed damages in the total sum of $15,000. The attorney then representing him later had some negotiations relative to the settlement of the appeal in the condemnation matter with the counsel then representing the appellee. In March, 1951 appellant's and appellee's counsels had a conference pertaining to a possible settlement of the condemnation appeal and at which time appellee's counsel was asked by appellant's counsel what he would set as a top figure. It appears that appellee's counsel informed appellant's representative that he did not want to make a proposition unless the attorney had authority to settle, but finally did make a tentative offer of an amount over what had been awarded by the condemnation jury and which amount would include settlement of the damages to the property during the construction period. It is shown that the appellant was called to the office of his attorney and was informed of the tentative offer and at that time the appellant signed an authorization of settlement.

An exhibit which evidenced the claimed authority to settle was offered in evidence. This exhibit was not the original of the instrument but was a carbon copy. It is shown that the signed instrument was left originally with the appellant's attorney. This exhibit is as follows:

'March 23, 1951

'I, Fred Cunningham, hereby authorize T. H. Haynes, my attorney, to settle the case of Fred Cunningham vs Iowa-Illinois Gas & Electric Company and to release the said Iowa-Illinois Gas & Electric Company for damage done crops while erecting a power line for the settlement of $1700.00.

'________'

Original signed

Thereafter the appellant demanded the entire files from his attorney and took with him the signed copy of the authorization. It is shown that after the signing of the original instrument the appellant's counsel talked with the counsel then representing the appellee and informed him that he had written authority to settle for $1,700 and the appellee's counsel then stated that he would submit the offer to the company. Written releases were then prepared and were submitted to the attorney representing the appellant, and the appellant himself then came to his attorney's office. It is shown that at that time he indicated a dissatisfaction with the papers submitted and stated that the proposed settlement was not for a sufficient amount. It is also shown that appellee's counsel had previously insisted on the signature of the appellant on the releases submitted. Checks for the amount provided for in the contemplated settlement were obtained from the company. However, the appellant declined to personally execute the releases and has since declined to carry out the agreement of compromise. The original attorney for the appellant, T. H. Haynes, subsequently withdrew from the case. On the trial of the...