D. H. Baldwin & Co. v. Moser

• Decision Date: 20 December 1909
• Citation: 123 N.W. 989
• Court: Iowa Supreme Court
• Parties: D. H. BALDWIN & CO. v. MOSER.

123 N.W. 989

D. H. BALDWIN & CO.

v.MOSER.

Supreme Court of Iowa.

Dec. 20, 1909.

Appeal from District Court, Carroll County; F. M. Powers, Judge.

Plaintiff, suing as a partnership, alleged the sale to defendant of four pianos, for which defendant was indebted, after the allowance of certain credits, in the sum of $540. Defendant alleged that the contract of sale was invalid for various reasons, and interposed a counterclaim for damages in the sum of $569. At the conclusion of the evidence introduced for both parties, on motion of plaintiff for a directed verdict, the court disallowed defendant's counterclaim, and directed a verdict for plaintiff in the sum of $367.36 upon which judgment was entered. Defendant appeals. Affirmed.B. I. Salinger, Douglas Rogers, and L. H. Salinger, for appellant.

George W. Bowen and Lee & Robb, for appellee.

McCLAIN, J.

The defendant substantially admitted the sale to him of the four pianos, for the purchase price of which plaintiff sues, but alleged that the contract of purchase was void because it involved and contemplated a course of business on the part of defendant which was contrary to public policy. The counterclaim was for damages suffered by defendant in partially performing his obligations under the contract, which he afterwards rescinded on the discovery that it had been procured by false and fraudulent representations of plaintiff.

1. The allegations of defendant's counterclaim, and the evidence introduced in support thereof, were sufficient to entitle the defendant to go to the jury, if there was sufficient allegation and evidence of false and fraudulent representations on the part of plaintiff inducing defendant to enter into such contract. The contract contemplated sales of pianos by plaintiff to defendant under an arrangement by which defendant was to conduct a so-called “word contest,” by which one piano was to be awarded as a prize to the winner of the contest, and certificates were to be given to other contestants for the prize, entitling them to credit in various specified sums, to be fixed by defendant on pianos which they should purchase from him. The false and fraudulent representations relied upon by defendant as made by plaintiff were that the proposed contest was honorable and successful, that by means of such a contest plaintiff had sold 25 pianos at the town of Walnut, and that defendant would sell at least 12 pianos if he would undertake to carry on the contest proposed. It is clear that the alleged representation as to the nature of the contest was merely an expression of an opinion; for the entire plan was laid before defendant, and he was in as good situation as plaintiff to say whether such a contest was honorable and was likely to be successful. The representation that defendant would sell at least 12 pianos, if he undertook to carry out the plan, was a representation as to the probable result of the contemplated scheme, which could not be relied upon by defendant as a false and fraudulent representation. But the alleged statement that plaintiff had sold 25 pianos in this manner at the town of Walnut was a representation of fact which, if falsely and fraudulently made with intent to deceive defendant, and relied upon by defendant to his prejudice, would entitle defendant to relief, if damage resulted to him from reliance upon such representation. This last proposition need not be more fully discussed, for appellee's counsel practically concedes the materiality of the representation. The question argued for appellee in this connection is whether there was any evidence that the representation was false to plaintiff's knowledge, and fraudulently made, and relied on by appellant to his damage.

There was no evidence of the falsity of the representation and of its fraudulent character, unless such evidence was furnished by the failure of appellee to have answers made to an interrogatory propounded in connection with appellant's counterclaim in these words: “Did you, prior to January 1, 1906, sell 25 of your pianos in Walnut, Iowa, by means of your word contest? If you answer ‘Yes,’ describe the pianos you sold, and the persons, and their residence, to whom they were sold.” It was averred in the counterclaim that the subject of this interrogatory was in the personal knowledge of Lucian Wulsin and George W. Armstrong, Jr., members of plaintiff partnership, and there was an affidavit of the defendant that he believed the subject of the interrogatory to be within the personal knowledge of such persons, and that their answers thereto, if truly made from such knowledge, would sustain the defense and claim of the defendant. The persons named made answer to this interrogatory in these words: “We nor neither of us are able to answer this interrogatory, and we have no personal knowledge of the matter inquired on”--and this answer was duly verified by them. On defendant's motion this answer, together with an answer to another interrogatory, was stricken from the files, for the reason that it was uncandid, not in good faith, and plainly an attempt to evade the statute requiring an answer thereto. Plaintiff, being permitted by the court to file substituted answers to said interrogatories, filed answers by one Williams, who stated under oath that Wulsin and Armstrong had no personal knowledge of the matters inquired about, but that he was, at the time of the transaction referred to, the general manager of the Chicago branch of plaintiff, from and through which the aforesaid business was transacted, and that from the books and records of plaintiff, and from the information thus obtained, he answered the interrogatories as fully as any one connected with the plaintiff could do, and that his answers to said interrogatories were just and true, and as complete as could be answered by any member of the plaintiff partnership, and as full, true, and complete as could be made by him. His answer to the interrogatory in question was that plaintiff had sold at least 21 pianos to a dealer at Walnut, giving his name, for which said dealer had paid the purchase price, but, as to whether or not said dealer sold said pianos by means of a word contest, or as to the persons to whom they were sold, or their residence, affiant had no knowledge. Subsequently, on defendant's motion, the answer to interrogatoriesgiven by Williams were stricken from the files. Thereupon plaintiff filed an amendment to its reply to the counterclaim, verified by one Huston, who stated that his knowledge of the facts averred in said reply was better than any knowledge thereof that plaintiff could have, and that he knew the facts and statements of said reply to be true, and in this amendment to reply it was stated that “in truth and in fact, prior to January 4,...