D. H. Baldwin & Co. v. Moser
| Decision Date | 17 May 1912 |
| Court | Iowa Supreme Court |
| Parties | D. H. BALDWIN & CO. v. MOSER. |
OPINION TEXT STARTS HERE
Appeal from District Court, Carroll County; F. M. Powers, Judge.
Action at law to recover the price of four pianos alleged to have been sold the defendant. There was a directed verdict and judgment for the plaintiff, and defendant appeals. Reversed and remanded.
For former opinion, see 123 N. W. 989.B. I. Salinger, of Carroll, Douglas Rogers, of Manning, and L. H. Salinger, of Carroll, for appellant.
George W. Bowen and Lee & Robb, all of Carroll, for appellee.
The plaintiff sues to recover the price of four pianos alleged to have been sold the defendant. The defendant admits a purchase of the four pianos, but alleges payment therefor, and denies all allegations of the petition not admitted. He further pleads that the plaintiff by false and fraudulent representations induced him to enter a so-called “word contest” devised by the plaintiff to stimulate the sale of its pianos; that plaintiff, in reliance upon said representations, and in furtherance of said contest, did receive from defendant 13 pianos and attempt to carry out the scheme in accordance with the plaintiff's plan; and that after disposing of 4 of said instruments he discovered that the so-called “contest” was a mere pretense by the means of which a fraud was to be perpetrated upon the purchasing public, and thereupon abandoned its further prosecution and returned the remaining 9 pianos to the plaintiff, and now has no property of any kind belonging to the plaintiff left in his hands. He further alleges that the agreement upon which plaintiff relies is against public policy and void. By way of counterclaim the defendant restates the matters already pleaded in his answer, and further alleges that having been induced to enter said “word contest” scheme through the fraud and false representation of the plaintiff, and before he became aware of its true character, he expended a large amount of money for freight, advertising, and other reasonable and necessary expenses amounting to $339.27, which has been wholly lost, and he demands a recovery thereof from plaintiff in this action. For further counterclaim he alleges that plaintiff is indebted to him in the sum of $205 as commissions for piano sales made under a written agreement between the parties, which sum is due and unpaid. These counterclaims are denied by the plaintiff.
[1] I. Among the alleged false representations by which plaintiff induced defendant to enter into the word contest and to give an order for the pianos was one to the effect that such contests held under plaintiff's direction had been uniformly successful, and that one recently held at the town of Walnut had brought about the sale of not less than 25 instruments. Upon the trial defendant, having shown that such representation had in fact been made by plaintiff's agent in persuading defendant to enter into the scheme, offered evidence in support of the defense to show the falsity of the statement; but the court upon plaintiff's objection excluded it as incompetent, immaterial, and irrelevant. This ruling is complained of by the appellant, and we think the exception must be sustained. Without taking time to consider or decide whether the offered showing would be admissible as tending to support the defensive allegations of the answer, we think there can be no doubt of its competent and material character as evidence in support of the counterclaim. The representation was material in character. It was not a mere statement of opinion, but of an alleged existing fact, which, if true, tended to assure the defendant of the practical workings of the proposed contest and its value as a means of advertising the business and increasing the trade. If these representations were false, and defendant was thereby induced to enter into the arrangement and invest his time, labor, and money in a losing enterprise to his material injury, ...
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