Deitrick v. Sinnott

• Decision Date: 19 October 1920
• Docket Number: No. 33144.,33144.
• Citation: 179 N.W. 424,189 Iowa 1002
• Parties: DEITRICK v. SINNOTT ET AL.
• Court: Iowa Supreme Court

189 Iowa 1002

179 N.W. 424

DEITRICK

v.SINNOTT ET AL.

No. 33144.

Supreme Court of Iowa.

Oct. 19, 1920.

Appeal from District Court, Clarke County; P. C. Winter, Judge.

Action in equity for an accounting. Decree dismissing plaintiff's petition, and he appeals. Affirmed.O. M. Slaymaker, of Osceola, for appellant.

McGinnis & McGinnis, of Leon, for appellees.

STEVENS, J.

The plaintiff and the defendants, P. W. Sinnott and H. A. Canney, reside at Osceola, Iowa, where they are each engaged in buying and shipping stock. Plaintiff and Sinnott occasionally buy and ship in partnership, as do also the defendants. The controversy involved in this case grows out of the purchase, in July, 1918, and sale of three carloads of cattle on the Chicago market. They were all purchased of one Judd, and shipped in two lots of one and two carloads, respectively. The first carload was purchased and paid for by plaintiff on July 30, 1918, by check upon the Simmons & Co. Bank of Osceola; the other two loads were purchased by Sinnott and paid for by check on the same bank, as follows: $100 on July 30th, and $4,966 on August 2d. Defendant sold Sinnott a one-half interest in the first carload, and purchased a one-half interest of him in the last lot. All of the cattle were shipped in the name of Sinnott & Deitrick to the Iowa Live Stock Commission Company, Chicago, Ill. Canney purchased a one-half interest of Sinnott, so that the cattle were owned one half by plaintiff, and the other half by the defendants jointly. The first carload was sold at a net profit of $124.49, but the last lot was sold at a loss of $1,413. The last two loads arrived at the stockyards in Chicago on Saturday night, but were sold the following Tuesday. The Sunday intervening is referred to by the witnesses as the day of the “hot winds.” The proceeds of the sale of both shipments were forwarded to the bank at Osceola by the commission company and credited to Sinnott's account. The sales account, was however, made out to Sinnott & Deitrick.

Plaintiff brings this action for an accounting, and asks judgment for the amount found to be due him. He alleged in his petition that on Monday afternoon, and while the cattle were in the stockyards at Chicago, he orally sold his interest therein to the defendants, at an agreed price per hundred. Defendants filed separate answers denying the allegations of plaintiff's petition, but admitting the purchase and shipment of the cattle, and tendering to him the amount claimed by them to be due the plaintiff. The court found that no part of the purchase price was paid, and that no delivery of the cattle was made to Canney, and therefore the attempted sale by plaintiff falls within the statute of frauds.

The defendant Canney, with whom it is claimed the oral contract of purchase was made, called as a witness in his own behalf, admitted that he had a conversation with plaintiff at the time claimed, during which plaintiff said that he believed he had too many cattle on the market that day; that defendant then, in a spirit of banter or fun, proposed to buy plaintiff's interest in the cattle, and that after some dickering as to price defendant told him that he would take them; but that he did not intend at the time to buy an interest in the cattle, and that plaintiff knew he did not. As indicated, no general partnership then existed between plaintiff and Sinnott or between Sinnott and Canney. All partnership transactions between them involved only occasional specific purchases and sales of stock.

[1] It is conceded by the defendants that, after the cattle in question were purchased by plaintiff and Sinnott, Canney acquired a share in the half interest of Sinnott, but he was in no sense a partner with plaintiff in the transaction. It is further conceded that no money was paid to plaintiff for his interest in the cattle, and that there was no actual delivery thereof to Canney, or to Sinnott & Canney. Appellant, however, contends that the cattle were, at the time of the alleged sale, in the possession of defendants; that full dominion and control of the property was turned over to, and assumed by, them; that they received and appropriated the proceeds of the sale to their own use; and that, therefore, the statute was complied with. Many decisions from other jurisdictions holding that, where personal property is in possession of the buyer at the time of the sale, it is unnecessary for the owner to resume possession thereof in order that actual delivery may be made, are cited. Wilson v. Hotchkiss, 171 Cal. 617, 154 Pac. 1, L. R. A. 1916F, 389, Ann. Cas. 1917B, 570; Godkin v. Weber, 154 Mich. 207, 114 N. W. 924, 117 N. W. 628, 20 L. R. A. (N. S.) 498; Smith v. Bryan, 5 Md. 141, 59 Am. Dec. 104;Reinhart v. Gregg, 8 Wash. 191, 35 Pac. 1075;Snider v. Thrall, 56 Wis. 674, 14 N. W. 814. These cases, however, hold that, where the property is in the possession of the buyer, his conduct touching the same must thereafter be inconsistent with his previous possession as bailee or agent of the seller. Charlotte, etc., R. Co. v. Burwell, 56 Fla. 217, 48 South. 213;Young v. Ingalsbe, 208 N. Y. 503, 102 N. E. 590; Wilson v. Hotchkiss, supra; Silkman Lbr. Co. v. Hunholz, 132 Wis. 610, 112 N. W. 1081, 11 L. R. A. (N. S.) 1186, 122 Am. St. Rep. 1008, 13 Ann. Cas. 713. Evidence showing acts of dominion and control thereover by the purchaser inconsistent with the facts upon which his prior possession was based would be sufficient for that purpose. Wilson v. Hotchkiss, supra.

[2] Manifestly, actual delivery of the cattle by plaintiff to Canney, or of his interest therein, could not have been made at the time of the transaction. The parties were in Osceola, and the cattle were in the stockyards at Chicago, consigned to the Iowa Live Stock Commission Company for sale. Mere words between them at the time of the transaction, and which are a part thereof, at the time of the alleged sale, could not constitute, or effect, a delivery of the property. Silkman Lbr. Co. v. Hunholz, supra; Godkin v. Weber, supra; Smith & Son v. Bloom, 159 Iowa, 592, 141 N. W. 32.

The evidence does not sustain appellant's claim that the cattle were at the time of the alleged sale in the possession of the buyer. The evidence is not quite clear as to the extent of the partnership relations between the defendants generally, but they apparently had an understanding that they would share profits and losses in purchases agreed upon, or in sales of stock bought by Canney and approved by Sinnott. Sinnott testified that he knew nothing about the transaction between plaintiff and his codefendant until after the sale of the cattle and the receipt by him of the proceeds arising therefrom. In this he is not contradicted. The cattle at the time of the transaction, as stated, were in the stockyards at Chicago for sale by the agent of the shipper, who was Sinnott & Deitrick. No affirmative act, which could upon any theory amount to a delivery, is shown in the evidence. It is true that we held in Smith & Son v. Bloom, supra, which involved a controversy over a quantity of lambs picked out by the defendant, weighed and placed in a separate pen, with the knowledge of Bloom, over which plaintiff had no control, that there was a delivery, but that differs materially from the case at bar. In this case there was no surrender of possession, dominion, or control over the cattle to defendant.

But it is further contended by counsel for appellant that the defendants received and appropriated the proceeds of the sale of the cattle, thereby accepting them, and that delivery may be inferred therefrom. No relationship between the receipt and deposit of the proceeds of the sale in the bank by Sinnott to his own credit and the transaction between plaintiff and Canney was disclosed.

[3] On July 30th the defendant Sinnott wrote a letter, or card, to the Iowa Live Stock Commission Company, at Chicago, stating that he was shipping one of three carloads of cattle, and that same were billed out in the name of Sinnott & Deitrick, and requesting that the proceeds of the sale be forwarded to the Simmons & Co. bank. Explaining his reasons for writing this letter, Sinnott testified as follows:

“As to how I came to write that, Mr. Deitrick suggested, when we were coming home, at the time we were talking about Mr. Canney going in, that he had never shipped any cattle to this company, and he says, ‘You had better write to them and tell them to send the money to Simmons & Co.’ Exhibit C, which you hand to me, is the card which I wrote. It seems to me that we had the returns for the first load when that card was written. I had been shipping other cattle to them before that.”

As will be observed, this letter was written before the last shipment of cattle was made. Evidently the commission company made remittance to the bank in compliance with the request contained in the letter referred to. A letter from the commission company explaining how the remittance came to be made to Sinnott was introduced in...