Donahoe v. Casson's Market, Inc.
| Decision Date | 26 June 1957 |
| Docket Number | No. 49121,49121 |
| Citation | 84 N.W.2d 29,248 Iowa 1106 |
| Parties | E. J. DONAHOE, d/b/a Donahoe Investment Co., Plaintiff-Appellant, v. CASSON'S MARKET, Inc.; Alphonsus Bisignano, Catherine Dwyer Bisignano, Trustee for Judith Ann Bisignano Trust, Trustee for James Louis Bisignano Trust, Trustee for Joseph Alphonsus Bisignano Trust, Trustee for Mary Catherine Bisignano Trust, Trustee for John Michele Bisignano Trust, Defendants-Appellees. |
| Court | Iowa Supreme Court |
John Connolly, III, Bernard J. Connolly, Des Moines, for appellant.
Ray Rosenberg, Des Moines, for appellee.
This is a law action for the recovery of a real estate broker's commission. The petition is in two counts: Count I alleges an express contract with defendants. Count II seeks recovery on a quantum meruit theory. Trial was to the Court without a jury. The trial Court dismissed both counts and from judgment thereon Plaintiff appeals.
Two alleged errors are set forth by Appellant. (1) The findings of fact and conclusions of law made by the trial court are not supported by the testimony. (2) The Court failed to make a finding upon Count II of Appellants' petition.
I. As to the second alleged error. The trial Court in its Findings of Facts makes no reference to there being two Counts and apparently considered them together. In its Conclusions of Law, paragraph 5, the Court held: 'That the Plaintiff is not entitled to recover any commission from any of the Defendants, either for (a) an express agreement of employment, or (b) upon implied agreement to pay a reasonable fee.' (Italics ours.) No request for a separate or more detailed finding was made by Plaintiff as he is authorized to do under 58 I.C.A. Rule 179, Rules of Civil Procedure. It appears clear to us that by the Conclusions of Law, above quoted, the Court necessarily found the facts to be adverse to Appellants' contention. There is no merit in this assigned error.
II. Assigned error No. 1 is that the Findings of Fact and Conclusions of Law as announced by the Court are not supported by, and are contrary to the evidence. We assume such a contention includes both Counts of the petition.
As before stated, this is a law action tried to the Court without a jury. The rule is well established that in such a situation, on appeal the findings of fact have the force and effect of a jury verdict, and if there appears to be substantial evidence upon which a jury might have found as did the trial court, such finding will not be disturbed. Magness v. Modern Woodmen of America, 146 Iowa 1, 123 N.W. 169; Bagley v. Petermeier, 233 Iowa 505, 10 N.W.2d 1; Cleary v. Wolin, 244 Iowa 956, 58 N.W.2d 830; Staley v. Fazel Bros. Co., 247 Iowa 644, 75 N.W.2d 253.
The Casson's Market, Inc., owned the quarter block of real estate that is located just south of the Iowa-Des Moines National Bank & Trust Co., in Des Moines. Alphonsus Bisignano (commonly called 'Babe') was principal stock holder and president. Since June, 1951, Babe and Mr. Aurand, President of the Bank and also President of the Iowa-Des Moines National Bank Building Corporation, had been discussing sale or rental of the Casson property to the Bank. In 1952, John Donahoe, real estate salesman for Plaintiff, approached Babe relative to listing the property with him. It is agreed by all that Babe refused to sign a written listing. Donahoe says Babe told him to see what he could do about finding a tenant and agreed to pay a commission if one was found.
Donahoe contacted Mr. Aurand regarding the property. The record is very clear that he and Aurand discussed a sub-tenant if the Bank leased the property and that Donahoe devoted considerable time and effort in trying to locate one. It also appears that Donahoe had many conversations with Babe about leases,...
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...no motion under rule 179(b), Rules of Civil Procedure, to enlarge or amend the findings. See in this connection Donahoe v. Casson's Market, 248 Iowa 1106, 1107, 84 N.W.2d 29, 30. VI. Error is assigned in allowing interest from October 10, 1959, rather than from May 12, 1961, date of the jud......
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