Durant Elevator Co. v. S. J. Hoffman and Sons

• Decision Date: 20 September 1966
• Docket Number: No. 52119,52119
• Citation: 259 Iowa 500,145 N.W.2d 25
• Court: Iowa Supreme Court
• Parties: DURANT ELEVATOR CO., Inc., and Gilbert D. Jacobs, Appellants, v. S. J. HOFFMAN & SONS, a partnership, S. J. Hoffman, Kenneth S. Hoffman and Glenn W. Yoergler, Appellees.

Page 25

145 N.W.2d 25

259 Iowa 500

DURANT ELEVATOR CO., Inc., and Gilbert D. Jacobs, Appellants, v. S. J. HOFFMAN & SONS, a partnership, S. J. Hoffman, Kenneth S. Hoffman and Glenn W. Yoergler, Appellees.

No. 52119.

Supreme Court of Iowa.

Sept. 20, 1966.

William L. Meardon, Ansel Chapman, and Robert N. Downer, Iowa City, for appellants.

A. Wayne Eckhardt, Muscatine, Betty, Neuman, Heninger & McMahon, Richard M. McMahon, and Thomas F. Daley, Jr., Davenport, for appellees.

STUART, Justice.

Plaintiffs brought this action to recover damages for breach of warranty and negligent construction of 4 silos and for corn spoilage resulting therefrom. The law action was tried to the court who found for defendants. Plaintiffs have appealed alleging errors hereinafter discussed.

On March 27, 1959 plaintiff corporation, through its manager, Mr. Jacobs, the other plaintiff, contracted with defendants for the construction of 4 cement stave silos 24 feet in diameter and 70 feet high to store both wet and dry corn. After their completion in August 1959, plaintiff corporation began filling them with dry corn under the Commodity Credit program. In June 1960, a government inspector found the corn in 3 silos 'out of condition' and ordered 2500 bushels shipped out of each. At a subsequent inspection in January 1961, the corn in the silos was found to be in such bad condition the entire contents was ordered shipped out. Plaintiff corporation claimed the spoilage was due to outside moisture penetrating the walls and top of the silo. Defendants claimed the loss was due to poor warehouse techniques on the part of the corporation's employees. The trial court found defendants were not liable in negligence or breach of warranty and that the loss was due to poor warehousing. In any event, 'the evidence as to damage to the corn shown by this record is so confusing and conflicting that it is impossible for the court to make even a reasonable estimate as to the amount of damages'.

I. At the time of the construction of the silos and the alleged damages, Mr. Jacobs owned 50% Of the corporation stock. In July 1961, he sold his stock to the other owners. At this time he purchased the silos in question from the corporation for the full contract price paid defendants. The corporation is not claiming damages to the silos, but only loss for the grain stored therein. At the start of the trial, defendants moved that Jacobs be removed as a party for the reason that the cause of action arose while the silos were owned by the corporation and that a subsequent purchase did not give him a cause of action without an assignment of the chose in action, which was not alleged.

Jacobs then asked leave to amend to allege an oral assignment. Objection was made that an oral assignment was not permissible under the statute of frauds. The trial court indicated this was the law but reserved ruling until they 'were able or unable' to produce evidence of a written assignment. Authority was presented that held an oral assignment was permissible. Seymour v. Aultman, 109 Iowa 297, 298--299, 80 N.W. 401, 402; Estes v. Chicago, B. & Q. Railway, 159 Iowa 666, 669, 141 N.W. 49, 50. At the close of plaintiffs' evidence, the trial court ruled the amendment was not timely and refused to permit it. This ruling is alleged to be error.

The trial court has broad discretion in permitting or denying an amendment to the pleadings under R.C.P. 88. Unless there is an abuse of discretion, we will not interfere, although we encourage the trial courts to permit the amendments. Robinson v. Home Fire & Marine Ins. Co., 244 Iowa 1084, 1089--1090, 59 N.W.2d 776, 779, 780; Russell v. Chicago, Rock Island & Pacific Rr. Co., 251 Iowa 839, 844, 102 N.W.2d 881, 885; Mundy v. Olds, 254 Iowa 1095, 1101, 120 N.W.2d 469, 473.

Plaintiff Jacobs recognizes this rule but claims the discretion was abused in the instant case. The petition was filed June 19, 1962. Present counsel entered the case May 29, 1964. Trial commenced August 6, 1964. Jacobs had severed his relationship with the corporation about 1 year prior to the filing of the lawsuit and the lawsuit had been pending over 2 years prior to trial. The court was within its discretion in refusing to permit the amendment.

In any event there was no prejudice resulting in view of trial court's findings that the plaintiffs had failed to prove either negligence or breach of warranty as alleged. This finding is binding on us if there is substantial evidence to support it in the record. Authorities need not be cited. R.C.P. 344(f)1. Plaintiffs do not claim there is no support for such finding.

II. Plaintiffs claim the trial court erred in excluding certain testimony of expert witnesses.

Merrill Garden was not permitted to testify as to the weathertightness of the structures. He was, however, permitted to express an opinion based upon his personal inspection and certain assumptions 'as to the suitability of these silos for the storage of corn'. He responded: 'Would be my opinion that the corn would spoil in this structure, in these structures.

'Q. Mr. Garden, in specific response to the question, would the structure be suitable for the storage of corn, under the assumptions that I gave you? A. No.'

We are unable to see how any prejudice resulted to plaintiffs from the court's ruling on the question of weathertightness. Weathertightness was important only in determining whether these structures were suitable for the storage of corn. The expert was permitted to...