Egy v. Winterset Motor Co.
| Decision Date | 10 February 1942 |
| Docket Number | 45815. |
| Citation | 2 N.W.2d 93,231 Iowa 680 |
| Parties | EGY v. WINTERSET MOTOR CO. |
| Court | Iowa Supreme Court |
Webster & Frederick, of Winterset, for appellant.
Phil R. Wilkinson, of Winterset, for appellee.
Plaintiff's petition asserts that on August 20, 1937, the defendant Winterset Motor Company, and plaintiff's husband and assignor entered into an oral contract whereby her husband agreed to purchase a new Ford sedan equipped with radio and heater for $883, the purchase price to be paid as follows $571 as the trade-in allowance on her husband's Ford sedan, and the difference of $312 to be paid by delivery of that amount of coal, her husband being in the retail coal business; that her husband's sedan was delivered to defendant as a payment of $571 on the purchase price and he offered to deliver the coal to complete the payment for said new car, but defendant refused to take the coal, refused to deliver the new car and refused to return the car that had been traded in or to pay the value thereof; that her husband was indebted to the Winterset Motor Company and, after deducting such indebtedness, the defendant owes her husband $294.74, claim for which sum has been assigned to her. Judgment was demanded for said sum with interest and costs.
Defendant's answer was a general denial of allegations not admitted. The terms of the oral contract were admitted except that defendant asserted that the balance of $312 was to be paid in cash, and defendant asserted that it had been ready, willing and able to perform its part of the contract but Egy refused to pay the balance of $312 in cash according to the terms of the contract. Defendant also disputed the amount of indebtedness owed by Egy, contended that the indebtedness was such that, deducting it from $571, left a balance of $279.44 instead of $294.74. Defendant also asserted a counterclaim of $186.78 for loss of profits by reason of Egy's refusal to perform the contract for the purchase of the Ford sedan and offered to confess judgment for the difference between the aforesaid sum of $279.44 and the amount of the counterclaim of $186.78, or $92.66.
The cause proceeded to trial to the court, a jury being waived. Plaintiff and her husband testified to the terms of the oral contract and that the difference of $312 was to be paid by the delivery of coal and not in cash. Such testimony was corroborated by one Cleo Manning, who testified that he was at Egy's home when the oral agreement was made and overheard the conversation and that the balance of the trade was to be taken out in coal. Defendant's only witness was its manager, who represented it in negotiating the oral contract. He testified that the difference was to be paid in cash at the time of the delivery of the new car. He also testified to the facts upon which the counterclaim was based.
The testimony was closed on the afternoon of May 14, 1940. On the following day the defendant filed a verified motion to reopen the case to introduce additional testimony, asserting that it expected to prove by competent testimony that on August 20, 1937, (the date that the negotiations took place between plaintiff's husband and defendant's manager) the witness Manning was employed in a cement quarry from seven o'clock in the morning until three o'clock in the afternoon; that defendant could not with reasonable diligence have ascertained that this testimony was material because it had no means of knowing that Manning would be called as a witness or what his testimony would be. The motion to reopen the case was overruled.
On August 16, 1940, the judge filed in the office of the clerk a written ruling, finding that the plaintiff was entitled to judgment in the sum of $279.44 and further that judgment entry might be prepared and, after submission to counsel for defendant, be forwarded to the judge for signature. Said ruling was not spread of record but was simply filed with the clerk. Thereafter, on August 28, 1940 a judgment was entered against the defendant in favor of the plaintiff in the sum of $279.44 with interest and costs.
On August 31, 1940, defendant filed a motion for new trial, asserting that the court erred in overruling the motion to reopen the case; that defendant had discovered new evidence regarding the cost of coal to plaintiff's husband, which tended to refute the testimony of her husband as to the amount of coal which he undertook to deliver in payment of the balance of the contract price and also evidence of admissions by plaintiff and the witness Manning which tended to discredit their testimony; that the court's decision is contrary to the evidence and the written receipt which plaintiff received when her husband's car was delivered to the defendant. On February 7, 1941, the motion for new trial was overruled, the court holding it was not filed in time. The court also held that the newly discovered evidence was merely offered for the purpose of impeaching some of the witnesses, had no probative value and was not of such nature as is contemplated by the statute as grounds for the granting of a new trial. On May 26, 1941, defendant appealed.
At the outset we are confronted with appellee's motion to dismiss the appeal which is predicated upon the fact that, the notice of appeal having been served and filed more than four months after the entry of judgment and more than 60 days after the overruling of the motion for new trial, the only question presented by the appeal is the ruling on the motion for new trial. See Pride v. Inter-State B. M. Acc. Ass'n, 207 Iowa 167, 170, 216 N.W. 62, 62 A.L.R. 31; Lotz v. United Food Markets, 225 Iowa 1397, 1401, 283 N.W. 99. Appellee contends that the motion for new trial was not filed in time, there was nothing to pass upon below and there is no question presented for our determination here.
Appellee relies upon Section 11551 of the Code 1939, which provides, "The application must be made within five days after the verdict, report, or decision is rendered, unless for good cause the court extends the time, except for the cause of newly discovered evidence," and Section 11581, which provides, "The provisions of this chapter relative to juries are intended to be applied to the court when acting as a jury on the trial of a cause, so far as they are applicable and not incompatible with other provisions herein contained."
It is appellee's contention that the ruling which the court filed on August 16, 1940, corresponds to the verdict of a jury and is the "verdict, report, or decision" within five days of which the motion for new trial must be filed to comply with Section 11551. This was the position taken by the court. Appellant contends that the motion for new trial was not required to be filed until the judgment was entered and, having been filed within five days thereafter, the motion was timely filed and the court erred in holding otherwise.
Appellee relies primarily upon our decision in the case of Selby v. McDonald, 219 Iowa 823, 259 N.W. 485. In that case, the action was at law, tried to a jury. At the conclusion of the evidence, the plaintiff made a motion for a directed verdict in his favor which was sustained. A verdict was returned by direction of the court, was signed by one of its members as foreman, and was entered upon the journal on January 20, 1916. Thereafter, on April 18, 1930 (fourteen years later), a judgment was entered for the amount specified in the verdict with interest from January 20, 1916, and costs. On April 22, 1940, the defendant filed a motion for new trial which was sustained. Thereafter, the plaintiff filed a motion to set aside the order granting a new trial, on the ground that the court was without jurisdiction to grant the same. This motion was sustained and the defendant appealed from such ruling. This court affirmed the case holding, in accord with our decision in Bottineau Land & Loan Co. v. Hintze, 150 Iowa 646, 125 N.W. 842, 843, that a directed verdict returned by the jury is a "verdict of a jury" within the contemplation of Section 11551 of the Code and, accordingly, the motion for new trial could not be filed fourteen years later. We are abidingly satisfied with the correctness of that decision, but we are unable to see that it is in any way applicable or controlling here.
We are unable to find any decision squarely in point, heretofore decided by this court. However, the decisions relied upon by appellant, to wit: Hess v. Hess, 184 Iowa 796, 169 N.W. 111, and Rance v. Gaddis, 226 Iowa 531, 284 N.W. 468, appear to be more analogous than the decisions relied upon by appellee.
In the case of Hess v. Hess, supra, the proceedings were in probate tried to the court in October, 1916. On November 3, 1916, the court made the following calendar entry: "Court finds for the plaintiff, Mary Hess, and that she was the lawful wife of J. O. Hess, and is his widow (see decree), to all of which defendant administrator excepts." Judgment was not entered...
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