Ewaldt v. Farlon
| Decision Date | 06 December 1883 |
| Citation | 17 N.W. 487,62 Iowa 212 |
| Parties | EWALDT v. FARLON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Montgomery circuit court.
Action at law. There was a judgment upon a verdict for plaintiff. Defendant appeals. The facts of the case appear in the opinion.F. M. Davis and F. P. Greenlee, for appellants.
McPherson & Murphy and Junkin & Deemer, for appellee.
1. The petition is in three counts. The first seeks to recover for the wrongful conversion of a stock of goods, and notes and accounts. The second count alleges that plaintiff executed a bill of sale upon certain merchandise, and notes and accounts, upon an agreement that defendant and plaintiff should hold possession of the same together, and the proceeds thereof should be applied to the payment of plaintiff's debts; that defendant should advance money to pay off said debts, the bill of sale being security to him for such advances, and that defendant took exclusive possession of the goods and has converted them to his own use, and refuses to account therefor. The third count alleges that the agreement under which the bill of sale was made was abandoned and another entered into orally, which bound defendant to sell the stock of goods to one Warfield at the invoice cost price, and to receive in part payment 160 acres of land at $25 per acre, the balance in cash; the consideration of the sale to be received by plaintiff, who thereupon should reconvey, or cause to be reconveyed, to defendant 80 acres of land conveyed to plaintiff's wife under the first contract. It is alleged that defendant failed and refused to perform this contract, and plaintiff seeks to recover the damage he has sustained thereby.
The defendant denies the allegations of the petition, and avers that the goods were transferred to him under an absolute sale by plaintiff, which was witnessed by the bill of sale referred to in the petition. Defendant also sets up a counter-claim, based upon a promissory note and an account.
2. The plaintiff testified to the contract, as set up in the second count of the petition, and that it was agreed that the parties should jointly hold the goods, which they were to sell, and apply the proceeds thereof to the payment of plaintiff's debts, etc. The defendant moved to strike out this evidence, on the ground that the bill of sale must be regarded as embodying the contract of the parties, and it cannot be contradicted, altered, or explained. The evidence has no such effect. It simply shows how the proceeds of the property were to be applied. It was surely competent for the parties to contract in regard to conditions upon which defendant should hold the goods. He acquired an absolute title by the bill of sale. But he could bind himself to use the goods or appropriate the proceeds for the benefit of plaintiff. The evidence was not incompetent.
3. The defendant proposed to prove that the land deeded by defendant to plaintiff's wife had been attached in actions against plaintiff. The evidence was rightly excluded. Plaintiff seeks to recover damages resulting from the violation of defendant's contract; the present condition of the title to the land cuts no figure in the case. If it be incumbered by attachments that fact would not relieve defendant of...
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