Forsberg v. Koss Const. Co.

• Decision Date: 09 January 1934
• Docket Number: No. 42206.,42206.
• Parties: FORSBERG v. KOSS CONST. CO. et al.
• Court: Iowa Supreme Court

218 Iowa 818

252 N.W. 258

FORSBERG

v.KOSS CONST. CO. et al.

No. 42206.

Supreme Court of Iowa.

Jan. 9, 1934.

Appeal from District Court, Marion County; Norman R. Hays, Judge.

The Koss Construction Company agreed to construct three paving projects on the primary roads in Marion county. It purchased gravel delivered to its stock pile from appellee Wilson. Wilson contracted with appellee Weaver to furnish and deliver a part of the gravel. Weaver hired Hixon to haul such gravel. The claims in controversy are made against the retained percentages withheld from the Koss Construction Company pursuant to the provisions of chapter 452 of the Code, and are for labor, gasoline, and oils furnished to Hixon and used by him in hauling the gravel. The trial court refused to establish and allow the claims against such retained percentages. Appellee Standard Oil Company asked judgment against Weaver on an oral contract to pay for gasoline delivered to Hixon. The trial court also denied this relief.

Affirmed.

Thomas J. Bray, of Oskaloosa, for appellants Melvin Forsberg and Arthur Lange.

Carl C. Hendrickson, of Cedar Rapids, and Thomas J. Bray, of Oskaloosa, for appellant Cities Service Oil Co.

Parrish, Cohen, Guthrie & Watters, of Des Moines, for appellant Standard Oil Co.

Johnson & Teter, of Knoxville, for appellants William Sarver, Geryll Lash, J. A. Ellis, H. Burton, Lewis Morris, and Lyle Washburn.

Comfort & Comfort, of Des Moines, for appellees Koss Const. Co., C. M. Wilson, and M. O. Weaver.

C. E. Walters, of Des Moines, for appellees Iowa State Highway Commission, Thomas A. Way, Carl C. Riepe, T. J. O'Donnell, L. T. Quirk, and W. D. Archie.

C. L. Hixon, pro se.

CLAUSSEN, Justice.

Relatively early in the year 1932 the Koss Construction Company entered into contracts with the state highway commission for the construction of three stretches of pavement on the primary roads in Marion county, Iowa. The Koss Construction Company entered into a contract with one E. M. Wilson, of Harvey, Iowa, by which Wilson agreed to furnish and deliver the sand and aggregate necessary for the construction of the several jobs, in stock piles at two “set ups” of the Koss Construction Company, at an agreed price per ton. Wilson entered into an agreement with one M. O. Weaver by which Weaver agreed to furnish a part of the sand and gravel for the construction of the paving jobs at an agreed price slightly lower than the prices agreed upon by Wilson and the Koss Construction Company. Weaver hired one C. L. Hixon to haul sand and gravel to the stock piles. Hixonhired plaintiff and certain of the defendants in his hauling operations and purchased gasoline and oil from the Standard Oil Company and Cities Service Oil Company for the operation of his trucks.

The record does not indicate the source from which the sand and gravel was obtained by either Weaver or Wilson, nor does it indicate from where it was hauled by Hixon. No particular significance is attached to this, and it is simply stated as the fact. The labor and gasoline and oils involved herein were admittedly used in the hauling of the sand and gravel by Hixon to the stock piles at the “set ups” of the Koss Construction Company, from which the paving jobs were constructed.

In conformity with the statutes, the state highway commission retained a percentage of the pay due the Koss Construction Company, and such retained sum is in excess of the demands involved in this suit.

Claims for such labor and gasoline and oils were filed by the laborers and oil companies in strict conformity with law, and this suit has for its object the enforcement of such claims against the retained percentages. One other matter is involved in the suit which will be noticed in the first division of the opinion.

[1][2] I. Hixon was procuring gasoline from the Standard Oil Company. He was not paying invoices promptly. In August of the year 1932 the company refused further credit to Hixon. On August 19, a telephone conversation was had between Mr. Weaver and a credit man of the company. In this conversation it was agreed that the company should furnish Hixon gasoline and oils in the future which were to be charged to Weaver and paid for by Weaver. Concerning the gasoline and oil furnished from that time on there is no dispute. Such items have been paid, but a serious dispute exists concerning what was said in relation to gasoline, etc., furnished by the company to Hixon prior to that date. The representative of the company testified that Weaver agreed to pay the balance due on such items. Weaver testifies that he agreed to pay such balance to the extent of the money due from him to Hixon. In this suit the company asks judgment against Weaver for the balance due on the Hixon account. The trial court determined the issues against the company. We must therefore determine whether Weaver agreed to pay the balance due the company on the Hixon account. It has been noted that the representative of the company testified that Weaver agreed to pay the balance of the account and that Weaver testified that he agreed to pay the balance due from him to Hixon on the account. The burden of proving the contract rests upon the company. The testimony of the participants in the conversation leaves the proof in equipoise, but the company insists that certain letters written to it and by it turn the balance in its favor. We cannot agree with the company in this contention. The letters referred to are as consistent with Mr. Weaver's version as they are with the company's version of the conversation.

The company contends that it is entitled to judgment against Weaver in any event for the balance which was due from Weaver to Hixon.

The Standard Oil Company pleaded:

“That this cross-petitioner sold and delivered to the defendant, C. L. Hixon, at the request of the said C. L. Hixon, gasoline and oils which were used in the construction of said projects in the sum of $1606.71, which account is due and unpaid and the property of this cross-petitioner. * * *

That the materials sold by this cross-petitioner to the defendant, C. L. Hixon, were sold upon the credit of C. L. Hixon at the beginning of the said construction program.

That on or about the 18th day of August, 1932, this cross-petitioner notified the defendant, C. L. Hixon and the defendant, M. O. Weaver, that it would not furnish any more materials to the defendant, C. L. Hixon until the back account was paid. That the defendant, M. L. Weaver, orally agreed at that time that if they would continue to sell material to the defendant, C. L. Hixon that he, M. O. Weaver, would pay the back account and all future accounts sold by the cross-petitioner to the defendant, C. L. Hixon and used in connection with these projects. That in pursuance thereto, this cross-petitioner continued to furnish to the said C. L. Hixon goods, wares and merchandise, but that the said defendant, M. O. Weaver, has failed and refused to pay the account of this cross-petitioner.”

Weaver testified that, in the telephone conversation with the company's representative, he agreed to pay the balance due from him to Hixon on Hixon's past-due account to the company. All of the parties, other than the oil company, stipulated that, if named individuals, who were in a position to know the facts, would testify, their testimony would be that nothing was due from Weaver to Hixon. But, on account of the fact that the company is not a party to this stipulation, it cannot be considered in the determination of the company's rights. The company introduced in evidence a letter which reads as follows:

“Iowa Falls, Iowa, Nov. 4, 1932.

Standard Oil Co. Des Moines, Iowa.

Gentlemen: Enclosed please find check for $1,404.79 covering the C. L. Hixon account as charged to me. For August and September.

Regarding the balance of the C. L. Hixon account of $1,749.73. As his account now stands with me he has a credit of nearly $1,000.00, however this amount is subject to change pending corrections and final settlement.

Very truly yours,

M. O. Weaver,

By H. F. Chance.”

The company now contends that under Weaver's testimony and the letter above referred to it is entitled to judgment against Weaver for $1,000. Conceding, but not deciding, that the letter is sufficient to put Weaver in a position where he had the burden of going on with the evidence and that in the absence of other evidence we would be warranted in finding that $1,000 was due from Weaver to Hixon, we cannot sustain the contention of the company that it is entitled to judgment against Weaver for $1,000. The agreement which is pleaded is materially different from the one upon which it now relies. The issue tendered by the pleading was in relation to a contract to pay the entire Hixon account with the company. It suggests nothing in relation to the condition of the account between Hixon and Weaver. If the issue pleaded had involved the condition of the account between Hixon and Weaver, it might well be that Weaver would have taken up the burden of going on with the evidence and established that nothing was due from him to Hixon. But, upon the issue of an agreement on Weaver's part to pay the entire Hixon account, it was entirely immaterial whether Weaver did or did not owe Hixon any balance, for the pleaded promise to pay was in no wise contingent upon the existence of a balance due Hixon. In the condition of the pleadings, there was no occasion for Weaver to go on with the evidence as to whether anything was due from him to Hixon. In Smith, Landeryou & Co. et al. v. Hollingsworth et al., 251 N. W. 749, decided at the December, 1933, full bench session of this court, Mr. Justice Donegan said of a similar situation: “Unless this question was raised by the pleadings and was before the trial court, it cannot be considered here, because the appellee should not be subjected to a liability concerning which there was no issue in the trial court and in regard to which there was no reason...