Fortgang Bros., Inc. v. Cowles, 49280

• Decision Date: 12 November 1957
• Docket Number: No. 49280,49280
• Citation: 249 Iowa 73,85 N.W.2d 916
• Parties: FORTGANG BROTHERS, Inc., Plaintiff-Appellee, v. Robert W. COWLES, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 916

85 N.W.2d 916

249 Iowa 73

FORTGANG BROTHERS, Inc., Plaintiff-Appellee, v. Robert W. COWLES, Defendant-Appellant.

No. 49280.

Supreme Court of Iowa.

Nov. 12, 1957.

C. F. Neylan, Elkader, for appellant.

E. L. Gross, Strawberry Point, for appellee.

LARSON, Justice.

This suit, in equity, alleging an oral agreement between plaintiff and defendant was transferred to law and tried to the court. Plaintiff's petition alleged under the agreement of about January 1, 1953, 'defendant was to purchase eggs from producers in and about Volga, Iowa and using funds therefor provided by plaintiff' and that 'as soon as a quantity of eggs had been accumulated a shipment thereof was to be made to plaintiff and a sight draft' was to be 'drawn on plaintiff by (defendant) for the cases of eggs shipped and the bank of account of plaintiff would thereby be reimbursed for the cost of the eggs shipped. That all of said eggs were to be candled according to law.' The pertinent part of the petition further stated that pursuant to the agreement plaintiff made available to defendant on January 1, 1953, an account in the Volga State Bank in the sum of $3,385.70, and that between the dates of January 1, 1953, and June 22, 1953, the defendant purchased 2,982 cases of eggs and paid for them from funds provided by plaintiff in the sum of $36,851.99; that during the same period only 2,907 cases of eggs were shipped to plaintiff and sight drafts of $36,172.20 drawn on plaintiff therefor; that the difference of $679.79 was unaccounted for and was due plaintiff. An audit was made on or about the 22nd day of June, 1953, disclosing the shortage. Defendant's answer affirmed the deposit of proceeds in the plaintiff's account in the amount of $36,172.20 but denies 'for want of information' the other material allegations of plaintiff's petition. There were other counts alleging other claims, as well as a defendant counterclaim, but they were not allowed and are not involved in this appeal.

The trial court found for the plaintiff and rendered judgment against the defendant for $679.79 with interest from June 22, 1953, and for costs, and denied all other claims. Defendant appealed. Errors relied upon for reversal were (1) that there was insufficient competent evidence of an agreement presented by plaintiff to prove its contention, and that defendant's motion for a directed verdict at the close of plaintiff's evidence should have been sustained, and (2) that the trial court erred in excluding from consideration defendant's testimony relative to his conversations with one George Fortgang, deceased, plaintiff's representative with whom the transaction had been negotiated.

The death of plaintiff representative George Fortgang a few weeks prior to the trial no doubt made proof of the oral agreement difficult for both parties, but not impossible.

I. It is true generally that the burden of pleading and proving an issue go together. The party who is required to plead an issue has the burden of proving that issue. In re Estate of Ewing, 234 Iowa 950, 955, 14 N.W.2d 633. The true test to determine where is the burden is to consider which party would be entitled to the verdict if no evidence were offered on either side. Veiths v. Hagge, 8 Iowa 163. A material fact may be pleaded either by express averment or by the averment of other facts from which the material fact is a necessary inference. Homire v. Rodgers, 74 Iowa 395, 37 N.W. 972. Clearly from the pleadings and the testimony in this case there was an agreement and obviously the disputed issue is as to certain terms, i.e. whether the eggs were to be purchased prior to candling or subsequent thereto. The basis of defendant's contention is that plaintiff failed to prove by any competent evidence that the agreement required him to purchase eggs after they were candled. The trial court did not agree, and in ruling upon defendant's motion to dismiss at the close of plaintiff's evidence, the court said:

'* * * the record shows that there was an agreement between the parties whereby the defendant purchased eggs and shipped them to the plaintiff. * * * I think there is enough evidence here before us to show by reason of the pleadings and the inference as to be drawn from the audit that there was an agreement between the parties, and that there was a shortage in the number of cases of eggs.' The ruling was correct.

Only reasonable certainty that such an agreement existed need be shown. All minor details need not be proven in the first instance. The degree of definiteness and certainty required has been variously stated. It is said that it must be possible to ascertain the full meaning with reasonable certainty. 12 Am.Jur., Contracts, § 64, p. 555. Also see Restatement of Contracts, Vol. I, § 32, p. 40.

Defendant's pleadings admitted an agreement and the only substantial difference in its terms is as to how the eggs were to be purchased from the producer. The method of payment, shipping, and compensation is not in dispute. To that extent the court was justified in considering the pleadings. Wigmore on Evidence, 3rd Ed., Vol. IV, § 1058. Also see California Law Review, Vol. 42 (1954), pp. 356-359.

The evidence produced by plaintiff consisted of the testimony of defendant's employee, Roland Burns, who worked at this station from November 1, 1952, to April 1, 1953, and who related the method of purchasing, handling and shipping eggs to plaintiff, and to other business transactions involving plaintiff's funds. He told how the eggs were purchased at the station and on the route from producing farmers, and were paid for by checks written on plaintiff's bank account. He explained how some of the eggs were candled before payment and some afterwards, but did not know whether adjustments in the latter cases were made later. Most of the eggs were graded and shipped to plaintiff in New York, but some were sold to local customers--'approximately six cases'--and cash received for them, part of which he kept for his services with defendant's approval.

Further evidence was furnished by Mr. Stebbins, the auditor who testified as to the quantity of eggs purchased and those shipped over that period and the sums of money furnished to keep the revolving bank account substantial. Such facts and circumstances, we think, gave rise to a clear inference that a definite agreement existed as alleged in plaintiff's petition and justified the court's action in refusing to direct a verdict for defendant. Considering this evidence most favorable to plaintiff, a prima facie agreement was established with reasonable certainty.

Plaintiff is...