Garretson v. Bitzer

• Decision Date: 15 December 1881
• Citation: 10 N.W. 818,57 Iowa 469
• Parties: GARRETSON v. BITZER.
• Court: Iowa Supreme Court

57 Iowa 469

10 N.W. 818

GARRETSON

v.BITZER.

Supreme Court of Iowa.

Filed December 15, 1881.

Appeal from Muscatine circuit court.

The plaintiff claims of the defendant the sum of $300, and alleges, as a ground of such claim, that he sold and conveyed to the defendant certain real estate for the consideration of $2,000, and that there is due and owing to plaintiff, on account of said sale, the sum of $300. The defendant filed an answer denying that there is due and owing to the plaintiff the sum of $300, or any other sum, on account of said contract and sale, and alleging “that the original agreement between said parties for the sale by plaintiff and the purchase by defendant of said lot was, by mutual consent, modified and changed as follows: That defendant agreed to give, and plaintiff agreed to accept, as full payment for said premises, the following, to-wit, ten shares of stock of the Muscatine National Bank, $300 in money, and defendant's note for $700, at 15 days' time, and that pursuant to and in fulfilment of said contract the defendant transferred, paid, executed, and delivered unto plaintiff the said stock, money, and promissory note, and the plaintiff then and there accepted the same as full payment for said premises, and delivered to defendant his conveyance of such premises.”

Subsequently the defendant filed an amendment to his answer, as follows: “The defendant says that on or about the twelfth day of October, 1878, the plaintiff offered and agreed to sell and convey unto the defendant the aforesaid premises for the following consideration, to-wit: $300 in money; the promissory note of this defendant, at 15 days' time, for $700; and the transfer and assignment by defendant to the plaintiff of certain shares of the capital stock of the Muscatine National Bank, then held by and standing in the name of the defendant on the books of said bank,--which said offer and agreement were accepted by the defendant, and pursuant thereto, and in fulfilment thereof, the plaintiff executed and delivered unto the defendant his deed and conveyance of said premises, and the defendant paid, executed, delivered, and transferred unto the plaintiff the aforesaid money, promissory note, and bank stock, in full payment and satisfaction of said agreement, and for said conveyance, and the same were so accepted and received by the plaintiff.”

The cause was tried to the court, and judgment was rendered in favor of the defendant. The plaintiff appeals.J. Scott Richman and Brannan & Jayne, for appellant.

J. Carskaddan and Hoffman, Pickler & Brown, for appellee.

DAY, J.

1. In determining the case the court held that the burden of proof was upon the plaintiff, and that he must fail because he had failed to establish the facts essential to his recovery by a preponderance of evidence. It is insisted that in this ruling the court erred. It is claimed that the answer of the defendant is in the nature of a confession and avoidance, and that the burden of proof is upon the defendant to establish payment in full, as alleged in the answer. It is observed, however, that the defendant does not admit in his answer that he agreed to pay the plaintiff $2,000 for the land in controversy, or that there ever was due the plaintiff $300 on the contract. The defendant simply sets up the agreement as he understands it, and alleges that he has complied with it. It was not incumbent upon the defendant, in order to defeat the plaintiff's claim, to prove this agreement and a compliance with it. The substantial issue, and which involves the merits of the case, is whether there is due the plaintiff $300 on the contract of purchase. The plaintiff alleges that such sum is due. The defendant denies that that sum or any amount is due. The plaintiff cannot recover without proving some amount due. The burden of proof is upon the plaintiff to establish that fact. The court did not err in holding that the plaintlff must establish his claim by a preponderance of testimony.

2. The plaintiff was president of the Muscatine National Bank, which, on the ninth of October, 1878, was in process of liquidation. The defendant owned 10 shares, of $100 each, in this bank. On the ninth of October, 1878, the plaintiff informed the defendant that there was a dividend of 30 per cent. of his shares of the capital stock of the bank to be refunded to him. On the same day the defendant went to the bank to draw his dividend, but was unable to do so because he did not have his certificate of stock with him. The next morning, October 10th...