Gibson v. Seney

• Decision Date: 07 May 1908
• Citation: 116 N.W. 325,138 Iowa 383
• Parties: ROBERT GIBSON v. CHARLES SENEY, Appellant
• Court: Iowa Supreme Court

116 N.W. 325

138 Iowa 383

ROBERT GIBSON v. CHARLES SENEY, Appellant

Supreme Court of Iowa, Des Moines

May 7, 1908

Appeal from Cerro Gordo District Court.-- HON. CLIFFORD P. SMITH Judge.

MARY E SENEY and Gertrude E. Heyer owned the S. 1/2 of lots 1 and 2 in block 29 in South Mason City, subject to a mortgage of $ 1,000, and, through their agents, Charles Seney and G. A Stearns, agreed to exchange them to Robert Gibson & Son for the interest of Robert Gibson in the S.E. 1/4 of section 12 in township 127 N. of range 144 in Grant county, Minn., to which he held a contract from the owner to convey upon the payment of $ 4,330 and the execution of four notes in the sum of $ 125 each to Seney and Stearns. In pursuance of the agreement, a quitclaim deed to Gibson from the fee owner of the land, together with the contract of sale and the four notes, were deposited by the Gibson with Geo. E. Winters, as were also the deeds of Mary E. Seney and Gertrude E. Heyer of the lots to the Gibsons, upon condition that delivery shall be made upon certain conditions which, as plaintiff alleged, have been fully performed; and he further alleged that defendants fraudulently misrepresented the boundaries of the lots to plaintiff's damage in the sum of $ 1,000, for which judgment was prayed. The defendants denied this, and pleaded that taxes on the Minnesota land which were to be paid had not been, and that they were to receive, to be applied on the notes, fourteen tons of anthracite coal at the market price, or the notes were to be secured by chattel mortgage on personal property of Gibson & Son. The defendants denied there had been any misrepresentation, or that Gibson & Son had been damaged, and in a counterclaim pleaded the failure and refusal of Gibson & Son to perform, and defendant's election to rescind, and prayed that the agreement be canceled and the parties be put in statu quo. The first part of defendant's motion to transfer the cause to the equity side of the calendar was overruled, but the second part to so transfer the counterclaim was sustained. The other plaintiffs named, Gibson & Son and C. R. Gibson, assigned their interest in the action to Robert Gibson, and the cause was submitted to the jury as against Charles Seney only. Verdict was rendered for the plaintiff, and judgment entered thereon. The defendant Seney appeals.-- Affirmed.

Affirmed.

Cliggit, Rule & Keeler, for appellant.

J. J. Clark and Blythe, Markley, Rule & Smith, for appellee.

OPINION

LADD, C. J.

The issues, aside from those raised by the counterclaim, were at law, and for this reason the court rightly declined to transfer the cause to the equity side of the calendar. The counterclaim presented equitable issues only, but these were such as are fully disposed of by the trial of those at law, so that a verdict rendered a hearing of the equitable issues unnecessary. As the action was at law, the court did not err in directing the trial of the issues raised by the petition and answer first. Morris v. Merritt, 52 Iowa 496, 3 N.W. 504; Johnston v. Robuck, 104 Iowa 523, 73 N.W. 1062; Wilkinson v. Pritchard, 93 Iowa 308, 61 N.W. 965; Twogood v. Allee, 125 Iowa 59, 99 N.W. 288.

II. The plaintiffs exchanged for the lots with a view to the erection of coal sheds on them, as Seney well knew, and the charge is that he falsely represented that they extended to the right of way of the Chicago & Northwestern Railway Company whereas, there was an alley sixteen and one-half feet wide between them and the right of way. The defendant Seney testified that, when the negotiations for an exchange were begun, he supposed the alley had been vacated, but had learned otherwise, and so advised both C. R. and Robert Gibson in the early part of April, 1905. The agreement of exchange was not made until May 22d, so that there was no claim by defendant but that he then acted with knowledge of the existence of the alley, nor that what he did was under the supposition that the lots extended to the railroad. Nevertheless, on cross-examination, after testifying that he had represented to Winters that the lots would be valuable owing to their proximity to the track, he was asked: "Q. Didn't you represent to him that they lay right at the edge of your lot there? (Objected to as not proper cross-examination. Overruled.) A. Not on the edge of the lot, on the edge of the alley. Didn't tell him that the lot extended right up to the track, or that in substance. Am acquainted with Wallace Williams. Q. Well, you told him about the big value that that possessed on account of its proximity to those tracks? (Objected to as incompetent, not proper cross-examination, and irrelevant. Overruled.) A. Oh, I don't know as any great value, I told him how it laid there. I don't know whether he went down to see it or not. Q. Well, you told him that this lot extended over to the railroad track, didn't you? (Same objection, incompetent, not proper examination, and irrelevant. Overruled.) A. No, sir; I told him the alley extended to the railroad. I understood the alley had been vacated, and, of course, supposed that it would belong to the lot. Did not tell him my lot went to the ties. Did not tell him I owned right up to the railroad. I supposed that the alley went directly to the tracks." Plainly enough, this was not cross-examination of anything brought out in his direct testimony. He had not gone into the subject of his intent or purpose in pointing out the boundaries of the lots, but denied broadly that the deal was made with the understanding by the Gibsons that the lots extended to the right of way. As contended by appellee, proof of other efforts to sell for a like purpose upon representations such as alleged might be admissible, but this did not justify eliciting such proof on cross-examination when the subject-matter had not been touched in the examination in chief. But his answers were entirely consistent with his testimony in chief and in support of his contention that he knew the alley was there, but...