Glenn v. Keedy

• Decision Date: 15 January 1957
• Docket Number: No. 49086,49086
• Citation: 80 N.W.2d 509,248 Iowa 216
• Parties: Walter M. GLENN, d/b/a Glenn Implement Company, Appellee, v. Harlan KEEDY, Appellant.
• Court: Iowa Supreme Court

Page 509

80 N.W.2d 509

248 Iowa 216

Walter M. GLENN, d/b/a Glenn Implement Company, Appellee, v. Harlan KEEDY, Appellant.

No. 49086.

Supreme Court of Iowa.

Jan. 15, 1957.

Edwin A. Getscher, Hamburg, for appellant.

Martin & Wenger, Hamburg, for appellee.

PETERSON, Justice.

On September 25, 1954, plaintiff Walter M. Glenn dba Glenn Implement Company of Hamburg, sold two International tractors to defendant. The price, with tax, was $4,040. $1,000 was to be paid in cash and $3,040 was carried by plaintiff under a conditional sales contract, recorded October 1, 1954, with $1,000 payable July 1, 1955, $1,000 July 1, 1956, and $1,040 December 15, 1956. Defendant could not pay the $1,000 on the day of purchase, but he promised to pay it within thirty days, to which plaintiff agreed. Defendant testified he executed an ordinary promissory note for the down payment. Plaintiff testified no note was executed by defendant, and that he charged the item on his books as an ordinary book account. It is the contention of defendant he paid the $1,000 on December 23, 1955, and that plaintiff returned his note to him. He states he lost the cancelled note. Plaintiff denies this payment. The matter of payment or nonpayment of this item on December 23 is the only question involved in the case. On January 7, 1955, defendant paid plaintiff $2,033.86. There is no controversy concerning this payment. $1,033.86 was $812.50 on a tractor purchase made prior to the one involved in this action, $160.69 a parts purchase book account, and $60.67 interest on the old tractor item. The balance of $1,000 was paid on the two tractors involved in this action. Plaintiff alleges this was the down payment item of $1,000. Defendant contends it was a prepayment by him of the $1,000 he was to pay on July 1, 1955, on the conditional sales contract. After July 1, 1955, when the $1,000 payment was not made, plaintiff sent notice to defendant as to delinquency. Defendant contended the item had been paid by him on January 7, 1955, and refused to make payment. Plaintiff waited several weeks and in view of defendant's refusal to pay, proceeded in replevin in accordance with the terms of the conditional sales contract. The contract provided: 'The consideration of this note is the conditional sale and delivery of a New Super M. Tractor Serial #43123 and New Super H Tractor Serial #26407 and the express condition of such sale and delivery is that the title and ownership thereof is and shall remain in the said Glenn Imp. until note and interest are paid in full, and said Glenn Imp. Co. has full power to declare this note due and take possession of said property wherever the same may be whenever they may deem themselves insecure, * * *' Plaintiff made demand upon defendant for the two tractors. Defendant refused to deliver them. Plaintiff filed replevin action and secured possession. Neither party asked for jury trial and the case was tried before Hon. R. Kent Martin, District Judge. He decided in favor of plaintiff. Defendant has appealed.

I. Appellant states in his statement of the case that 'This is an action in equity brought by Walter M. Glenn dba Glenn Implement Company, plaintiff, against Harlan Keedy, defendant, to foreclose a conditional sales contract for the sale of two tractors.' By this statement appellant contends the action is in equity, but he presents no assignment of error concerning the matter, and does not argue the proposition. Appellee's action is not in equity. Since appellant refused to pay the past due item, and the balance on the tractors was substantial, appellee testified he deemed himself insecure. The petition appearing in the record is at law in replevin, properly containing all elements required under Chapter 643, Iowa Code 1954, I.C.A. The court tried the case at law. Appellant presents five propositions relied on for reversal; 1, 2, 4, and 5 pertain only to various fact elements, all of which are decided in the findings of fact by the trial court. Discussion hereafter of the facts in the case constitutes consideration of these four propositions. No. 3 has reference to admission of testimony of one witness, Jack Miller, which we will consider hereafter.

II. A replevin action is at law. Section 643.2 states 'The action shall be by ordinary proceedings, but there shall be no joinder of any cause of action not of the same kind, nor shall there be allowed any counterclaim.' We have held many times that the facts in a replevin action are triable by a jury. Nodle v. Hawthorne, 107 Iowa 380, 77 N.W. 1062; Wertheimer & Degen v. Parsons, 209 Iowa 1241, 229 N.W. 829; Brown v. Heising, Iowa, 282 N.W. 345; State Savings Bank of Sharpsburg v. Universal Credit Co., 234 Iowa 443, 12 N.W.2d 890; 46 Am.Jur.Replevin, Secs. 115 and 117. In Wertheimer & Degen v. Parsons, supra, a replevin action, we stated [209 Iowa 1241, 229 N.W. 830]: 'In the submission of the case to the jury, the court, in its instructions, stated * * *'. (Emphasis ours.) 77 C.J.S., Replevin, § 205, states: 'On conflicting evidence questions of fact arising in an action of replevin are for determination by the jury or by the trial court sitting without a jury.'

III. Since the jury was waived, the decision of the trial court as to his findings of fact are binding upon us to the same extent as the verdict of a jury, provided there is substantial evidence to sustain the findings. This case is not triable de novo. We can only consider errors assigned by appellant. Armstrong v. Smith, 227 Iowa 450, 288 N.W. 621; Haack v. Rodenbour, 234 Iowa 368, 12 N.W.2d 861; Lamble v. Schreiber, 236 Iowa 597, 19 N.W.2d 669; Kirk v. Madsen, 240 Iowa 532, 36 N.W.2d 757; A. C. Nelsen Auto Sales v. Turner, 241 Iowa 927, 44 N.W.2d 36; Hull-Dobbs Motor Co. v. Associates Discount Corp., 241 Iowa 1365, 44 N.W.2d 403. 58 I.C.A. R.C.P. 334 provides: 'Review in equity cases shall be de novo. In all other cases the supreme court shall constitute a court for correction of errors at law; and findings of fact in jury-waived cases shall have the effect of a special verdict.' In Hull-Dobbs Motor Co. v. Associates Discount Corp., supra [241 Iowa 1365, 44 N.W.2d 405], we said: 'It is true, as claimed by appellee, that in a law action with jury waived, the court's finding on conflicting facts has the force of a jury verdict, and if there is substantial basis in the record for such finding, it is conclusive on this Court on appeal.'

The evidence of appellee consisted of his own testimony that appellant did not pay him $1,000 on December 23, 1954, nor at any time in December. He was supported by the books and records of his business. The books, under stipulation, showed a charge to appellant of $1,000 on September 28, 1954, and the payment of this item on January 7, 1955. Appellee's case was also supported by the fact that appellant did not produce and offer the cancelled note in evidence. Appellant testified he paid the item on December 23 in cash and did not receive a receipt, but secured his cancelled note. The peculiarity of appellant having lost a document of this importance, without reasonable explanation as to the loss, was a factor which the court had a right to consider in arriving at his findings of fact.

Appellant's evidence consisted of his testimony that he paid appellee $1,000 on December 23, 1954. His wife and nephew testified that on some date between December 23, 1954, and January 7, 1955, they saw a promissory note for $1,000 in the glove compartment of appel...