Goldstein v. Brandmeyer

• Citation: 53 N.W.2d 268,243 Iowa 679
• Decision Date: 06 May 1952
• Docket Number: No. 48036,48036
• Parties: GOLDSTEIN et ux. v. BRANDMEYER et al.
• Court: Iowa Supreme Court

Page 268

53 N.W.2d 268

243 Iowa 679

GOLDSTEIN et ux. v. BRANDMEYER et al.

No. 48036.

Supreme Court of Iowa.

May 6, 1952.

Wayne C. Andresen, of Davenport, and Edward N. Wehr, Davenport, for appellants.

Hall & McCarthy, of Davenport, for appellee Joseph Brandmeyer.

SMITH, Justice.

Plaintiffs (husband and wife) seek treble damage under the Federal Act, 50 U.S.C.A.Appendix, § 1895, claiming they were charged $262.50 when the duly established maximum rent was only $85. They allege the payment was for rent as defined under 50 U.S.C.A.Appendix, § 1892(e) and a violation of the Act.

Only defendant Brandmeyer appeared. He filed motion for more specific statement containing sixteen paragraphs of which the trial court sustained eleven. Plaintiffs amended their petition to comply with a part of the ruling but as to the rest they stood on their pleading and appealed under Rule 331, Iowa Rules Civil Procedure, 58 I.C.A., without any formal final judgment being entered against them. We are concerned only with those parts of the ruling with which plaintiffs refused to comply.

I. The trial court ordered plaintiffs to state whether the rental contract was oral or written and if the latter that they set out a copy. Plaintiffs amended, stating the agreement was 'partially parol and partially in writing.' They refused however to set out a copy because the written contract was not the 'basis of the action.'

Rule 91, Iowa Rules Civil Procedure, provides: 'Every pleading referring to a contract must state whether it is written or oral. If the contract is the basis of the action or defense, it must be set forth in full.' (Italics supplied.)

Plaintiff's contention must be sustained. This is in no sense an action on the rental agreement. Nickelsen v. Morehead, 238 Iowa 970, 971, 29 N.W.2d 195. Rule 91 did not change the former statutory rule. See Simmermaker v. International Harvester Co., 230 Iowa 845, 849, 298 N.W. 911, Iowa Pharmaceutical Ass'n, v. May's Drug Stores, 229 Iowa 554, 561, 294 N.W. 756, for statement of the former practice.

Defendant does not meet plaintiffs' argument at this point. He suggests: First, that in passing on a motion of this kind 'doubts are resolved in favor of the movant for the reason that prejudice is very unlikely to result;' second, a petition must contain a sufficient statement of 'ultimate fact' to enable defendant to prepare for trial; and third, penal statutes such as this Act are strictly construed with nothing left to inference.

None of these suggestions is pertinent. There were no 'doubts' here to be resolved or question of pleading 'ultimate facts' to enable defendant to prepare for trial. Since the contract was not the foundation of the action its exact terms were evidentiary, not ultimate. Nor does the fact that the Federal Housing and Rent Act is penal require any departure from the ordinary rules of pleading. The cited authorities are not in point.

II. Plaintiffs alleged they rented the premises 'from said defendants' and that defendant Brandmeyer 'did demand, receive and accept' the rental 'either for his own benefit or the benefit of Carl Zoller and Margaret Zoller, the owner of the aforementioned premises (italics supplied) or for the benefit of all of them.'

Defendant's motion and the trial court's ruling on it would require plaintiffs to state: Who owned the premises; which of defendants rented them to plaintiffs; whether plaintiffs dealt with the Zollers directly or through an agent; whether they dealt with defendant Brandmeyer as principal or as agent of the Zollers; whether they paid the rent money to Brandmeyer or to the Zollers; and whether they paid it to Zollers as owners or in some other capacity, or to Brandmeyer as agent or for his own benefit.

Plaintiffs had already pleaded in effect that they had rented from all the defendants, that the Zollers owned the premises and that Brandmeyer collected the money. The purpose of the involved motion and the ruling sustaining it is stated by the trial court to enable defendant Brandmeyer 'to move for a dismissal upon the theory that the provisions of the Housing Act do not apply to an agent.'

One gets the impression there were no serious factual or evidentiary problems involved. There may have been some obscure strategic or tactical reason back of the procedural jockeying. But a detached appellate court fails to see what real difference it made which party alleged the facts proposed to be urged by defendant Brandmeyer as a defense. Plaintiffs could have alleged he was agent for his codefendants (if they knew the fact) or defendant could have pleaded it as a defense without any sacrifice of position except the burden of proving it if plaintiffs failed to admit it. Or the facts could have all been brought out at a pre-trial conference.

However the procedural problem is put up to us and we find no difficulty in its solution. The petition was sufficiently definite to enable defendant to 'plead to it'. Rule 112, Iowa R.C.P. We know no present nor past rule of pleading to compel a plaintiff to lay the groundwork for a defendant's desired motion to dismiss. As was pointed out in Day v. Power, 219 Iowa 138, 141, 257 N.W. 187, 188, where an analogous situation arose: 'If it is defensive matter, it should be pleaded by defendants. If it is matter essential to recovery, the petition is fatally defective, and defendants' remedy is not a motion for more specific statement, but is to assail the sufficiency of the pleading. Sullivan v. Gaul, 198 Iowa 630, 200 N.W. 12; Barnes v. Century Savings Bank, 149 Iowa 367, 128 N.W. 541; 49 C.J. 739.'

In 71 C.J.S., Pleading, § 481, pages 993, 995, it is said: 'A pleading will not be ordered to be made more definite and certain or specific * * * merely in order to allow the moving party to demur to the pleading as revised'. We think the authorities support the text as stated in both 49 C.J. 739 and C.J.S., supra.

III. Defendant argues ...