Goodenow v. Foster

• Decision Date: 22 May 1899
• Citation: 79 N.W. 288,108 Iowa 508
• Parties: GOODENOW v. FOSTER ET AL.
• Court: Iowa Supreme Court

108 Iowa 508

79 N.W. 288

GOODENOW

v.FOSTER ET AL.

Supreme Court of Iowa.

May 22, 1899.

Appeal from district court, Sac county; S. M. Elwood, Judge.

This appeal is by the defendants from a ruling sustaining plaintiff's demurrer to their answer, and the judgment rendered against them for want of further pleading. Affirmed.W. A. Helsell, for appellants.

R. M. Hunter, for appellee.

GIVEN, J.

1. The petition is in two counts, in substance as follows: The first alleges that between July 24 and October 13, 1896, the plaintiff performed work and labor for Herman Swanson, as engineer on a steam thresher, at $2 per day, of which thresher Swanson was owner, and with which he was doing custom work, and that for said work there is a balance due to plaintiff for $41.37. In the second count he shows that there is due on a like claim $76.25 for labor performed by Mel Wright as engineer on said thresher, and that said claim has been assigned to, and is the property of, the plaintiff. In each count he alleges that on October 13, 1896, said thresher was seized by the defendant Foster under a chattel mortgage executed thereon by Swanson to the defendant Allen, “and the business of said Swanson was suspended”; that on the 21st day of October, 1896, each of said claims, made out and verified as required by law, was presented by the claimants to said Foster; that on the 23d day of October, 1896, said Foster sold said property for $600; that the costs were $20; that Allen knew said claims had been presented to Foster, and did not file any exceptions thereto; that Foster refused to pay said claims, and turned over to Allen the proceeds of said sale, which Allen retains, and refuses to pay the plaintiff's claim. Plaintiff asked judgment for $117.62, with interest. Defendants answered without expressly admitting or denying any of the allegations of the petition. They alleged in substance as follows: That on the 22d day of June, 1896, Allen, as agent of the Aultman Company, sold the thresher to Swanson; that Swanson then executed a chattel mortgage on said property, to secure the purchase price, to the Aultman Company, which mortgage was recorded on the 23d day of July, 1896, long before the work and labor were commenced to be performed, and that said labor was performed with full knowledge of said mortgagee; that subsequently the Aultman Company assigned its rights to Allen; that Swanson made default in the payment, and that Allen was compelled to foreclose said mortgage; that the defendant Foster has in no instance done more than to act as agent or employé of Allen in his foreclosure proceedings; that there has been at no time more in defendants' hands than enough to...