Goring v. Fitzgerald

• Decision Date: 17 May 1898
• Citation: 75 N.W. 358,105 Iowa 507
• Parties: AUGUST GORING, Appellant, v. H. J. FITZGERALD
• Court: Iowa Supreme Court

75 N.W. 358

105 Iowa 507

AUGUST GORING, Appellant, v. H. J. FITZGERALD

Supreme Court of Iowa, Des Moines

May 17, 1898

Appeal from Floyd District Court.--HON. J. F. CLYDE, Judge.

THE petition of plaintiff sets out a cause of action as follows In April, 1889, there stood against plaintiff on the records of the court in Floyd county, a judgment in favor of the Hawkeye Insurance Company for about the amount of sixty dollars, and also a judgment in favor of the Floyd County Savings Bank for an amount approximating two hundred dollars. That at this time the defendant claimed he was the attorney for the Hawkeye Insurance Company, and that he had purchased and owned, the bank judgment, and by these means induced plaintiff to execute and deliver to him a promissory note for the sum of two hundred and fifty dollars, drawing interest at the rate of ten per cent. per annum. That this note was afterwards renewed, and was finally paid by plaintiff. It is also charged that the representations made by defendant were false; that he was not the attorney for the Hawkeye Insurance Company, and had no right to receive payment of said judgment; and that he did not own the bank judgment. It is alleged that plaintiff has been obliged to pay the judgment in favor of the insurance company to the proper parties, and that defendant not owning the bank judgment, did not have any right to receive the money therefor; that said judgment still stands as a claim against plaintiff. It is further alleged that on February 20, 1893, the defendant, by threats of forcing payment of the note so given induced the plaintiff to give him a mortgage, to secure said debt, covering certain real estate in Chickasaw county, in this state, and in the spring of 1894, by threatening foreclosure proceedings, he wrongfully induced plaintiff to deed him the mortgaged premises at much less than their real value. The petition is divided into three counts, but the facts stated, in reality constitute but a single cause of action. Defendant's first answer seems to have been a general denial. This was amended later, and the following defenses interposed Defendant admits procuring from plaintiff the promissory note as stated, but avers that he represented to plaintiff at the time that he was negotiating for the purchase of the Hawkeye Insurance Company's judgment, and that he stated to plaintiff that, if he failed to obtain it, he would credit the amount on the note; and defendant says that he did fail to get title to said judgment, and that he gave defendant credit for the amount by indorsement on said note. He admits that the amount of the bank judgment, which he says was more than two hundred and fifty dollars, was included in said note. He denies the charge that he had no right to collect said judgment, and that the same is unpaid; admits taking a mortgage on the real estate as alleged by plaintiff, and thereafter taking a deed from plaintiff of the land. Later, defendant pleaded, in an amendment to his answer, the statute of limitations. Plaintiff, by way of amendment to his petition, charged that all of the statements and representations so made by defendant, set forth in the original petition, were false and fraudulent, and were so known to be by defendant, at the time he made the same; that the falsity of said representations was fraudulently concealed from plaintiff until about December, 1894, when he first learned the facts. On defendant's motion to make this last pleading more specific, plaintiff filed an amendment in which he attempted to state when the fraudulent representations were made, and in what they and the fraudulent concealments consisted. The matters relating to the alleged fraudulent concealments were stricken out by the court on motion of defendant. Upon the pleadings in this condition, the cause was tried to a jury. At the conclusion of the evidence for plaintiff, defendant moved for a verdict in his favor. This motion was sustained. The jury returned a verdict accordingly, and from a judgment thereon against plaintiff for costs he appeals.

Reversed.

Robert Eggert for appellant.

P. W. Burr and H. J. Fitzgerald for appellee.

OPINION

WATERMAN, J.

Appellee objects to a consideration of the case here because he says, first, that the evidence is not properly identified. We see no merit in this objection. Next he claims that the judge's certificate does not state that all the evidence offered is in the record. This might be admitted without its affording any basis for the claim that the appeal shall not be heard on its merits. We are asked to pass on the court's action in taking the case from the jury. In doing this, we are called upon to consider only the evidence that was received, and this is properly before us.

I. Pl...