Graeser v. Gordon

• Decision Date: 16 November 1920
• Docket Number: No. 33371.,33371.
• Parties: GRAESER v. GORDON ET AL.
• Court: Iowa Supreme Court

189 Iowa 1279

179 N.W. 852

GRAESER

v.GORDON ET AL.

No. 33371.

Supreme Court of Iowa.

Nov. 16, 1920.

Appeal from District Court, Polk County; Thomas J. Guthrie, Judge.

Action for services rendered, resulted in judgment as prayed. The defendants appeal. Affirmed.Stipp, Perry, Bannister & Starzinger and Guy S. Calkins, all of Des Moines, for appellants.

Fred F. Keithley, of Des Moines, for appellee.

LADD, J.

The petition alleges that defendants employed plaintiff to obtain an easement over “the south thirty feet of Holcomb Avenue West across outlot A, lying between Home Park addition and the east bank of the Des Moines river, now included in the city of Des Moines, Iowa,” to be used in conveying ice from the river to icehouses, and that for services so rendered defendants promised to pay plaintiff the sum of $300; that plaintiff procured the said easement for defendants on conditions approved by them, and demanded judgment accordingly. Defendants interposed a general denial, and pleaded that the contract, if any, was “for the creation, transfer, and conveyance of an interest in real estate,” and that the contract was not in writing, and may not be proven orally. The only issue raised on this appeal is whether the alleged agreement was for services to be rendered or for the creation or transfer of an interest in land. Appellant contends that the evidence established the latter, while appellee insists that at most the evidence was in conflict, and the issue was rightly submitted to the jury. Plaintiff owned a right of way easement from the Des Moines river near Sixth avenue in Des Moines back to some lots. The city had condemned this for city purposes in 1915, and plaintiff had appealed to the district court. He had contemplated its use for harvesting and storing ice, and pending appeal had entered negotiations through the city attorney, who had suggested giving him another outlet or right of way to the river. Thereupon plaintiff approached defendants concerning the purchase of their lots, and, being unable to acquire these, told Gordon--

“what I wanted the lots for; I told him I could get a right of way for them for the ice business. The termination of our negotiations was that he was to pay me $300 to procure for them this right of way for icehouse purposes. At that time I told Gordon I would have to get the easement and that I could get it at that place.”

Thereupon he arranged with the city attorney that the city convey an easement from the river to defendant's lots, and Gordon referred him to the late Roy Cubbage as representing him. On cross-examination the witness testified:

“I had somehing coming from the city, and I wanted to turn that to him. I could get certain concessions from the city in settlement of my condemnation suit, and I would get it for him. I told him what I had in prospect. I told him I had a right of way to the river to sell, and that I could get it through their lots. Gordon agreed to pay me $300 if I could get it.”

A deed, conveying the easement from the city to plaintiff, prepared by Cubbage at Gordon's instance, was executed in behalf of the city in April, 1916, and plaintiff dismissed his appeal from the condemnation proceedings. Thereupon plaintiff told Gordon that the former had the deed, “and had prepared a deed from me transferring my right that I had from the city, and that I was ready to close the deal.” Gordon replied that a long time had passed since negotiations had begun, and that they did not believe they wanted it now, as the saloons had gone out of business, and there was no longer a market for river ice, and later said that he would be willing to go through, but Levitt would not, for the reason stated, and that he did not feel like doing so alone. Plaintiff's deed of the easement from himself to defendants had been prepared, save acknowledging, but was not delivered. On recross-examination plaintiff was asked:

“Isn't this what you agreed to do, to obtain for him from the city of Des Moines an easement? A. Yes, sir, getting him something he couldn't get himself that was due to me. Q. That is true, isn't it? A. Yes, sir. Q. What you contracted with him was, as you claim, to obtain for him from the city of Des Moines an easement? A. Not specifically from the city of Des Moines. Q. You say so in your petition, and you swore to that, didn't you? A. Possibly.”

Cubbage not only prepared the conveyance for Gordon, but...