Grantham v. Potthoff-Rosene Co.
| Decision Date | 16 November 1964 |
| Docket Number | POTTHOFF-ROSENE,No. 51499,51499 |
| Citation | 257 Iowa 224,131 N.W.2d 256 |
| Parties | Milton V. GRANTHAM, Appellant, v.CO., a Partnership composed of Carl H. Potthoff, Sr., Carl H. Potthoff, Jr., and Edward A. Potthoff, and Carl H. Potthoff, Sr., Carl H. Potthoff, Jr., and Edward A. Potthoff, Appellees. |
| Court | Iowa Supreme Court |
Garten, Lindel & Garten and John E. Landess, Des Moines, for appellant.
Wilson, Maley & Stamatelos, W. Des Moines, for appellees.
In the case at bar the defendants pleaded too much, and proved too little. Their case suffers, and dies, from a plethora of pleading and a paucity of proof. While several errors are assigned and several points are argued in the briefs, we find the first assigned error to be of controlling importance. It is thus stated:
For an understanding of the question involved some statement of the facts is necessary. In September, 1960, one Carl Menzel, a salesman for the Wilson Laundry Equipment Company of Kansas City, Missouri, called on the plaintiff, a resident of Chadron, Nebraska, and discussed with him the purchase of equipment distributed by Wilson. As a result of conferences between Menzel and the plaintiff and his wife, it was decided to order the equipment from the defendants, who were at that time a partnership operating in Des Moines. Later the defendant partnership became a corporation, and it was made a party to this action by an amendment to the petition. No issue is made as to this.
The plaintiff then made and delivered to Menzel his check for $2,500.00 as a down payment on the equipment purchased. Menzel took the check to the drawee bank and received for it a cashier's check in the same amount. Both instruments were made payable to Potthoff-Rosene Company, the then partnership name. The corporate name was the same, with the addition of the word 'Inc.' at the end.
This check was shortly thereafter presented to the defendant company by one R. C. Shepler, together with a written order for certain laundry equipment. The copy of the order left with the plaintiff has 'Potthoff-Rosene Co., 1224 High St.--CH 4-4205, Des Moines 9, Iowa' stamped at the top; but the original delivered to the defendants did not contain these words. In all other respects the two copies are identical, and both were signed by the plaintiff and his wife, Leola B. Grantham.
When Shepler presented the cashier's check and the order to the defendants, he endorsed the check 'Potthoff-Rosene Company Sales Manager Laundry Dept., R. C. Shepler.' The check then remained with the defendants until after September 29, 1960, when the plaintiff sent them a telegram:
1960 Sep 29
AM 8 31
'Potthoff-Rosene Co.
1224 High St.
Cancel my order for equipment totaling $11,270.35 Request immediate return of deposit of $2,500.00
Chadron, Nebraska'
He testified that he sent this cancellation because he had heard nothing from them by way of acceptance of the order or otherwise.
The defendant Carl H. Potthoff, Jr. testified that after this wire was received he endorsed the cashier's check 'Pay to the order of R. C. Shepler, Potthoff-Rosene Co., By Carl H. Potthoff, Jr.' and delivered it to Shepler, because the order had come through him. The check bears Shepler's endorsement below that of the defendant company. Shepler was a brother-in-law of Carl H. Potthoff, Jr. He is now deceased and the ultimate fate of the proceeds of the check is not shown in the record. They have never been returned to the plaintiff.
There is substantial evidence that neither Menzel or Shepler was an agent or officer of the defendant company; and if this were all we would have no difficulty in applying the rule that the fact findings of the trial court are binding on us. But for a reason we shall endeavor to make clear we think the defendants are foreclosed from denying that the check, or its proceeds, remained in their hands. This arises from a counterclaim they filed in the case. The effect of the counterclaim is to ask damages for the alleged breach of the plaintiff's contract for laundry equipment. It contains these allegations: 'That on or about September 16, 1960, plaintiff did make, execute and deliver a certain instrument in writing, which was an order for certain laundry equipment for the conduct and operation of a laundromat in Chadron, Nebraska; that the total amount of the contract was $11,270.35, on which there was a down-payment made of the sum of $2,500.00, leaving a balance due of $8,770.35; that a copy of said agreement and order is attached hereto marked Exhibit 'A', and thereby incorporated herein.' There follow allegations that the defendants at once commenced to fill the order, the receipt on September 29, 1960, of the telegram of cancellation, the cancellation of a shipment which had been ordered sent to the plaintiff, and this: 'That the said defendants operate on a 30% margin of profit and that they were denied all but $2,500.00 of their normal profit and markup on the equipment contained in the said contract.
'That a sum of money equal to 30% of the total contract price of $11,270.35 is the reasonable value of the markup and profit accruing unto the said defendants in this transaction.
'That the total amount due unto the said defendants from the said plaintiff and which the defendants claim is justly due unto them is the sum of $3,381.00, less the sum of $2,500.00, which has already been paid unto the said defendants and which the defendants are willing to credit the plaintiff.
'WHEREFORE, defendants pray for judgment against the said plaintiff in the sum of $881.00, together with interest from and after September 29, 1960, at the rate of 5% per annum.' The counterclaim was verified by Carl H. Potthoff, Jr., and he testified:
Nevertheless, on the trial the defendants offered testimony as stated above that they had returned the $2,500.00 to Shepler. The counterclaim was introduced in evidence; but the trial court said: 'The Court finds that the pleadings of the defendant are entitled to be received as admissions of the party in whose behalf they were filed, and further finds after considering the evidence offered in open court, that said evidence has greater weight in this case than the admissions of defendant in its pleadings filed herein.'
I. The trial court was correct in holding that the pleadings of the defendant were properly received as admissions of the defendants; but it fell into error when it weighed them in the balance as against the testimony which refuted them and found them wanting. The counterclaim was never withdrawn or superseded. The court found there was no evidence to sustain it. In fact, none was offered; the burden of the defendant's case was in effect an attempt to contradict it by showing it no longer had the money but had returned it to Shepler, by whom it had been delivered to them. In passing, it should be said that the court was also in obvious error in its statement that when the check was first delivered to it 'At this time defendant endorsed the check for $2,500.00 over to Shepler'. The check was not in fact returned to Shepler by the uncontradicted testimony of Carl H. Potthoff, Jr., until after the cancellation telegram had been received. The point is not important, but does show a misapprehension of the record.
II. When the trial commenced, and indeed until it closed, the counterclaim stood unchanged, neither withdrawn or superseded. While the trial court said that the allegations of the counterclaim were denied by the plaintiff, we do not find this correct. The reply denied the allegations that the written order was a contract, but did not deny that $2,500.00 had been paid; in effect an admission of that fact.
The issues, as made by the pleadings, were that the plaintiff had signed and delivered the written order, with a payment of $2,500.00 which had not been returned; with the counterclaim asserting the same thing, but asking damages for a breach of the contract claimed to have been made by the order and its acceptance. However, on the trial the defendants relied upon the claim that neither Menzel or Shepler was their agent, and they had returned the check to Shepler, an independent contractor from whom they had received it. No attempt was made to offer evidence of damages as asserted in the counterclaim. The defendants tell us in their brief that the counterclaim was abandoned.
However, it is not a case in which a different issue was tried by consent of all parties. There is nothing to indicate that the plaintiff at any time agreed, impliedly or otherwise, that he was not relying on the contention that he had ordered the equipment, and had made the down payment; and that this had been received by the defendants, and although the order had been cancelled before it had been accepted by the defendants, the money had not been returned to him. The trial court's findings show that it was cognizant of this, as it said the counterclaim was evidence of admissions, but was overborne by the countervailing evidence, as shown by the quotation set out above.
III. We then come to the basis for our statement that there was too much pleading and an insufficiency of evidence on the part of the defendants. Averments in a pleading which is not withdrawn or superseded are conclusive admissions of the facts pleaded. In Shipley v. Reasoner, 87 Iowa 555, 557, 558, 54 N.W. 470, 471, we said: ...
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