Hamilton Buggy Co. v. Iowa Buggy Co.

• Decision Date: 20 May 1893
• Citation: 88 Iowa 364,55 N.W. 496
• Parties: HAMILTON BUGGY CO. v. IOWA BUGGY CO. ET AL., (WESTERN MIN. & INV. CO., INTERVENER.)
• Court: Iowa Supreme Court

88 Iowa 364

55 N.W. 496

HAMILTON BUGGY CO.

v.IOWA BUGGY CO. ET AL., (WESTERN MIN. & INV. CO., INTERVENER.)

Supreme Court of Iowa.

May 20, 1893.

Appeal from district court, Polk county; S. F. Balliet, Judge.Earle & Prouty, for intervener, appellant.

Park & Odell, for appellee.

W. S. Sickmon, for garnishee.

KINNE, J.

1. Plaintiff commenced an action by attachment against the defendant, claiming about $2,800, and on October 25, 1890, caused one Cook to be garnished therein. December 20, 1890, Cook answered as garnishee, denying any indebtedness to the defendant, and averring that he had been indebted to the defendant in October, 1890, about $1,800; that on October 10, 1890, he received from the defendant a written notice of the assignment of said debt to the intervener. January 7, 1891, the Western Mining & Investment Company filed a petition of intervention, claiming the account or property in the garnishee's hands. On January 10, 1891, plaintiff filed its answer to the petition of intervention, denying the intervener's ownership of the indebtedness, and averring that the transfer of it to intervener was without consideration, fraudulent, and void. June 6, 1891, judgment was rendered in the main action against the defendant. The cause, as to the issues joined between plaintiff and intervener was tried to a jury, and a verdict and judgment rendered for plaintiff, from which intervener appeals.

2. Plaintiff insists that the 1st, 2d, 3d, 4th, and 6th assignments of error are not sufficiently specific. Each and all of these assignments relate to the admission of evidence against the objection of intervener, and each assignment sufficiently points out the error, naming the witness, and specifying the evidence and rulings objected to. To require more would entail an unnecessary burden upon appellants. While the law contemplates that such assignments shall clearly point out the error complained of, it is not necessary to incumber the record by setting out the whole examination in which the error is claimed to have occurred. Union Bldg. Ass'n v. Rockford Ins. Co., (Iowa,) 49 N. W. Rep. 1032. It is urged that the thirteenth assignment of error is insufficient. It reads: “The court erred in overruling intervener's motion to direct a verdict for intervener.” The motion referred to contains 12 distinct grounds for a new trial. The assignment of error is insufficient in not pointing out the particular ground, or grounds, of error complained of. Betts v. City of Glenwood, 52 Iowa, 126, 2 N. W. Rep. 1012. The same objection is made to the sixteenth and seventeenth assignments, which are substantially in the same form, and for the reason last stated cannot be considered. The following assignments of error are assailed as being too indefinite: “(20) The verdict is contrary to law.” “(23) The court erred in rendering judgment upon the verdict.” These assignments are too general. They do not point out or suggest wherein the verdict is contrary to law, or wherein the entry of judgment was error. Brigham v. Retelsdorf, 73 Iowa, 714, 36 N. W. Rep. 715;Vanderberg v. Camp, 68 Iowa, 212, 26 N. W. Rep. 80;Betts v. City of Glenwood, 52 Iowa, 126, 2 N. W. Rep. 1012;Tomblin v. Ball, 46 Iowa, 190.

3. H. B. Cunningham, a witness for intervener, identified the minute book of defendant company, whereupon intervener introduced in evidence that part of page 11 of said book which showed the action of the board of directors of defendant ordering the assignment of accounts to the intervener, to pay notes held by it against the defendant. On cross-examination plaintiff, against intervener's objection, was permitted to read in evidence the remainder of the minutes of said meeting of defendant. They related to the assignment of certain notes and accounts to other creditors of the company; also to the fixing and payment of the salaries of defendant's officers. Plaintiff contends this, being a part of the same record, was admissible, under section 3650 of the Code. Clearly, this evidence was not admissible under the provisions of the section quoted. It did not relate to the same subject, but it did relate to acts of defendant which took place at the same time the transfer of the accounts was made. It was proper to show that, at the time intervener claimed defendant assigned the account to it, defendant was engaged in disposing of its other property. True, the facts shown might not, of themselves, show fraud, but were proper to be taken into consideration with all other facts and circumstances in determining the intent with which defendant acted in its transfer of the accounts of intervener. Of course, to bind intervener by such transactions, even if fraudulent on part of defendant, it must be made to appear that intervener was a party to the fraud. Again, the manner in which these two corporations had conducted their business, as hereinafter referred to, warranted great latitude in the admission of such testimony.

4. Plaintiff called as a witness J. T. James, president of defendant, and examined him as to who constituted the stockholders of said company, who were officers of intervener, their residence, and relationship to the stockholders and officers of defendant. It is urged that this was error. Some of the facts touching the stock of defendant were also testified to by witness Leiser, and, while error is assigned on the admission of his evidence, it is not argued. Other facts sworn to by James were established by the books of defendant, which we, for reasons hereafter stated, hold were properly admitted. Again, much latitude is allowed in the examination of witnesses in cases where fraud is the subject of the inquiry. The relationship of the officers of defendant and intervener was clearly within the reasonable limits of the investigation in such a case, and was a proper matter to be shown. The fact that the witness was president of the defendant company, and at the same time secretary of the intervener, might be material, in connection with other facts and circumstances, in tending to show that the transaction in controversy was fraudulent.

5. It is urged that the court erred in admitting in evidence the books of defendant, and also of the accounts of James and Cunningham therein, who were officers of the defendant. It is claimed that intervener is a stranger to the transactions of defendant, and hence cannot be bound by any entries that may be found in its books. The law undoubtedly is that the entries in the books of a company are not evidence as against strangers. The evidence shows that the defendant and intervener used the same books. Witness Leiser testifies: “I think the Western Mining & Investment Company owned the Iowa Buggy Company. Mr. James was then manager. It was doing business at that time under the name of the Iowa Buggy...