Hanson v. Lassek

• Decision Date: 12 December 1967
• Docket Number: No. 52621,52621
• Citation: 261 Iowa 707,154 N.W.2d 871
• Parties: Neil H. HANSON, d/b/a the H. P. Sales Company, Appellee, v. Basil R. 'Pete' LASSEK, d/b/a, Mechanical Products Company, Appellant.
• Court: Iowa Supreme Court

Page 871

154 N.W.2d 871

261 Iowa 707

Neil H. HANSON, d/b/a the H. P. Sales Company, Appellee, v. Basil R. 'Pete' LASSEK, d/b/a, Mechanical Products Company, Appellant.

No. 52621.

Supreme Court of Iowa.

Dec. 12, 1967.

Rehearing Denied Feb. 5, 1968.

Richard L. Rick, Des Moines, for appellant.

Stewart, Miller, Wimer, Brennan & Joyce, by Joseph B. Joyce, Des Moines, for appellee.

RAWLINGS, Justice.

By his petition in an action at law, plaintiff asserted a partnership between himself and defendant, subsequently terminated, and an uncompensated expenditure of funds in connection with the venture, for which he asked judgment.

On defendant's motion, with no resistance by plaintiff, the case was transferred to equity and so tried.

Defendant's answer, as amended, admitted the partnership, then by counterclaim reasserted the relationship and requested an accounting.

As best we can determine, plaintiff's amendment to his petition alleged, in substance, the partnership was to be on a cash basis; profits evenly divided, apparently in proportion to earnings expected to be nearly equal; and operating expenses shared.

The pleadings disclose Both parties asserted not less than eleven times the existence of a partnership, and that neither party at any time denied it, either generally or otherwise.

The trial court found no partnership existed, denied right to an accounting, held defendant indebted to plaintiff, and entered judgment accordingly.

Defendant appeals. We reverse.

I. This court was called upon to consider a similar situation in Grantham v. Potthoff-Rosene Co., 257 Iowa 224, 230--232, 131 N.W.2d 256, 259, and in reviewing the matter stated: 'Averments in a pleading * * * not withdrawn or superseded are conclusive admissions of the facts pleaded.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: 'As to such admissions, there is no issue; no proof is required; and the party making them is bound thereby. * * * It will be observed that the following distinctions exist between the pleadings upon which the case is tried and those that have been superseded. The former are before the court and jury of necessity, without offer, not as evidence, but to show the issues to be tried; and admissions made therein are taken as true, and conclusive against the party making them. The latter are not necessarily before the court and jury, and, if before them, are only as evidence, are not conclusive, and may be shown to have been made inadvertently, or by mistake, or, as stated in the instruction, may be contradicted or explained.'

'We have followed and applied this rule in a considerable line of cases.

'In Lauman v. Dearmin, 246 Iowa 697, 706, 69 N.W.2d 49, 54, is this: 'It is a recognized rule that an allegation binds the one who makes it. When its truth militates against the party who pleads it, it must be taken as true against him.' See also Reynolds v. Aller, 226 Iowa 642, 648, 284 N.W. 825, 828: 'An allegation binds the one who makes it'; Tischer v. City of Council Bluffs, 231 Iowa 1134, 1145, 3 N.W.2d 166, 172: 'When such admissions are made no proof is required, and the person who makes such an admission is bound thereby.' In Wilson v. Oxborrow, 220 Iowa 1135, 1142, 264 N.W. 1, 5, we stated the rule thus: 'Although on the question now being considered the plaintiff's evidence should be considered in a light as favorable to plaintiff as is reasonably possible, yet under the well-established precedents of this court specific admissions made in the pleadings forming the issues being tried are binding on the party making them, and as to such admissions there is no issue.' Whelton v. Chicago, Milwaukee & Saint Paul Railway Company, 189 Iowa 918, 920, 921, 179 N.W. 140, 141, 142, says: 'It may be conceded there is a conflict on whether these allegations are true. But, be that as it may, these allegations bind the one who makes them. When their truth militates against the one who pleads them, they must be taken to be true as against him.'

'It is said in 71 C.J.S. Pleading § 59, pages 150--152 inclusive: 'It follows that a party cannot subsequently take a position contradictory of, or inconsistent with, his pleadings, and that the Facts which are admitted by the pleadings are to be taken as true against the pleader * * *, whether or not they are offered as evidence. So admissions in the pleadings may render proof of the admitted facts unnecessary or render proof contradicting them inadmissible, and if countervailing evidence, either through inadvertence or the tacit consent of the parties, is admitted, it is entitled to no consideration * * *.' 41 Am.Jur., Pleading, section 201, page 435, states: 'It is an elementary rule that a litigant is not required to prove the allegations or facts admitted by his adversary to be true. A party is generally bound by the allegations or admissions of his own pleadings.' See also Turner v. McCready, 190 Or. 28, 222 P.2d 1010, 1013, and Ogden v. Rabinowitz, 86 R.I. 294 (300), 134 A.2d 416, 419. It is also said in the latter case: 'This rule applies to all pleadings in the case, whether a declaration, complaint or petition, bill of particulars, plea or answer, or other pleadings. " (Emphasis supplied) See also rule 102, R.C.P.; Hofer v. Bituminous Cas. Corp., Iowa, 148 N.W.2d 485, 486; In re Estate of Stonebrook, 258 Iowa 1062, 1073, 141 N.W.2d 531; Leo v. Leo, 239 Iowa 873, 876--877, 32 N.W.2d 777; Massey v. City Council of City of Des Moines, 239 Iowa 527, 534, 31 N.W.2d 875; 68 C.J.S. Partner...