Hess v. Dicks
| Decision Date | 25 October 1921 |
| Docket Number | 33893 |
| Citation | 184 N.W. 742,192 Iowa 378 |
| Parties | H. O. HESS, Appellant, v. F. R. DICKS et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--W. G. SEARS, Judge.
ACTION at law, to recover $ 840 rent for plaintiff's farm. The defense was a plea of settlement by sale of personal property by defendants to the landlord for the full amount of the rent, and that the property so conveyed was more than plaintiff's claim. Defendants asked to recover on their counterclaim for the difference. Trial to a jury. Verdict and judgment for defendants for $ 23.10 on their counterclaim. The plaintiff appeals.
Affirmed.
Hess & Hess, J. A. Prichard, and Milchrist, Scott & Pitkin, for appellant.
H. B Walling and Griffin, Griffin & Griffin, for appellees.
The case has been here before. Hess v. Dicks, 181 Iowa 342, 164 N.W. 639. The general facts are there stated, and will not be now repeated. The case was tried on a somewhat different theory at the last trial. Defendants amended their answer, after the reversal, and alleged, and now claim, that there were not two contracts between the parties, but that it was one entire transaction, including the team of horses. The instructions given by the trial court are not before us on this appeal. We assume that they were appropriate and applicable to the issues and the theories of the parties. It appears that a part of the property which defendants say they sold to plaintiff in settlement of the rent account--the team of horses--was mortgaged. Appellant contends that defendants had no authority to sell the team. On the other hand, appellees contend that they had the consent of the mortgagee to sell the team and turn it over to plaintiff; and that the mortgage was to be released; and that plaintiff knew of the mortgage, and was to get the team of horses later. The errors assigned are that the court erred in overruling plaintiff's motion for a directed verdict in his favor, and in overruling his motion for new trial. The propositions in the brief points are that, where two or more parties negotiate for the purchase of several items of personal property as an entirety, and it turns out that a portion of the property is incumbered by a mortgage, so that the seller cannot deliver, the proposed purchaser is at liberty to withdraw his proposition; that a sale is not complete if anything is yet to be done by either party before delivery; that the statute prohibits the sale of mortgaged property. It is said by appellant in argument that the errors resolve themselves into a single question, which is, in substance: Conceding the defendants' contention, that they and plaintiff orally agreed upon a settlement of the rent by plaintiff's purchasing the several items of personal property mentioned, was plaintiff bound to the agreement so that he could not withdraw, when it transpired that a material portion of the property was mortgaged? They contend that it was an unaccepted proposition; that Dicks could not sell the team lawfully at the time, etc. Appellant discusses the evidence at some length, and the conflict or variance between the evidence of Dicks given on the trial of this case, and his evidence on a former trial.
It seems to us that counsel treat it more as a question of fact. There is a conflict in the evidence as to the terms of the alleged contract of settlement, and other matters. The several items other than the team, which defendants claim they sold to plaintiff, to apply on the rent, were baled hay, oats, corn in the field, loose hay, etc., in the total amount of $ 663.10, as claimed by defendants. As we understand the record, there was a delivery of these items to the plaintiff, and an acceptance by him, and he exercised control thereof, though the hay was not all baled, and the amount of another item was not determined. Under the agreement, as the jury could have found from the evidence, these details were to be ascertained later. Plaintiff assumed control of and gave directions in regard to baling the hay. As we understand it, there is no dispute about the foregoing items. Defendants testified that plaintiff got them all, and it seems that plaintiff did not withdraw, or seek to withdraw, from the arrangement as to these items. It appears that the parties discussed the matter two or three times, prior to January 17, 1916, on which date occurred the last conversation between them. It appears that a son of one of the defendants, which defendant conducted the negotiations, was seriously sick, so that such defendant had to take his son away at once; and defendants' evidence tends to show that this was at the suggestion of the plaintiff, as well as of the others. This defendant was gone about eight days. In the meantime, plaintiff brought suit for the full amount, and caused to be issued a landlord's attachment.
The controversy, then, is in regard to the team of horses, and as to whether defendant had a right to sell the team and apply the agreed price of $ 200 on the rent, which price, with the items before referred to, would equal or exceed plaintiff's claim. The property before described was on the premises owned by plaintiff and rented by him to the defendants. The team was on the Hiller farm, some four miles distant, which farm was being conducted by defendant F. R. Dicks. It is conceded that there was a mortgage on the team, which, at the date of the alleged settlement, had not been released of record. Defendants' evidence is to the effect that plaintiff was informed of the mortgage, and that it would have to be adjusted; and that plaintiff agreed to get the team later, when that detail and some of the details as to the other property were determined. Defendants' evidence tends to show that plaintiff assented to this, and agreed to account to defendants if, when the hay, oats, etc., were measured up, and the amounts were determined, it should be found that the property amounted to more than plaintiff's claim.
It is contended by appellees that they had a right to sell the team, and that the sale was legal, because the mortgagee gave Dicks permission to sell the team to plaintiff, and consented to such sale, and agreed that said mortgagee would thereafter release the mortgage. It is not claimed that such permission or consent was in writing. We do not understand the bank (mortgagee) to be making any claim to the team, or that it ever has done so since the alleged agreement of settlement. A brief summary of the testimony of some of the witnesses in regard to the team and defendants' right to sell it, though mortgaged, will be stated. F. R. Dicks testifies that, when he made the final arrangement, plaintiff and Creek, who was talking of renting plaintiff's farm, under an arrangement between Creek and plaintiff, in regard to plaintiff's assisting Creek in the purchase of apparatus to carry on the farm, came to the Hiller place, about the middle of January, and plaintiff said he would like to have the rent fixed up. They then discussed the other property. The team of horses was standing in the barn, and Dicks told plaintiff he could have the horses for $ 200, and plaintiff asked Creek if that suited him, and Creek said it was satisfactory. Creek said something about Dicks' furnishing a better pair of halters than those on...
To continue reading
Request your trial