Higgins v. Mendenhall

• Decision Date: 01 June 1879
• Citation: 50 N.W. 539,51 Iowa 135
• Parties: HIGGINS v. MENDENHALL
• Court: Iowa Supreme Court

50 N.W. 539

51 Iowa 135

HIGGINS v. MENDENHALL

Supreme Court of Iowa, Des Moines

June 1, 1879

SATURDAY APRIL 26.

Appeal from Jefferson Circuit Court.

THIS cause was before this court, June Term, 1876, and the judgment was reversed. Upon being remanded the plaintiff filed in the Circuit Court an amended and substituted petition, which is as follows:

"1. Your petitioner represents that heretofore, to-wit: in the year 1865, the firm of Higgins, Kelley & Co. was engaged in the commission and grain business in the city of Chicago State of Illinois, and that one Daniel Mendenhall transacted a like business in the town of Fairfield, Iowa and forwarded grain to and transacted business with the said firm in Chicago; that large accounts accrued between said parties, so that in the month of May, of the year 1865, it became necessary to make settlement with the said D. Mendenhall, so that the said firm of Higgins, Kelley & Co. made a statement of account, as they believed, showing a true account of the affairs and dealings between them and the said Mendenhall to date, and forwarded the same to Fairfield by one of their agents and employes, C. W. Dean, to make settlement with said Mendenhall, and, as your petitioner is now informed and believes, said account stated showed a balance due to and in favor of the said Mendenhall in the sum of about eight hundred and fifty dollars, and that when said account so stated was presented to the said Mendenhall he claimed that he did not know just how the account between said parties and himself did stand; that his book-keeper was unable to then attend to the inspection of his (Mendenhall's) books, but that they would settle by the statement rendered by the said H., K. & Co., and that when any mistake or error was discovered, if any should be found upon inspection and adjustment by his book-keeper, it should be adjusted, and that he received from and accepted the said sum of about eight hundred and fifty dollars and retained the same, and through his legal representatives still retains the same though in truth and in fact there was not eight hundred and fifty dollars, nor but a small amount, if anything, due from said firm to the said Mendenhall at the time of settlement.

"2. And your petitioner further shows that the said Mendenhall soon after the payment of said sum to him, did cause his books of account against the said Higgins, Kelley & Co. to be footed up and examined, and was informed and well knew that a mistake had been made in the account rendered, and notwithstanding his full knowledge of the fact he still kept said sum, and fraudulently concealed the fact from the said H., K. & Co., in fraud of their rights, that he had received more than eight hundred dollars above his dues.

"3. And still further your petitioner shows that the said C. W Dean, agent of said firm of H., K. & Co., left with the said Mendenhall the said statement of account rendered as aforesaid, and that in the great fire of 1871 in Chicago all of the books, papers and accounts of every description belonging to the said firm were destroyed, so that they have not, nor has your petitioner, who was a member of said firm any books, papers or statement of account, in any form, to show how the matter actually stood between the said firm and Mendenhall, so that he cannot attach any statement of account hereto.

"4. That the firm of Higgins, Kelley & Co. was dissolved in the year 1865, after the settlement of account above referred to was made, and that upon said dissolution all the rights, claims and assets of said firm were assigned to him by written statement, which assignment was also destroyed by said fire, with the other papers as aforesaid, and that he is now the owner of the claim herein set out and stated, and which has been presented to the defendant for allowance.

"5. And further shows that the said Daniel Mendenhall has departed this life, and that the defendant, Susannah Mendenhall, is the qualified and acting executrix of his last will and testament, and as such has charge and control of the books containing the accounts between the deceased and the firm of Higgins, Kelley & Co., and also has the account stated and rendered by them to him, the deceased, and upon which said settlement was made, which together will show the mistake complained of, and the fraudulent act of the deceased in withholding the knowledge of the mistake and overpayment of the said eight hundred and fifty dollars, or thereabouts, to him, and that the evidence to show these facts is in the possession and under the control of the defendant, and not within the reach of your petitioner.

"6. And further petitioner shows that neither he nor any member of said firm of H., K. & Co. knew of the mistake made in the account rendered prior to October 1, 1874, and that the same came to the knowledge of your petitioner in the month of November, 1874, but that the said Mendenhall fraudulently and purposely concealed the facts, and kept and fraudulently retained the said money of your petitioner, as aforesaid, in betrayal of the trust that resulted to your petitioner by and through said transaction.

"7. And further your petitioner shows that before the filing of the claim herein your petitioner made due demand upon the said defendant, as the executor aforesaid, for said money, and terminated the said trust.

"Wherefore your petitioner shows that he is without remedy at law, that he has no data whatever whereby he can ascertain and state the exact amount of the overpayment, mistake and accident made in the settlement of account between the said firm and Mendenhall; that the same is in the hands of the defendant and under her...