Homire v. Rodgers

• Decision Date: 11 May 1888
• Citation: 37 N.W. 972,74 Iowa 395
• Parties: HOMIRE v. RODGERS.
• Court: Iowa Supreme Court

74 Iowa 395

37 N.W. 972

HOMIRE

v.RODGERS.

Supreme Court of Iowa.

May 11, 1888.

Appeal from district court, Adair county; J. H. HENDERSON, Judge.

Action for money had and received, brought by William Homire, as administrator of Fred Kracke, against W. M. Rodgers. Verdict and judgment for plaintiff. Defendant appeals.Gow & Hager, for appellant.

D. W. Church, for appellee.

REED, J.

It is alleged in the petition that plaintiff's intestate received into his possession in May, 1882, about 260 head of cattle belonging to other parties, which he undertook to herd during the season for the price of 40 cents each per month; that he afterwards, on the 9th of July, contracted with defendant for pasturage for said cattle, and, in pursuance of such contract, turned them into defendant's inclosed pasture, where they remained until the end of the season; that, when the owners applied to defendant for their cattle, he represented to them that, under his contract with the intestate, he was to receive $2 per head for the pasturage of the cattle for the time they were in his pasture, and asserted a lien on the cattle for that amount; and that the owners, relying on that statement, paid to him the amount demanded, which was the sum due to the intestate from the owners for herding and caring for the cattle during the whole season; and that the amount so demanded and collected by defendant was in excess of the amount due him under his contract with the intestate; and the prayer is for judgment for the amount of such excess. On the trial the only contested question of fact was whether, under the contract between the intestate and defendant, the latter was to be paid $2 per head for the pasturage of the cattle for the time they were in his inclosure, or at the rate of $2 per head for the season, which would be 40 cents a month.

1. Defendant moved in arrest of judgment, the grounds of the motion being that no cause of action is stated in the petition, in this: that it is not alleged either that the statement made by defendant to the owners of the cattle as to the amount that was due him under the contract was false, or that anything was due to the intestate from the owners, under their agreement, when the payments were made to defendant. We are of the opinion that the motion was properly overruled. The amount of money received by defendant, as shown by the petition, was $408, and it is alleged that the amount due him, under the contract, was but $277.56. Now, while it is not expressly averred that his statement as to the amount which was due him was false, the falsity of the statement is shown by these averments as to the amount claimed and the amount actually due. The falsity of a statement or representation may be pleaded either by an express averment, or by a statement of facts showing that it is false. It is not expressly averred that anything remained due the intestate from the owners of the cattle when they made the payments to defendant; but it is averred that they agreed to pay him 40 cents per month for the pasturage of each animal, and that the cattle were pastured during the season under that contract, and that the money was paid over to defendant in pursuance...