Howes v. Sutton
| Decision Date | 19 June 1936 |
| Docket Number | 43478. |
| Citation | 268 N.W. 164,221 Iowa 1326 |
| Parties | HOWES v. SUTTON. |
| Court | Iowa Supreme Court |
Appeal from District Court, Clinton County; John E. Purcell, Judge.
Action for an accounting. Defendant ordered to account, and appeals to this court. Affirmed and remanded for accounting.
Affirmed.
E. C Halbach and M. L. Sutton, both of Clinton, for appellant.
Miller & Claussen, of Clinton, for appellee.
R. N Howes, Sr., appellee in this case, brought suit for an accounting from L. F. Sutton, an attorney at Clinton, Iowa and appellant herein, on dealings with said Sutton since 1916. The facts show that Mary Lou Howes transferred all her right, title, and interest in 320 acres of land, more or less, situated in Alberta, Canada, to the defendant, Sutton, who made a written agreement to pay to Mary Lou Howes one-half of all he received as profit on the said 320 acres, and to cancel a second mortgage he held. On May 3, 1919, Mary Lou Howes assigned this contract to Frank B. Howes, and on September 7, 1933, Frank B. Howes assigned the contract to the appellee herein, R. N. Howes, Sr.
This action was commenced some time in 1934, about eighteen years after the execution of the instrument to Mary Lou Howes by Sutton. The petition as finally amended alleged the transfer of title in the Canada land to the defendant, Sutton, and alleged that Sutton received about $8,000 and interest thereon at 5 per cent. until final payment was made in 1929 or 1930; that the defendant concealed the facts concerning said transaction and sale, intending to defraud plaintiff. The prayer of the petition of plaintiff asked that the defendant be required to account for the proceeds received from the sale of the land involved; that he be given judgment for any amount found to be due plaintiff, and for general relief.
After several motions were passed upon, defendant filed an answer containing a general denial; but admitted the execution of the instrument dated August 15, 1916, the conveyance of the land by Mary Lou Howes to the defendant, and the sale of the real estate under contract on or about the 20th of April, 1917. He alleged he loaned the plaintiff $567 to enable him to stay foreclosure proceedings against said real estate in the Province of Alberta, Canada, and that the payment of this was secured by second mortgage on the homestead of plaintiff and his wife in Clinton, Iowa, and that by reason thereof the defendant was induced to go to Canada to carry out the plan. The defendant also alleged that at the time of the execution of the agreement herein referred to, the plaintiff represented that said Canada land was subject only to an encumbrance of $2,500 and interest since December 1, 1916; that the same had 3 miles of fencing; that 220 acres thereof were broken and under cultivation; and that relying on such representations said defendant executed the instrument, and on the 16th day of August, 1916, set out for Calgary, Canada. That such representations were false and were made for the purpose of inducing the defendant to make the agreement of August 15, 1916, and that in fact the property was subject to a claim in excess of $2,500, and there was interest due from the 1st of December, 1916, on the mortgage, school taxes in the sum of $115.10, wild land taxes $23.60, and that the land was uncultivated, had been allowed to go back, and that by reason of such representations the execution of the instrument sued on was procured through the practice of fraud and deceit. The defendant also alleged that on his return from Canada, on or about September 1, 1916, he reported conditions to the plaintiff, that the best offer he had received on said property was the sum of $2,200 on contract, payable each year out of the proceeds derived from one-half of the crop, and that he was unable to rent the land unless he allowed the renter the sum of $3.50 per acre for breaking it. He alleged that thereupon Mary Lou Howes accepted the surrender of the second mortgage $637, held by defendant against the Clinton, Iowa, property of plaintiff, and that defendant assumed the payment of taxes and mortgage on the land in full payment for such conveyance. Defendant pleaded that at no time since his return from Canada had Mary Lou Howes, Frank B. Howes, or R. N. Howes, Sr., made any demand on said defendant for the execution of the contract agreeing to pay Mary Lou Howes one-half of any profit he might make on the sale of said Canada land, although said plaintiff, R. N. Howes, Sr., was advised at the time of the sale of said real estate in April, 1917; that by reason thereof any claim the plaintiff may have acquired through the alleged assignments is now barred by the statute of limitations (Code 1935, § 11007), and said plaintiff is estopped by reason of laches on account of his or his assign's failure to make such demand for the execution of a contract agreeing to pay one-half of the profits. Such were the issues upon which the case was tried.
The testimony in the case is not very satisfactory, but it is sufficient to show that Sutton went to Canada very shortly after August 15, 1916; that Sutton advanced $567 to the plaintiff for the purpose of preventing foreclosure under the land mortgage, and that Howes, Sr., had not asked for an accounting before his wife died in 1919, although he found out about the sale to Simpson before that. Howes also testified that Sutton gave him $250 in 1919 and he took his wife to Rochester. He could not say how long it was before he next said anything to Sutton. Plaintiff also testified that he talked with the defendant in the 20's, spoke to him a good many times during that time, and that the first time defendant absolutely refused to do anything was in 1933.
Simpson, who purchased the land of defendant, lived in Ontario, Canada; he testified he was acquainted with Mr. Sutton, and met him at the time he signed the contract for the Howes land, which was on the 20th of April, 1917. On November 7, 1927, Sutton wrote a letter to Simpson, the purchaser of the Canada land, saying:
The testimony shows that Sutton had a contract for the land selling it at $8,000 on the crop payment plan. That as late as November...
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