Ingold v. Symonds
| Decision Date | 07 May 1907 |
| Citation | 111 N.W. 802,134 Iowa 206 |
| Parties | J. M. INGOLD, Appellant, v. BURT SYMONDS and ETTA J. SYMONDS |
| Court | Iowa Supreme Court |
Appeal from Cedar Rapids Superior Court.--HON. J. H. ROTHROCK Judge.
SUIT at law to recover a commission alleged to be due for procuring a purchaser for the defendants' land. There was a directed verdict for the defendants, and from a judgment thereon the plaintiff appeals.
Affirmed.
Lewis Heins, for appellant.
Redmond & Stewart, for appellees.
This is the second appeal in this case. The opinion on the first appeal is reported in 125 Iowa 82, where a sufficient statement of the facts may be found. After the case went back for retrial the plaintiff amended his pleadings by alleging that the sale made by the defendants was made by an auctioneer at a public sale, acting as the defendants' agent, and that by selling through such agent the defendants had breached their contract exclusively authorizing the plaintiff to procure a purchaser within a certain time. On the former appeal we held that, while the plaintiff's contract gave him the exclusive right to find a purchaser for the property, the defendants had the right to make the sale thereof themselves, and we reversed the case because of an instruction of the trial court directing the jury to the contrary. The facts appearing in the first trial as well as in this one, and they are not denied, are that, after the defendants had executed the contract of agency with the plaintiff, they advertised the sale of the farm and personal property at auction. They procured auctioneers to do the selling for them, and the land in question was, in fact, sold at public vendue by one of these auctioneers, and one of the questions presented by the appeal is whether the defendants had the right to so sell their land in view of their contract with the plaintiff. However, we deem this question of minor importance in this particular instance, because of the attitude of the plaintiff upon the first trial of the case. He was present at the sale of the land, and, of course, knew the manner of its sale and the instrumentality employed by the defendants to effect the same before he commenced this action; yet in his original pleadings, being the ones upon which the case was first tried, no claim was made that there had been a breach of the contract because of a sale of the property through another agent, and the former trial, both in the district court and on appeal to this court, was conducted along the lines we have indicated. It is a well-settled legal principle that a party to litigation may not split his causes of action and try a case by piecemeal in other words, he may not present one branch of his case for the determination of the court, and, when unsuccessful therein, begin over again presenting some other matter upon which he relies which might have been presented and determined theretofore. The law will not tolerate the multiplicity of suits growing out of such practice, but requires a party to present his entire claim or demand in one action, and, if he fails to do so, but chooses rather to take his chances on a presentation of a part thereof, he is estopped from...
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