Jensen v. Booth Motor Co.
| Decision Date | 04 April 1944 |
| Docket Number | 46456. |
| Citation | 13 N.W.2d 681,234 Iowa 694 |
| Parties | JENSEN et al. v. BOOTH MOTOR CO. et al. |
| Court | Iowa Supreme Court |
White & White, of Harlan, for appellants.
Fred Louis, Jr., and Bennett Cullison, both of Harlan, for appellees.
Appellant Julius Jensen, is a son-in-law of Pete Hulsebus. Appellee secured judgment against Hulsebus, in March, 1941. In 1943 execution thereunder was levied upon a certain farm, and the livestock, machinery, grain and other property thereon. Originally, this was an action brought by Jensen, who held title to the farm, and Cless R. Kibby, who had contracted to buy the farm and had bought part of the personal property thereon, to enjoin the sale of the real estate under said execution. The issues involved in that part of the action are not involved in this appeal.
The phase of the controversy now under consideration had its inception in a counterclaim, filed by appellee, alleging that the farm and the personal property thereon, and the proceeds from the sale thereof, were the property of Hulsebus, taken and held in the name of Jensen to hinder, delay and defraud the creditors of Hulsebus, and praying that Jensen and Kibby be required to account for the property and credits of Hulsebus, held by them and for judgment therefor. Appellee pleaded, also, that the action was brought under Section 11815, Code of Iowa 1939, which provides for actions in equity by a judgment creditor against persons indebted to the judgment debtor or holding property or money in which the debtor has any interest, to subject the same or the interest of the debtor therein to the satisfaction of the judgment.
June 17 1943, appellee filed an amendment to its counterclaim, designated Count 2, alleging Jensen and Hulsebus had conducted a joint adventure or co-partnership which had been terminated by sale and that the interest of Hulsebus in the proceeds, which were held by Jensen, exceeded appellee's judgment. Appellee prayed judgment against Jensen in the amount of its judgment against Hulsebus.
Trial to the court resulted in judgment against Jensen in said amount, and this appeal. Although Kibby is designated as an appellant, he appears to be merely a nominal party to the appeal. It is undisputed that Hulsebus was involved financially and had no other money or property from which collection could be enforced by his creditors and that Jensen knew this.
I. The alleged joint adventure of Jensen and Hulsebus was in the ownership and operation of the farm. The record contains a detailed accounting of the farming operations and shows they yielded such net profits that, if Hulsebus was entitled to share therein, such share would substantially exceed appellee's judgment. Counsel for appellants do not question this. In oral argument counsel for appellee suggested that, in view of the amount of the profits from the farming operations, held by Jensen, they were willing to rely solely upon the interest of Hulsebus therein without taking into account the profit from the sale of the real estate. Hence, the issue may be narrowed to the question whether Hulsebus was a joint adventurer in the farming operations.
Appellants conceded there was an agreement between Jensen and Hulsebus relative to their operation of the farm as a joint adventure. Their position is that the joint enterprise was prospective, contingent, conditional "and never reached the stage of reality, but that all hope and thought of any joint business or enterprise by and between the said Julius Jensen and Pete Hulsebus was early abandoned ***."
They contend that Hulsebus had merely an option to join in the enterprise and that the option was never exercised. Jensen testified:
"I say that he (Hulsebus) was to have a half interest when he put in some money."
The agreement between Jensen and Hulsebus, concerning the operation of the farm was made shortly after the purchase of the farm in October, 1941. Operations, under the agreement, started in February, 1942. Hulsebus and Jensen called upon John Schram and hired him to work on the farm at $60 per month. Hulsebus testified:
Both parties made checks on the Hulsebus & Jensen account. By May 18, 1942, practically all the stock and equipment had been purchased. The indebtedness to the bank then was $2250. To secure this, Jensen gave the bank a chattel mortgage, in his own name, covering the personal property upon the farm.
Most of the machinery, livestock and equipment was bought by Hulsebus. Payments were made by checks drawn by Hulsebus, on the Hulsebus & Jensen account. Hulsebus testified he was not working for wages. He testified, also:
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