Jordan v. Markham
| Decision Date | 18 May 1906 |
| Citation | 107 N.W. 613,130 Iowa 546 |
| Parties | F. E. JORDAN, Appellee, v. F. M. MARKHAM, Appellant |
| Court | Iowa Supreme Court |
Appeal from Mitchell District Court.--HON. CLIFFORD P. SMITH, Judge.
THE action is in equity, and the opinion states the case. From a decree in favor of plaintiff, defendant appeals.
Affirmed.
Salisbury & Graves, and Mears & Lovejoy, for appellant.
Eaton & Salisbury, for appellee.
The plaintiff sues as assignee of her husband, William Jordan and all parties live at Osage, Mitchell county. It appears that defendant was engaged to some extent in dealing in western lands, and on the occasion of a trip to Montana, he learned of a body of land--thirteen sections in extent--in that state, which was held for sale by one Lanterman, a banker at Mandan, N. D. He went to see Lanterman, and this resulted in an arrangement by which defendant was authorized to find a purchaser for the land at $ 3.50 per acre, out of which he was to receive fifty cents per acre, as commission for his services. Upon returning to Osage, defendant sought to interest divers persons in a purchase of the lands, among others being William Jordan. Soon thereafter defendant and Jordan went out to look over the land, and before their return they entered into a contract with Lanterman for the purchase of the entire tract at $ 3.50 per acre. At the time thereof there was paid to Lanterman by Jordan $ 2,400, and by defendant $ 1,600. Upon reaching home an agreement was entered into for a division of the lands by which Jordan and Markham were to take four sections each, and five other persons who came into the deal one section each. Thereafter Jordan paid to defendant on account of the contract the further sum of $ 3,747.50, and, of this amount defendant retained and appropriated to his own use the sum of $ 1,280--being fifty cents per acre on four sections--and remitted the balance to Lanterman. This action is brought for an accounting and to recover back the amount so appropriated by defendant to his own use. The decree entered by the court below awarded to plaintiff the relief prayed for.
I. First, in order, it is a contention of appellant that the decree should be reversed, for that the assignment of the cause of action to plaintiff, as alleged in the petition, was denied by answer and proof of such assignment was not made on the trial. Looking first to the pleadings, the petition asserts an assignment in writing, and a copy thereof is set out. The answer denies all allegations of the petition not expressly admitted, and later declares that as to the alleged assignment defendant has not sufficient information to form a belief, and he, therefore denies. The writing was not introduced in evidence, and the record fails to disclose that reference in terms to the subject-matter was made in the testimony. But in no other way than by pleading was it suggested to the court that the action was not well brought in the name of plaintiff, and it is apparent that the trial proceeded to a close upon the theory that she sued by right. As far as appears, therefore, the question is made in this court for the first time. But aside from this, the subject is of interest to defendant only in the sense that the result of the trial shall be binding upon William Jordan, and, if, at the close of the evidence, he had any doubts, proper practice required of him that he at once direct the attention of the court to the...
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