Kassing v. Walter

• Decision Date: 22 January 1896
• Citation: 65 N.W. 832
• Parties: KASSING v. WALTER ET AL. (ORDWAY, INTERVENER).
• Court: Iowa Supreme Court

65 N.W. 832

KASSING

v.WALTER ET AL. (ORDWAY, INTERVENER).

Supreme Court of Iowa.

Jan. 22, 1896.

Appeal from district court, Monona county; A. Van Wagenen, Judge.

Action at law to recover $568.46 for corn sold and delivered to the defendants. Defendants answered, admitting the purchase of the corn, the value alleged, and that the same was not paid for. They alleged that W. W. Ordway claims said corn under a landlord's lien and certain chattel mortgages, and that they are unable to determine who is entitled to the amount due therefor, and, therefore, bring the same into court for the party entitled thereto. W. W. Ordway intervened, filing his petition in five counts, alleging, in substance, as follows: First, that he leased the premises on which said corn was grown to the plaintiff for the rental of $240, for which plaintiff, on March 16, 1893, executed his promissory note due January 1, 1894, which is wholly unpaid, and that he is entitled to recover thereon $259 for the rent of said land for the year 1893. In the second count he alleges: That on December 23, 1889, plaintiff executed to him his promissory note for $240, due December 23, 1890; one for $110, due June 23, 1890; and on October 31, 1892, one for $10, due December 1, 1892. That he executed to intervener a chattel mortgage upon all the crops on said leased premises, and that no part of said notes has been paid, except a portion of the interest, as shown by indorsements thereon, and that there are $449.60 due to intervener thereon. In the third count he alleges the execution, April 29, 1893, of a note for $30, due December 1, 1893, and a chattel mortgage on 200 bushels of corn, to be grown on said premises, to secure the same; that there is due $32.10 on said note. In the fourth count he alleges the execution by plaintiff, to him, of another chattel mortgage on certain property, not including said corn, to secure the payment of said note for $110 and said note for $240, due December 23, 1890. In the fifth count he asked to recover $23.75 damages because of plaintiff's failure to do certain plowing as he agreed to do in the lease for said premises. Intervener asks judgment against the defendants for the value of said corn, and against the plaintiff for $764.45, with interest and attorney's fees, the same to be credited with the amount of judgment against the defendants when paid. The plaintiff, in answering said petition of intervention, denies that there is more than $240 due on the note mentioned in the first count, and alleges that he paid to intervener the 800 bushels of corn mentioned in said lease. He denies that he executed the mortgage described in the second count to secure the payment of $360 indebtedness, as claimed, but avers that it was to secure the rent under said lease. He denies that the indorsement made on the $240 note of December 23, 1889, was made with his knowledge, and alleges that he paid $70 on said note. He denies knowledge of the indorsement made on said $110 note, and alleges that he paid thereon, by the sale of hay, $55. He avers that the $10 note was made without consideration, and that at the time he executed said $30 note he received only $25 as consideration therefor, and that the additional $5 was added as usury. Plaintiff alleges, by way of a counterclaim, that appellant failed to furnish him for his use a certain house included in said lease, to the damage of the plaintiff $120; that he sold and delivered to appellant $26.13 worth of brick; that he performed 46 days' work and labor for appellant, of the value of $69; that he took care of appellant's son during sickness for a period of 21 days, which service was worth $105; that he worked for appellant 33 days in building fences, etc., to the value of $49.50; that said $240 note, of date December 23, 1889, and said $110 note were executed for borrowed money; that plaintiff received only $290.09 in consideration therefor; that plaintiff paid the interest on said notes, when it was orally agreed that he should have the use of the money at 8 per cent.; and that there is due to him, by reason of the payments upon said notes, and for the work and labor, and damages aforesaid, $494.63. Plaintiff admits that he is indebted to intervener in the sum of $180, and consents that said sum may be paid to him out of the money brought into court by the defendants, if intervener will accept the same in full payment. Intervener, in reply, admits the purchase of hay, but denies that it was of the value of $55, and that it was to be credited upon the $110 note. He alleges that it was fully paid for at the time of delivery. He denies that the barn and house, for the use of which plaintiff claims damages, were included in said lease. He admits the purchase of bricks, but alleges that the same were fully paid for at the time of the purchase. He admits that plaintiff performed labor in taking care of intervener's son, and other labor, but alleges that the same was fully paid for at the time. He denies that plaintiff ever made any payments on the notes set out in the petition of intervention. Intervener's motion to transfer the cause to equity was overruled, and the cause was tried to a jury, which returned a verdict in favor of intervener for $218.31, and in favor of the school fund for $80.36, and judgment was entered upon the verdict, from which intervener, W. W. Ordway, appeals. Affirmed.Charles Mackenzie and T. B. Lutz, for appellant.

McMillan & Kindell, for appellee.

GIVEN, J.

1. Appellant discusses, in his argument, in separate paragraphs, 39 assignments of error, 15 of which are addressed to complaints made against the instructions. We should not extend this opinion to the length required to consider each error separately, but we will proceed to consider them, grouping such of the assignments under one head as may be properly so considered. Appellant's first complaint is of the...