Klassie v. Holt
| Decision Date | 27 July 1943 |
| Docket Number | 46168. |
| Citation | 10 N.W.2d 540,233 Iowa 826 |
| Parties | KLASSIE v. HOLT. |
| Court | Iowa Supreme Court |
D. M. Kelleher, of Fort Dodge, for appellant.
Garfield & Baker, of Humboldt, for appellee.
Plaintiff brought suit in equity against defendant on a note and contract given in the sale of a Chevrolet pickup truck to defendant on April 13, 1940. The note had one installment overdue and plaintiff sued on the whole note and asked judgment for the sum of $322.31 with interest from January 30, 1941, and for a foreclosure of the sales contract.
Defendant by answer admitted the making of the note and contract sued upon but denied that the note was due by acceleration. By cross-petition defendant alleged that on September 28, 1937 plaintiff was the owner of an implement business in Bode Iowa, which operated under the name of Larson Implement Company, with one, E. L. Larson, in charge and acting with and in behalf of plaintiff, and on that date a contract was there entered into whereby one Pete Dulack purchased for future delivery a new Allis-Chalmers tractor for the gross price of $826. In said transaction there was a trade-in of a used John Deere tractor, a cultivator, planter a payment of $126 in money and the balance of $300 was to be paid by a note of Dulack when the tractor was delivered. Cross-petitioner alleges that said Allis-Chalmers tractor was not delivered at the time agreed upon. About March 1, 1938, Dulack assigned to cross-petitioner the tractor contract; that before and after said assignment demand had been made upon plaintiff to deliver the tractor but that said demand had been refused and Dulack had been damaged thereby in the amount of $526, and nothing had been paid thereon except a credit of $150 extended to cross-petitioner in a transaction with plaintiff and that the $150 was to be applied on said amount; that after allowing said credit and the claim of plaintiff there was due and owing cross-petitioner a sum of $137.61 in excess of the amount of the claim of plaintiff.
In reply plaintiff alleged that E. L. Larson was in business for himself in Bode, Iowa, on September 28, 1937, under the name of Larson Implement Company; that he had on hand at various times some of plaintiff's goods on consignment and he took and submitted orders to plaintiff for approval but denied taking any part therein; that as to whether or not Larson made out the sale agreement with Dulack he had neither information nor belief and denied the same; denied that same was made under his direction or consent, or that he in any manner accepted the same. He further alleged that any such deal was between Larson and Dulack and that he had nothing to do therewith.
Plaintiff admits that he did not deliver the tractor to Dulack, denies that he ever so promised or that he was under obligation to do so. Plaintiff admits that subsequent to the execution of the note in suit, cross-petitioner made some claim under the assignment but that this was after there was a delinquent installment. Plaintiff denies that defendant ever received the $150 referred to in the cross-petition and further alleges that all claims between defendant and Larson growing out of the tractor sale had been settled. Plaintiff further pleads that about April 13, 1940, Larson paid for defendant on the original price of the pickup truck the sum of $150 and on the same date gave defendant a note for $165 and that said note and cash was a full settlement of all claims of the defendant for the things claimed by him in his cross-petition, and that thereby he had waived any and all claims against the plaintiff. Plaintiff further alleges that in executing the note sued upon the defendant waived all claims against plaintiff for the matters set out in his cross-petition.
Defendant, answering said reply and amendments, alleges that the $165 note was not delivered or accepted as a final settlement and denies any waiver of his claim against plaintiff, but alleges that such note was signed and retained upon condition that subsequently maturing payments for the pickup would be paid by others than Holt; and that the $165 note was only conditional and a memorandum of contract and sale.
Defendant pleads that there was then due from Klassie $526 with a credit of $150 leaving $376, plus interest; that there was no consideration for settlement of said obligation of $165 and further states that as Klassie was not a party to said $165 note he cannot plead it as a settlement, and further alleges that Klassie was liable for $526 and interest and that there was no accord and satisfaction as to any part thereof except the sum of $150.
The court dismissed the cross-petition or counter-claim and entered judgment in favor of plaintiff against Holt and ordered a foreclosure on the conditional sales contract. The cross-petitioner appeals.
The appellant admits that on April 13, 1940, he purchased of appellee a pickup truck and in settlement therefor gave to appellee the note and sales contract sued upon. In effect he concedes that appellee is entitled to recover except for the matters set forth in his cross-petition. This claim arises out of an order for a new Allis-Chalmers tractor given by Pete Dulack to the Larson Implement Company of Bode, Iowa, on September 28, 1937. The tractor ordered was never delivered. In March or April, 1938, Dulack assigned to appellant his claim for the failure to deliver the tractor ordered. This was about two years prior to the time the pickup truck was sold by appellee to appellant. Larson had failed in business sometime before the note sued upon was given.
In taking the assignment appellant stands in place of Dulack and his rights are no higher than those of his assignor. Fred Miller Brewing Co. v. Hansen, 104 Iowa 307, 73 N.W. 827; Arnd v. Grell, 200 Iowa 1272, 206 N.W. 613. When Dulack signed the order for the tractor on September 28, 1937, he made the deal with E. L. Larson of the Larson Implement Company of Bode. The order for a new tractor was at the agreed gross price of $826. He paid $126 in money and traded in used implements at the agreed value of $400, and was to give a note for $300 when the tractor was delivered. Appellee lived at Renwick, Iowa, where he was engaged in the implement business. Dulack did not deal with appellee, having all his negotiations with Larson. It is the claim of appellant that appellee and Larson were acting together in the deal and that Larson was the agent of appellee with express authority to make deals like the one made with Dulack. In short, appellant claims that in the particular deal with Dulack, Larson was the agent of appellee.
Dulack never met appellee until the trial. When he decided to buy a new tractor he went to Bode to see Larson. Appellee had the agency for the Allis-Chalmers tractors handled by Larson at Bode. When Larson had a purchaser for an Allis-Chalmers tractor he would order it through appellee and the latter would furnish it to him. At times Larson had with his stock of implements some belonging to appellee and some belonging to others. Larson carried samples or models of the Allis-Chalmers tractors. Dulack testified that when he went to Larson to order the new tractor Larson said: He further testified that he went to Bode the next day and Larson said: Objection was lodged against this testimony as not binding and an attempt to establish agency by the declarations of the claimed agent. We think the objection good. Appellant claimed that Larson was the agent of appellee. It is elementary that an agency may not be shown by the declarations of a claimed agent. Anderson v. Patten, 157 Iowa 23, 137 N.W. 1050; Engelke v. Drager, 213 Iowa 598, 239 N.W. 569; Iowa Loan & Trust Co. v. Seaman, 203 Iowa 310 210 N.W. 937, 212 N.W. 487; Boylan v. Workman, 206 Iowa...
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