Kock v. Burgess
| Decision Date | 15 December 1914 |
| Docket Number | 29668 |
| Citation | 149 N.W. 858,167 Iowa 727 |
| Parties | JURGEN KOCK, Appellant, v. ERIC A. BURGESS, Appellee |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--HON. JOHN F. OLIVER, Judge.
APPEAL from a ruling on demurrer to a petition, which charged liability and damages for wrongful interference by defendant as to a contract between plaintiff and another.
Reversed.
Martin Neilan, for appellant.
Henderson & Fribourg and E. A. Burgess, for appellee.
OPINION
The essential averments of plaintiff's petition are as follows:
That in February, 1896, he purchased of the defendant a property known as the Reinhart Flats in Sioux City for $ 75,000, subject to an existing mortgage of $ 25,000, and to secure a part of the purchase price executed a second mortgage for $ 15,000. That in April, 1909, he sold a half interest in the flats to one John M. Kock, who in September 1910, reconveyed the same to plaintiff. In December, 1909 there being due $ 10,000 on the second mortgage, the defendant commenced foreclosure proceedings, and upon application a receiver was appointed, who acted until sheriff's deed was made, and who as to his duties was advised by the defendant, an attorney. Decree of foreclosure was entered, and sale under special execution was made on March 7, 1910, to one Hutchins; but plaintiff avers that the defendant was the real purchaser, and that sheriff's deed to the property was received by him in March, 1911. That on February 3, 1911, the plaintiff sold the flats and his redemption right to John M. Severson, by written contract and deed, under which contract Severson agreed to assume and pay the mortgages and liens before the time of redemption, and to secure possession of the flats within one week. By such agreement it is alleged that for paying off the liens Severson was to have and own one-half of the flats above $ 45,000, and the plaintiff was to be the owner of the other half; that the flats were to be operated by the parties for five years, and the profits were to be divided. If sold before that time for not less than $ 70,000, all in excess of $ 44,500 was to be equally divided between the parties. The deed to Severson was recorded on February 3, 1911.
On February 4th, while said flats were yet in the control of the receiver, for whom, as alleged, the defendant was then acting as attorney, the defendant was informed by Severson: That he had purchased the flats by the contract and deed, had recorded the latter, and requested of defendant the assignment of the sheriff's certificate of sale, that he might make redemption, and then requested the plaintiff to accept the amount necessary to redeem. That at such time and afterward the defendant, knowing that John M. Kock had entered into a contract to convey to plaintiff his half interest, with the intent to deceive Severson, and to prevent him from redeeming from the second mortgage, and with the intent to induce him to break the within contract with the plaintiff, willfully, maliciously, falsely, and wrongfully interfered, by then stating to Severson the following words:
Jurgen Kock does not own the Reinhart Flats property. John M. Kock claims a half interest in it; owns a deed for half of the property. Jurgen Kock owns only half the property. You, John M. Severson, under your contract and deed, have no right to redeem that property from the second mortgage foreclosure, and no right to an assignment of the sheriff's certificate of sale thereof. I own the certificate, but I will not assign it to you. The building is untenantable. It has very few tenants in there, who pay no rent. It has been used for immoral purposes (naming them). It is so dirty that it is not fit for hogs to live in. It cannot be rented because of its dirty and rotten condition. The boilers, steam plant, tanks, light plant, engines, machinery, plumbing, and fixtures are all worn out and worthless. The rent of the building does not pay expenses. It is running at a loss. Jurgen Kock is an old crook--a dishonest man--a man who never performs his contracts, and he will not perform and fulfill his said contract with you, and under the conditions of the title, the conditions of the building, it is your interest not to redeem said property from the foreclosure, and not to take an assignment of the sheriff's certificate of sale of the second mortgage which I have, and to go no further with that contract and deed, and to have nothing more to do with the above property and Jurgen Kock.
That the said statements were made without justification, were false, and made for the purpose of influencing Severson as above stated, and to advance the pecuniary interest of the defendant by preventing redemption. It is also charged that defendant and Severson conspired together to break the written contract, and not redeem. The petition avers that the fraud, deceit, and collusion charged caused Severson not to fulfill his contract, the right of redemption was lost, plaintiff was deprived of Severson as a buyer, lost five years' use of the part to be under his control by the terms of the contract, and lost his half interest in the property. He pleads that Severson on February 4, 1911, was ready, able, and willing to make redemption and fulfill his contract with the plaintiff, and that he would have done so, but for the wrongful act of the defendant, and that after that time the plaintiff was himself without means or ability to make redemption. He charges that it was the duty of defendant, as attorney for plaintiff and for the receiver, to assist in such redemption being made, and to assist Severson to comply with his contract. The rent of the property for five years from February 4, 1911, is alleged to be reasonably worth $ 5,000, and the property is alleged to have been reasonably worth $ 85,000 on that date, and that at the time action was commenced its value was $ 100,000, and plaintiff's half interest above $ 44,500 had the contract been fulfilled, was worth $ 20,000. He asserts actual damages of $ 25,000, and because of the wrong pleaded asks for treble damages.
To this petition a demurrer was filed, the first two divisions of which challenge its sufficiency in the stating of a cause of action, that it made no claim for special damages, and that the damages claimed are too remote and speculative. The third division of the demurrer is that the petition shows on its face that the alleged slanderous words were uttered after conveyance had been made to Severson, and at a time when plaintiff had an enforceable contract against Severson, and that plaintiff's remedy, if any, is...
To continue reading
Request your trial