Kock v. Burgess

• Decision Date: 09 February 1916
• Docket Number: No. 30640.,30640.
• Citation: 176 Iowa 493,156 N.W. 174
• Parties: KOCK v. BURGESS.
• Court: Iowa Supreme Court

176 Iowa 493

156 N.W. 174

KOCK

v.BURGESS.

No. 30640.

Supreme Court of Iowa.

Feb. 9, 1916.

Appeal from District Court, Woodbury County; George Jepson, Judge.

Action to recover damages from defendant for breach of duty as an attorney; for falsely and maliciously inducing one Severson to break a contract which he (Severson) had with plaintiff and for a conspiracy to defraud plaintiff out of his property, or the proceeds thereof. Upon issues joined, the case was tried to a jury, resulting in a directed verdict for defendant, and plaintiff appeals. Affirmed.

See, also, 167 Iowa, 727, 149 N. W. 858.Sargent, Strong & Struble and Martin Neilan, all of Sioux City, for appellant.

Henderson & Fribourg, Fred H. Free, and E. A. Burgess, all of Sioux City, for appellee.

PER CURIAM.

This case has once been before this court upon an appeal from a ruling sustaining a demurrer to the plaintiff's petition. See 167 Iowa, 727, 149 N. W. 858. Another branch of the case was also before us, and the opinion filed therein will be found in 159 Iowa, 343, 140 N. W. 220, in an action entitled Severson v. Kock. The first of these cases states the nature of plaintiff's petition. After remand of that case, defendant filed an answer in which he denied practically all the material allegations of the petition, and also pleaded that he (plaintiff) was not damaged by anything in defendant's conduct, whatever it may have been, and that his contract with Severson was voidable because of his (plaintiff's) false and fraudulent representations to Severson regarding the subject-matter of the contract, and that said contract was set aside and held for naught in an action brought by Severson against the plaintiff, which action was appealed to this court and here affirmed. It was further alleged that, as this contract was avoided and set aside because of plaintiff's own fraud, plaintiff suffered no damage from anything the defendant did or omitted to do, but that, whatever the wrong, plaintiff cannot now assert that but for this wrong Severson would have complied with his contract. Defendant also pleaded that by the decree in the Severson Case it was found that the contract between plaintiff and Severson was mutually rescinded before the time for the performance thereof had expired, and that by reason of this fact plaintiff suffered no damages from anything defendant did or failed to do. Reference was made, in this connection, to the opinion of this court in Severson's Case, supra. In reply, plaintiff pleaded many conclusions of law and of fact, the purport of which were that the defendant cannot rely upon the decree in Severson's Case, supra, because he was not a party thereto, and that by his conduct defendant has estopped himself from asserting that the decree in Severson's Case was or is binding for the reason that in other proceedings defendant assented to the validity of the contract and claimed that plaintiff's only remedy was by action against Severson on his contract. The law of the case, accepting the allegations of plaintiff's petition to be true, is announced in the opinion filed on the former appeal, and on this appeal we have but two questions for our consideration: First, did plaintiff introduce enough testimony to take the case to the jury upon the issues of fact presented by defendant's denial of the allegations of the petition; second, does the decree in the Severson Case, which was introduced upon this trial and which was not attacked in any manner, conclude the plaintiff and deprive him of a right to recover on the theory that he never had a valid and subsisting contract with Severson for the redemption of the property from foreclosure sale? It may be observed, in this connection, that the case is argued to some extent on the theory that defendant should be charged as an attorney and trustee for the plaintiff, and, notwithstanding the fact that he now holds a sheriff's deed, he should be decreed to hold the title in trust for plaintiff, subject to whatever valid claims he may have against it. The allegations of the petition are not broad enough to make such a case.

[1] It may be conceded that defendant was an owner, or part owner, of the second mortgage upon which the foreclosure was based in which action a receiver was appointed; that he became the attorney of the receiver and acted for him; that he was at all times the equitable, if not the legal, owner of the certificate of sale issued by the sheriff after sale on execution, and became the legal owner before the equity of redemption expired, and that he refused to permit Severson to make redemption after...