Lamp v. Lannegan, 34620.

• Decision Date: 23 June 1922
• Docket Number: No. 34620.,34620.
• Citation: 188 N.W. 982
• Parties: LAMP v. LANNEGAN.
• Court: Iowa Supreme Court

188 N.W. 982

LAMP

v.LANNEGAN.

No. 34620.

Supreme Court of Iowa.

June 23, 1922.

Appeal from District Court, Monona County; W. G. Sears, Judge.

Action on a note executed by defendant dated January 5, 1920, due in 60 days, for $1,296.43. Plaintiff and defendant had had dealings for some time prior to the execution of the note. Plaintiff claimed defendant was indebted to him for certain sums, but defendant claimed that she was entitled to certain credits for corn, hogs, and other things, on the indebtedness. Defendant was about to have a sale of her personal property to pay off a chattel mortgage given by her to a bank in Oto, upon which she had borrowed money to pay off a chattel mortgage which she had given to plaintiff. On the day of the sale, soon before the commencement, plaintiff's agent and son-in-law, appeared on the premises with a promissory note in the sum of $1,296.43, which he claimed the defendant and her son, and one Potter, were owing plaintiff. A settlement was demanded, and defendant claims that the agent threatened to stop the sale unless she signed the note. Defendant's claim, briefly stated, is that under such circumstances she executed the note and placed it in the hands of one Mak, in escrow, and not to be delivered to plaintiff until there was a settlement and she had been given proper credit for items claimed by her; that the credits were not all given, and the note was wrongfully delivered to plaintiff. Mak was the cashier of the Oto bank, and was to act as clerk of the sale. Later, and some months after the commencement of this suit, plaintiff amended his petition, alleging that defendant was about to convert her property, or a part thereof, into money, for the purpose of placing it beyond the reach of her creditors, and asked that a writ of attachment issue, which was done, and some $1,600 owing defendant from other parties was garnisheed. By answer and counterclaim, defendant asked credit for the items due her, also damages on the attachment bond. The case was tried to a jury, and a verdict returned in favor of defendant for $385.23, upon which judgment was entered against plaintiff. Four special interrogatories were answered by the jury: First, that they allowed plaintiff nothing on the note sued on; second, that the jury found for defendant on the various items claimed by her, as credits, and as an offset against said notes, $1,601.13; third, the jury found $80.53 actual damages for wrongful issuance of attachment; and, fourth, that they allowed nothing as exemplary damages. The $80.53, as we understand it, was for loss of interest on the money garnisheed. The difference between the amount of plaintiff's note and the items allowed defendant, represents the amount of the verdict in her favor. The plaintiff appeals. Affirmed.B. H. Morrison, of Mapleton, and C. E. Underhill, of Onawa, for appellant.

Prichard & Prichard, of Onawa, for appellee.

PER CURIAM.

1. The items for which defendant claimed credit, and as an offset against the note, were for corn sold by defendant's son, Harry Lannegan, to plaintiff, in March, 1916, nearly $400; cash paid plaintiff, $140, paid by Lannegan on the same date; hogs delivered to plaintiff in April, 1916, something over $300; balance due on corn sold and delivered to plaintiff by defendant in January, 1919, about $400; damages done by hogs, in the fall of 1918, $140. There is evidence tending to show that the claim made by plaintiff against defendant at the time or before the execution of the note was partly due from other persons, and there was a dispute as to the amount. Harry Lannegan was in the army in France for 19 months. A brother was also there, and before Harry went into the service he had some hogs which he left with his mother. Previous to that he had business relations with plaintiff, and had a settlement, or a partial settlement, leaving a balance of a small amount. Both the sons turned over their affairs to the mother to manage in their absence. Complaint is now made that the court, in the instructions, submitted to the jury the items of money paid by Harry Lannegan and corn and hogs delivered by him to plaintiff for his mother. But both sides concede that by common consent these matters were all threshed out in the trial of the case, and in the introduction of the evidence.

Many of the matters argued by appellant are settled by the verdict of the jury. There was a sharp conflict in the testimony as to whether the note was executed as contended by defendant. The testimony of the defendant herself, and her daughter and son, and others testifying on the subject, sustain the defendant's contention. Mr. Mak gives a somewhat different version of the transaction. He testifies, substantially, that it was agreed that, at the time the note was executed, it should be placed in his hands, and that he would go to the bank after the sale and see if Mr. Lamp had given her credit for some of the items she claimed credit for, and, if he found that she had been given credit, he was to deliver the note to Lamp; that he saw plaintiff after the sale, and told him of defendant's claim; they looked up the items which, according to his memory, were some of the items now in dispute; that he looked over plaintiff's books, and, while he did not understand the books, plaintiff showed him the accounts and debts, and he thought that was sufficient, and so turned the note over to plaintiff, and Lamp turned over to him quite a few notes and mortgages and releases for defendant. Other witnesses give evidence tending to sustain the contention of plaintiff. This is enough to show that on this proposition there was clearly a questionfor the jury. This is true, also, as to the items for which defendant claimed credit, and the amounts thereof.

[1] 2. Aside from the foregoing contested fact questions, the point seemingly most relied upon by appellant is the alleged misconduct of defendant's attorney in the opening statement, and in certain answers made by the defendant as a witness, and some of the other witnesses. One of the assignments of error is that the verdict is the result of prejudice and passion on the part of the jury. It occurs to us, in passing, that, had such a state of mind existed, the jury would have been likely to have allowed something for exemplary damages, having found that the attachment was wrongfully sued out. In his opening statement to the jury, counsel for defendant, after referring to the fact that plaintiff had amended his petition and sued out an attachment, explained what was necessary to allege to secure the writ, and stated that the charge made in plaintiff's petition was charging the defendant with a criminal act. Upon objection by counsel for plaintiff, the court stated that he thought the reference to criminal procedure was improper in an opening statement, and that the court would so hold. This was in the presence of the jury, and we must give the jury credit for good sense, and that they would understand that this was improper, and not to be considered by the jury. For myself, I do not believe our juries decide important cases on such remarks, or that they ignore the testimony introduced on the trial, and violate their oaths as jurors. Conceding that the remark was out of order, it was not inflammatory or such as to arouse the feeling in the minds of the jury. We have held that it is not enough to show misconduct, but that it must appear to be prejudicial. The trial court, sitting in the trial of this case, passed upon that question in overruling the motion for new trial. This circumstance has weight. It seems to us that no prejudice could have resulted from this statement.

[2][3] Another statement by counsel for defendant in the opening statement is now complained of, though we do not understand plaintiff to have made any objection thereto at the time. The statement was:

“To show the maliciousness of this plaintiff to this woman, I wish to go further, and refer to the treatment she has received at the hands of this plaintiff; that prior to the filing of this allegation, that she was about to dispose of her property to defraud her creditors, this plaintiff started a suit in Woodbury county against defendant.

Court: It is not proper, in making an opening statement, to make any reference to another suit brought in Woodbury county. (Exception.)”

It does not appear which party excepted to the ruling of the court. We assume it was the defendant. If it was by the plaintiff, the ruling of the court was in his favor. We are not so sure that there was any misconduct in this, or that the ruling of the trial court was correct. The question of malice was in the case in the counterclaim, wherein defendant was asking damages on the bond for the wrongful attachment. If the suit, was wrongfully and maliciously brought, it might have a bearing on the question of malice. White v. Book Co., 156 Iowa, 210, 219, 136 N. W. 121, 42 L. R. A. (N. S.) 346. The matter was not gone into far enough, so that we have any idea what the...