Lindauer Bros. & Co. v. Hay

• Citation: 17 N.W. 98,61 Iowa 663
• Parties: LINDAUER BROS. & CO. v. HAY ET AL
• Decision Date: 17 October 1883
• Court: United States State Supreme Court of Iowa

17 N.W. 98

61 Iowa 663

LINDAUER BROS. & CO. v. HAY ET AL

Supreme Court of Iowa, Dubuque

October 17, 1883

Appeal from Black Hawk Circuit Court.

ACTION of replevin to recover specific goods and merchandise. Upon a verdict for plaintiff, a judgment was rendered, and defendants appeal. The facts of the case appear in the opinion.

AFFIRMED.

J. L Husted and C. W. Mullen, for appellants.

H Boies, for appellees.

OPINION

BECK, J.

I.

The petition of plaintiffs is in two counts. The first alleges that, on the 27th day of July, 1881, defendant Hay, being in the business of selling clothing at Waterloo, ordered the goods replevied, which belong to that line of trade, from plaintiffs who were doing business at Chicago. On the 29th of the same month, the order was accepted and filled, and the goods were shipped, and were received by Hay at Waterloo on the 5th of the following month. Before accepting the order plaintiffs sought information of Hay's financial responsibility from a commercial agency, to whom Hay had made a statement for the purpose of its being used to advise those of whom he made purchases of his true condition. Plaintiffs were advised by the agency of the substances of Hay's statement, which showed him to be solvent, and worth, above his debts, more than $ 19,000. The statement was made by Hay, January 17, 1880, and no other one was subsequently made to the agency. Upon the faith of the report so made by the commercial agency, plaintiffs sold Hay the goods. Plaintiffs allege, in substance, that at the time the goods were ordered and delivered, Hay was insolvent, and had knowledge of his condition as it stood upon the books of the commercial agency, and that plaintiffs would seek information thereof from that source, and that, when he purchased the goods, Hay intended to defraud plaintiffs, and intended not to pay them for the goods, and concealed from plaintiffs his true financial condition. On the 8th day of August, 1881, Hay made a general assignment of his property for the benefit of his creditors, to defendant, Conger, under which he took and holds possession of the goods. It is alleged that plaintiffs, upon the discovery of the fraud of Hay, rescinded the contract of sale, and notified both defendants thereof, and demanded the return of the goods. The second count of the petition alleges, in addition to averments of the sale and delivery of the goods, the assignment to Conger, and the rescission of the sale, and the demand for the return of the property, and that Hay ordered and received the goods with the fraudulent purpose of not paying for them, and, in order to accomplish such purpose, fraudulently concealed his insolvency from plaintiffs, of all which plaintiffs at the time had no knowledge or information. The action was commenced August 8, 1881. The defendants, answering the petition, admit the sale and delivery of the goods, the assignment to Conger, and the demand for the return by plaintiffs, but deny all allegations of fraud and concealment, upon which plaintiffs base their claims of right to rescind the contract of sale.

II. At the close of plaintiff's evidence, the defendant asked the court to withdraw the case from the jury and direct a verdict for defendants, upon the grounds: first, that there was no evidence tending to prove that Hay's statement made to the commercial agency was, when made, false, or that it was made with a fraudulent intent, in order to obtain credit to which he was not entitled; second, that there is no evidence to prove that Hay, when he purchased the goods, did not intend to pay for them. The motion was overruled, and the decision of the court is the ground of defendant's first complaint. The first ground of the motion is directed against evidence applicable to the first count of the petition. We are inclined to the opinion that it is not well taken. From a statement made by Hay as to his losses and business, reaching to a time anterior to the date of his statement, the jury could well have found that, when it was made, he was insolvent. But if there be doubt upon this point, there can be none that there is evidence supporting the verdict upon the issues presented by the second count of the petition, which we will now proceed to show.

III. The defendants insist that there was no evidence tending to show Hay's intention not to pay for the goods entertained when he purchased and received them. We are clearly of the opinion that there was such evidence submitted to the...