Marr v. Burlington, C.R. & N.R. Co.

• Decision Date: 07 October 1903
• Citation: 96 N.W. 716,121 Iowa 117
• Parties: ELSIE MARR, Appellee, v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

96 N.W. 716

121 Iowa 117

ELSIE MARR, Appellee, v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

October 7, 1903

Appeal from Cedar Rapids Superior Court.--HON. JAMES H. ROTHROCK Judge.

ACTION to recover for breach of an alleged contract. The facts will be found stated in the opinion. At the close of the evidence for plaintiff the court, on motion, directed a verdict in favor of defendant. Thereafter a motion for new trial was made by plaintiff, and this was sustained. From the order granting new trial, defendant appeals. -- Affirmed.

AFFIRMED.

J. C Leonard and S. K. Tracy for appellant.

Rickel Crocker & Tourtellot and Wm. Chamberlin for appellee.

OPINION

BISHOP, C. J.

Plaintiff kept a boarding house or restaurant in Cedar Rapids, and her claim is, in substance, that in April, 1901, defendant, through its officers and agents, entered into a contract with her, by which defendant was to furnish her with at least sixty regular boarders, employes of defendant, for a period of at least six months, the defendant to pay to her the sum of $ 3.50 per week for each of such boarders. It is alleged that she consented to take such boarders at the price named, and did thereafter provide board for all the employes of defendant sent to her, but that the average number thereof did not exceed twenty, and that about June 13, 1901, defendant renounced and refused to further comply with the contract. Plaintiff says that the fair profit which she would have realized on each boarder would have been seventy-five cents per week. The answer is a general denial, and, in addition thereto, the statute of frauds, and a full settlement are pleaded. From the evidence introduced by plaintiff upon the trial the jury would have been warranted in finding the facts to be as follows: On April 28, 1901, certain of the officers of the defendant company came to plaintiff's restaurant, and requested her to take to board a lot of nonunion men whom the defendant company had brought in to take the place of its striking employes. Plaintiff objected, saying she was afraid to take the men, because they were nonunion men; that she would be talked about mean for having scabs, and that it would ruin her trade. Defendant's officers assured her that the railroad company would back her, and that, if she would take the men, they would fill her house with an average of sixty men, at least; that she could count on the arrangement lasting at least six months, and that the company would pay the board of all the men at the rate of $ 3.50 per week. To this she finally consented. The defendant furnished her and paid for an average of twenty men until June 13th, when it refused to carry out the arrangement any further. In the meantime all the other boarders of plaintiff left her, and, having no business, she was compelled to and did close up her house. That there would have been a profit on the business, had the arrangement been carried out, is not questioned.

Defendant says the order granting the new trial should be reversed, and judgment entered on the verdict, for reasons which we will now proceed to consider. It is said, in the first place, that the oral contract sued upon was within the statute of frauds there being no written or competent evidence to establish the same. The particular section of the statute relied upon is as follows: "Sec. 4625. Except when otherwise specially provided, no evidence of the following enumerated contracts is competent unless in writing and signed by the party charged, or by his authorized agent: * * * 3. Those wherein one person promises to answer for the...