Marshall v. Westrope

• Decision Date: 18 May 1896
• Citation: 98 Iowa 324,67 N.W. 257
• Parties: MARSHALL ET AL. v. WESTROPE.
• Court: Iowa Supreme Court

98 Iowa 324

67 N.W. 257

MARSHALL ET AL.

v.WESTROPE.

Supreme Court of Iowa.

May 18, 1896.

Appeal from district court, Shelby county; A. B. Thornell, Judge.

Suit in equity to reform a contract of assignment of certain accounts made by defendant to plaintiffs, and to recover on the contract so reformed the sum of $270, being the value of certain machinery delivered by plaintiffs to defendant in consideration of the assignment. The defendant admitted the receipt of the machinery, the assignment of the accounts, and a certain modification of the contract of assignment, but denied each and every other claim of plaintiffs. He also pleaded an election of remedies on the part of plaintiffs, by which they confirmed and elected to stand on the original contract as made. There was a trial to the court, and judgment and decree for plaintiffs. Defendant appeals. Reversed.Smith & Cullison, for appellant.

Nash, Phelps & Mosier, for appellees.

DEEMER, J.

In the year 1891, plaintiffs, a copartnership, were engaged in selling farm machinery at the town of Audubon. Defendant had for a number of years prior thereto been managing and conducting a farm in Audubon county for his father. On or about March 1st, he moved onto a farm of his own, in Shelby county, intending to cultivate it for his own use and benefit. Desirous of purchasing some farm implements, he visited plaintiffs' place of business, with the avowed intention of securing the same. It appears that the defendant was the owner of a stallion, which was “stood” for the season of 1890 in Montgomery or Cass counties, by an agent of defendant, under an arrangement by which the parties who received the services of the stallion were to pay a certain amount therefor in the event the mares bred to him were got with foal; otherwise, nothing should be paid. The defendant was the owner of certain claims for services resulting from the use of the stallion, which he proposed to transfer to plaintiffs for the farm machinery he desired to purchase. No agreement was reached at the first interview, but it was arranged that defendant should see if he could purchase the machinery of some other person at a lower price, and, if not, it was supposed that the negotiations would be renewed. About March 27th, the defendant wrote plaintiffs a letter of which the following is a copy: “Marshall & Sharp: I can make the trade in Harlan, but they are not so low in price as you are. Jones would not make the price he stated and furnish the goods he named. Inclosed find assignment for same. Please sign and date, and keep one, and send me one, and let me know by return mail, because I will want to know at once if the deal is closed. I would come over, but my house burned to the ground last Saturday night, and I cannot leave. Very truly, O. D. Westrope.” In this letter was inclosed a contract for the plaintiffs' signature, the material parts of which are as follows: After stating that plaintiffs had sold certain machinery to defendant, it recites: “That, as payment therefor, the said O. D. Westrope enters into and does hereby assign and transfer to said Marshall & Sharp the following accounts for services of the stallion named General Duke, in the year 1890, to wit: [Here follows a list of the accounts, with the amounts of each set out, aggregating the sum of $300.] The said Marshall & Sharp taking and accepting said accounts in full satisfaction of said claim; the said O. D. Westrope hereby agreeing that all foals not paid for by July 1st, 1891, that he will pay to said Marshall & Sharp such account remaining unpaid, and said account so paid by him to be reassigned to him. Marshall & Sharp. O. D. Westrope. Dated at Audubon, Ia., March 28, 1891.” These contracts were signed by appellees as indicated, and one of them (there being two) was returned to appellant, and the other retained by appellees. Afterwards one of the articles called for by the contract was substituted by another, and all the goods with the substitute named were shipped to the appellant. But three of the mares served to appellant's horse proved to be with foal, and appellees received but $30 from the accounts so assigned. The other accounts never matured, because the mares did not prove to be with foal. The appellant, being called upon to make payment of the balance of the purchase price, refused, claiming that he had fully performed his contract. The appellees thereupon instituted an action at law against the appellant, alleging (1) that appellant had procured its signature to the contract by fraud and misrepresentation; (2) that there was an implied warranty in the sale of the accounts, to the effect that they were subsisting and enforceable against the parties whose accounts they purported to be; and (3) that appellant received the property without any consideration therefor having been paid by him. The appellant made an issue of fact on the first claim, and demurred to the second and third. The demurrer was sustained as to the third, and overruled as to the second. Defendant thereupon answered the second, pleading that, under the arrangements had with those who secured the services of his stallion, it was agreed that nothing should be paid unless the mares were got with foal; that plaintiffs knew of this arrangement when they accepted the assignment of the accounts. Thereupon plaintiffs amended their petition by adding another count, in which they claimed that, by mutual mistake, or by mistake on their part and fraud on defendant's, the words “foals” was inserted in that part of the contract containing the guaranty, instead of the word “accounts”; and they asked that the mistake be corrected, and the contract reformed. A motion was then filed by defendant attacking the petition on the ground of misjoinder. This motion was sustained, but plaintiffs were permitted to file this last count as an independent action in equity. Certain pleadings were filed attacking this equitable pleading, which need not be referred to, and finally the defendant answered,admitting the receipt of the goods as alleged, but denying the fraud and mistake. He also pleaded that plaintiffs, by the institution of the law action, had confirmed the contract, and elected to stand thereon, and that they could not now be allowed to repudiate it; and that the contract was merged in a judgment by which the rights of the parties were fully determined. Defendant also pleaded that plaintiffs, with full knowledge of the contents of the written contract, and that the word “foals” was used therein, confirmed the same, and elected to stand by the conditions thereof. The plaintiffs filed a reply, denying this last claim of defendant, and also filed a demurrer to that part of the answer pleading an election and confirmation. This demurrer was submitted with the case, and the court, in rendering the decree, sustained the demurrer, reformed the contract as prayed, and rendered judgment for plaintiffs. Defendant excepted to the rulings, and appeals.

1. The first point relied upon by appellant is that the court erred in sustaining the demurrer to that part of his answer pleading election and confirmation. It is said that plaintiffs, by reason of having commenced their suit at law, elected to rely upon the contract, and that they cannot now be allowed to change front, and seek to have it reformed. The question presented is not open for our consideration. The suit is an equitable one, triable de novo in this court, upon the issues of fact presented to the lower court; and, while the appellant might also have the case considered on error, yet, to do so, he must assign the errors of which he complains. Powers v. O'Brien Co., 54 Iowa, 501, 6 N. W. 720;Patterson v. Jack, 59 Iowa, 632, 13 N. W. 724;Hodgin v. Toler, 70 Iowa, 21, 30 N. W. 1. There is no assignment of errors, and we cannot, therefore, review the action of the trial court in sustaining appellees' demurrer. It may not be inappropriate to say, however, that we do not think the facts as pleaded in defendant's answer constitute such an election of remedies, or such a claim of right, as prevents the appellees from asking for a reformation of the contract upon which the suit is founded.

2. The appellees alleged in their petition that the contract of sale “did not express the real contract entered into between plaintiff and defendant, * * * in that the word ‘foals' was, by fraud or mistake of the defendant, used in the place of the word ‘accounts,’ * * * but that plaintiff, through mistake as to the contents of said instrument, believed that the word ‘accounts' was used in the said instrument where the word ‘foals' is found, and was thereby induced to sign the said instrument.” In an amendment to the petition, the appellees said “that either said instrument did not express the intention and real contract of the parties signing the same by reason of the mistake of both parties or of the scrivener drawing the same, or that the defendant fraudulently presented the same to plaintiffs, intending that plaintiffs should be misled thereby, and knowing that plaintiffs were in error as to the terms and to its sufficiency to express the contract between them.” It is now insisted that the evidence does not sustain either claim. It seems to us that this is true in so far as it relates to the alleged mistake of fact recited in the original petition. The evidence conclusively shows that both members of plaintiffs' firm knew when they signed the contract just what it contained. They knew that the word “foals” was used, instead of the word “accounts.” They talked about the contract with each other before signing it. The defendant says that there was no mistake; that the language used was just as he intended. Manifestly, there was no such mistake of fact as to justify a reformation of the instrument, for the plain reason that neither party was mistaken in regard to...