McCann v. Clark

• Decision Date: 06 October 1914
• Docket Number: 29338
• Citation: 148 N.W. 1025,166 Iowa 705
• Parties: J. W. MCCANN, Appellant, v. E. W. CLARK, BARNES BROTHERS, CLYDE BARNES, CHARLES BARNES and H. H. NORTHRUP, Appellees
• Court: Iowa Supreme Court

148 N.W. 1025

166 Iowa 705

J. W. MCCANN, Appellant, v. E. W. CLARK, BARNES BROTHERS, CLYDE BARNES, CHARLES BARNES and H. H. NORTHRUP, Appellees

No. 29338

Supreme Court of Iowa, Des Moines

October 6, 1914

Appeal from Polk District Court.--HON. LAWRENCE DE GRAFF, Judge.

ACTION at law upon a contract for the exchange of a stock of merchandise for a tract of land. The material facts are sufficiently stated in the opinion. At the close of the testimony the court directed a verdict for all of the defendants, and from such order and the judgment entered thereon the plaintiff appeals.

Reversed.

A. A McGarry, for appellant.

F. H Helsell, for appellee E. W. Clark.

Hunn & Jones, for appellees Barnes.

H. H Northrup, pro se.

WEAVER, J. LADD, C. J., and EVANS and PRESTON, JJ., concur.

OPINION

WEAVER, J.

Plaintiff alleges that, in the spring of the year, 1911, he was the owner of a stock of merchandise of the value of $ 7,500 at the town of Cummings, Iowa and at the same time the defendants Barnes were in business as real estate agents and brokers at Des Moines, Iowa and had associated with them in some capacity the defendant Northrup. He further avers that the defendants Barnes and Northrup represented to him that they were agents of the defendant Clark, who was the owner of eighty acres of land in Jasper county, which he desired to exchange for merchandise, and thereby induced him to go with Clyde Barnes and Northrup to visit and inspect this land which they said belonged to Clark. The land so shown to him was of good quality and value, and, believing and relying upon such representation, he entered into a contract for the exchange of his said stock of goods for said land and delivered said stock to said defendants, who took and retain possession thereof, but that said defendants, though due demand has been made therefor, have neglected and refused to convey to him the land which has been exhibited and pointed out to him by Barnes and Northrup. He further claims that Clark did not and does not own the land so shown him, and has no power or authority to sell or convey the same. By reason of said alleged wrong and default of the defendants, plaintiff claims to have been damaged to the full extent of the value of the merchandise so turned over to the defendants, and he asks a verdict therefor in the sum of $ 7,500.

Separately answering, the defendant Clark admits that he owned a tract of land in Jasper county, which he desired to sell or exchange for other property, admits that a contract was entered into in his name by the defendant Northrup with the plaintiff for the exchange of said land for plaintiff's stock of goods, but denies that Northrup had any authority to sign said Clark's name to such writing. He admits that Barnes and Northrup showed plaintiff certain land as being the tract owned by him, and says they did it honestly, believing they were stating the truth. Thereafter, he says, being informed that the trade could be made he executed a deed of the land to plaintiff, and delivered it to Barnes Bros. as the agents of the latter. Later he learned that a mistake had been made in pointing out the land to plaintiff, and thereupon he made a bill of sale of the goods back to the plaintiff and placed it in the hands of Barnes Bros., authorizing or directing them to give plaintiff the option to confirm the exchange as already made or agreed upon, taking the land actually owned by him, or, if he so elected, the exchange might be abandoned and the bill of sale to the goods delivered to the plaintiff. Said defendant further alleges that plaintiff was then indebted beyond his ability to pay, and that, with one Glynn and one Casady representing some of his creditors, a conspiracy was entered into between them to bring about this exchange of property, and thus get rid of the stock of goods in a manner to satisfy the claims held or controlled by said Glynn and Casady and to cheat and defraud his other creditors, and thereby involve the defendant in burdensome litigation, and that the contract so obtained ought not to be enforced. Other matters are stated in the answer, but further reference thereto is not material to the consideration of the appeal. The defendants Barnes and Northrup also answer, denying the plaintiff's claim.

The one question on this appeal is whether the plaintiff made a case which he was entitled to have submitted to the jury. Where a verdict has been directed below, it is elementary that this court is required to give to the testimony offered the most favorable construction of which it is fairly capable in behalf of the party against whom the ruling appealed from was made. In this case no testimony was offered on the part of the defendants or any of them. Turning, then, to the testimony on the part of plaintiff, and applying thereto the rule above stated, we find that it tends to show the following state of facts: Plaintiff owned the stock of goods in question and desired to sell or exchange it for other property. Glynn and Casady represented certain banks who held claims against him, and they had recently taken from him a chattel mortgage on the stock to secure the payment of $ 1,300, but the mortgage had not been recorded. Plaintiff requested Casady to find him a customer for the goods, and Casady mentioned the fact of such opportunity to one of the Barnes brothers, who were in the real estate business at Des Moines. Barnes informed Casady that he had or knew a piece of land in Jasper county, and he thought he could get its owner to put it into a deal of that kind, and that he would take the matter up with him and ascertain about it in a day or two. Later Barnes reported that they were ready to negotiate, and the defendants Clyde Barnes and Northrup invited plaintiff to go with them and inspect the land. Plaintiff had never seen the land and knew nothing of its real character. The evidence tends to prove, and it is practically admitted, that Barnes and Northrup did not show him the land owned by Clark, but pointed out to him the adjoining eighty-acre tract as the property which they could put into the exchange. The land thus exhibited was much the more valuable. The tract shown was good farming land, but the tract owned by Clark was low and wet and threaded by the winding course of the Skunk river. There is also evidence that Barnes and Northrup, or one of them, said to plaintiff that he knew the land, and that it was worth the price they put upon it--$ 80 per acre. Plaintiff, being satisfied with the property shown him, expressed his willingness to make the exchange, and on the following day Clyde Barnes and Northrup appeared at Cummings, where they met plaintiff and Casady for the purpose of closing the deal. Northrup and Clark are both residents of Sioux Rapids, Iowa and the proved facts and the guarded statements in Clark's answer were sufficient to justify the inference that Northrup was Clark's agent and representative in the transaction, though the answer denies that he was authorized to sign Clark's name to the written contract. These negotiations resulted in an agreement by which Clark was to convey the land to plaintiff, subject to a mortgage of $ 1,500, and plaintiff was to transfer to Clark the stock of goods free from incumbrance. A written contract was prepared by Casady and executed in the following form:

This memorandum of agreement made and entered into this 17th day of April, 1911, by and between E. W. Clark of Sioux Rapids Iowa party of the first part, and J. W. McCann, of Cummings, Iowa party of the second part, witnesseth: The party of the first part has this day sold to second party the following described real estate, to wit: The north half (N. 1/2) of the northwest quarter (N. W. 1/4) of section twenty-four (Sec. 24), township seventy-nine (Tp. 79), range twenty (20) Jasper county, Iowa subject to a mortgage of fifteen hundred ($ 1,500.00) dollars, with interest from this date at six per cent. (6%) for and in consideration of the above and foregoing described land, the second party has this day sold and conveyed, this day by bill of sale free and clear of all liens and incumbrances, a certain stock of general merchandise and fixtures, as described in said bill of sale, located in the town of Cummings, Warren county, Iowa in what is known as the Jackson Smith building, in said town. First party agrees to convey the Jasper county land to second party, by good and sufficient warranty...