Michael v. Merchants Mut. Bonding Co., 2-57958
| Decision Date | 16 March 1977 |
| Docket Number | No. 2-57958,2-57958 |
| Parties | Harry MICHAEL, Appellee, v. MERCHANTS MUTUAL BONDING COMPANY, Appellant. |
| Court | Iowa Supreme Court |
Smith, Peterson, Beckman, Willson & Peterson by Frank W. Pechacek, Jr., Council Bluffs, for appellant.
Porter, Heithoff, Pratt & Reilly, Council Bluffs, for appellee.
Heard by MOORE, C. J., and MASON, RAWLINGS, LeGRAND and UHLENHOPP, JJ.
This appeal involves the question of the liability of a surety on a warehouseman's bond. Other appeals involving the same bond are Avoca State Bank v. Merchants Mut. Bonding Co., 251 N.W.2d 533 (Iowa), and True v. Merchants Mut. Bonding Co., 251 N.W.2d 543 (Iowa).
The facts involving the principal on the bond, Claude W. Myler, are set out in the Avoca State Bank case. Plaintiff Harry Michael is an accountant who also operates a farm. Between December 16 and 22, 1971, he delivered 14,070.3 bushels of wet corn to Myler's elevator. The parties are in dispute as to whether Michael sold the corn to Myler or delivered it for storage. The record contains substantial evidence both ways on the issue. Myler contends he quoted Michael a price and Michael delivered the corn for sale accordingly, while Michael claims he stored the corn. After Michael delivered, the price of corn advanced. About two weeks following delivery by Michael, Myler sold and delivered the corn to a terminal elevator. The trial court did not make a finding either way on the sale or storage issue, because under its view of the law the result would be the same either way.
Myler testified that Michael did not call for his check and so sometime later Myler mailed it to him. The mailing date is not clear from the testimony but was probably in the latter part of March 1972, about three months after Michael delivered the corn. Michael returned the check early in June 1972, contending he had stored the corn and demanding a warehouse receipt. Myler became insolvent and closed his doors in September 1972.
Michael subsequently sued the surety on Myler's warehouseman's bond, defendant Merchants Mutual Bonding Company. The trial court held for Michael for the value of the corn ($12,944.68), and interest. Merchants appealed. Myler's undisputed liability to Michael is not involved in the appeal.
I. Merchants first contends that the trial court erred in overruling its motions relative to absence of indispensable parties. For the reasons stated in the Avoca State Bank case, we do not sustain this assigned error. What we said there is applicable here, with reference to further proceedings if the Avoca State Bank or Michael attempts to hold Merchants for more than the amount of Merchants' bond.
II. Merchants next contends that the trial court erred in rendering no findings or conclusions on its defenses of estoppel and waiver. The difficulty here is that Merchants did not make a record for appeal on this assigned error by moving the trial court to enlarge its findings and conclusions under rule 179(b) of the Rules of Civil Procedure. Fjelland v. Wemhoff, 249 N.W.2d 634 (Iowa); Thomas Truck & Caster Co. v. Buffalo Caster & Wheel Corp., 210 N.W.2d...
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...enlarged or amended findings and conclusions by trial court as permitted by Iowa R.Civ.P. 179(b). See also Michael v. Merchants Mutual Bonding Company, 251 N.W.2d 531, 533 (Iowa 1977). In light of the foregoing, Chicago Title preserved nothing for review regarding any claimed Code § 515.48(......
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