Miller v. Hurburgh
| Decision Date | 10 March 1931 |
| Docket Number | 40691 |
| Citation | 235 N.W. 282,212 Iowa 970 |
| Parties | M. R. MILLER, Appellee, v. C. F. HURBURGH, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED JUNE 20, 1931.
Appeal from Polk District Court.--O. S. FRANKLIN, Judge.
Action at law upon an oral contract. The issue presented by the pleadings was upon the terms of the contract. The existence of an oral contract was mutually conceded. A jury was waived and the case was tried to the court. The finding was for the plaintiff and judgment entered accordingly. The defendant has appealed.
Affirmed.
Theo. P. Eslick and Bradshaw, Schenk & Fowler, for appellee.
Clark Byers, Hutchinson & Garber, for appellant.
Only fact questions are involved. No rulings of the court are involved; no question of law was contested in the trial below; there is no bill of exceptions. The judgment was duly excepted to, and the one question presented is whether it has support in the evidence.
The oral contract involved was entered into in May, 1928. The defendant, Hurburgh, was a resident of Galesburg, Illinois and was the owner of the Stratford Hotel in the city of Des Moines. He had previously listed it for sale with Knepper, a real estate agent in Des Moines. He was operating the hotel through a hired manager and such operation was unsatisfactory. The condition of the hotel and of its management was such that Knepper found it difficult to interest prospective purchasers therein. In conference between Knepper and Hurburgh it was decided to give a better appearance to the hotel and to change the management thereof for that purpose. Pursuant to this conference Knepper negotiated with Miller, who was at that time the hired manager of the Drake Hotel in the same city. The negotiations with Miller were largely conducted by Knepper. Hurburgh personally conferred thereon with Miller pending the negotiations and confirmed the final arrangement by telephone conversation. The oral arrangement entered into as testified to by Miller was in substance that Miller should take possession of the hotel; that he should renovate it and put it in attractive condition; that a five-year lease should be executed to him at $ 400 per month,--this lease to become the subject of sale to a prospective purchaser; that the rent for the first three months should be devoted to the expense of the renovation; that the furniture of the hotel, then contained therein, should be appraised to the plaintiff at $ 1500, payment of which was to be deferred until a sale should be accomplished; that when such sale was accomplished the consideration obtained for the furniture and good will should inure to the benefit of the plaintiff and that he should take the difference between such sale price and the $ 1500 appraisal. This margin was to represent plaintiff's interest or profit in the transaction. The plaintiff appears to have performed upon his part. In March, 1929, Knepper accomplished a sale. That is to say he procured a tenant, who accepted from Hurburgh a five-year lease and paid for the furniture and good will the sum of $ 5300. The contemplated five-year lease to Miller was never in fact executed. Miller therefore treats the later transaction as a sale of his constructive lease. The defendant treats it as the acquisition of a tenant for the property and a purchaser for the good will and for the furniture. The contention of the defendant is that he did not sell the furniture to Miller; that the only arrangement between him and Miller was that Miller should enter into possession and fix up the property with an allowance of $ 1200 on the rent for the necessary expenditures of putting the property in attractive shape; that no other inducement was held out to Miller for his part in the transaction except the alleged cheapness in the rent. The point of view of the...
To continue reading
Request your trial