Mitchell v. Beck
| Decision Date | 17 February 1916 |
| Docket Number | 30355 |
| Citation | 156 N.W. 428,178 Iowa 786 |
| Parties | JAMES MITCHELL, Appellee, v. W. J. R. BECK, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED WEDNESDAY, DECEMBER 13, 1916.
Appeal from Lee District Court.--HENRY BANK, JR., Judge.
SUIT to recover for various items of labor and farm products furnished defendant. Defense, payment, and one in the nature of set-off or counterclaim. Verdict and judgment for plaintiff. Defendant appeals.
Affirmed.
W. J R. Beck and John L. Benbow, for appellant.
Herminghausen & Herminghausen, for appellee.
Defendant moved a transfer to equity before any testimony was taken, and whether his application was rightly denied, depends, therefore, on the state of the pleadings at the time when transfer was asked.
In the first of 17 "counts," reduced to 14 by withdrawal, plaintiff claims that, during the fall of 1907, he delivered to defendant, at his request, 3/5 of 21 acres of corn raised on defendant's land in 1907, averaging 30 bushels an acre, a total of 378 bushels, reasonably worth $ 189, and he asks interest and costs. Differing from the first count only in date of delivery, that in the other counts the date is fixed more definitely, and in the amount claimed, a similar claim for corn is repeated in three other counts. Hay delivered is the subject of two counts; sweet potatoes use up another count. Count 18 charges that defendant, about February, 1911, while a brown mare belonging to plaintiff was heavy with foal and sick, used her, without permission, and drove her, thereby causing her death shortly, and that she was reasonably worth $ 150; also that, about the latter part of August, or the forepart of September, 1910, defendant drove, without permission, a bay mare of plaintiff's, while she was sick, so that she died therefrom about December, 1910, and that this mare was reasonably worth $ 150. Work by himself and team is the basis of six counts. The occasional statement that plaintiff is unable "to give a more definite statement as to the time and place" of the transactions pleaded is not very controlling, because the statements on that head are very definite. In an amendment compelled by court order, plaintiff avers that the transactions charged in the counts, and the requesting by plaintiff, all rest in parol. In Count 18, plaintiff says that defendant is entitled to some items of credit, as to the amount of which plaintiff is not fully advised. This is withdrawn by a second amendment to petition. The prayer of the petition is for judgment in $ 5,536, with interest, "less the amounts of credit that the defendant may have."
After the first amendment, defendant answered, denying every allegation not specifically admitted. The only "admission" is that defendant made certain advances of money and property to plaintiff for which he has never been paid; that they are now due and owing him; and he prays that the plaintiff may be required to give a statement of the amount of credits to which this defendant is entitled; and that, upon ascertainment of the same, the defendant be given judgment for said amount, with interest. Dismissal is prayed. After plaintiff withdrew his statement that defendant had credits, defendant amended his answer, stating as further defense that, during the year 1907 to 1912, both inclusive, plaintiff took certain wood, hogs and other live stock and other property, and hay, corn, small grain, sweet potatoes, melons, broom corn, sorghum and other property and crops of defendant, and appropriated the same to his own use, and sold the same, and appropriated the proceeds of the sales to his own use, for which he (plaintiff) has not given the defendant credit; that defendant cannot now state the cash value of the articles so appropriated, or the amount of money received from said sale, or their proceeds, but says it was more than sufficient to pay any and all amounts defendant may have owed plaintiff, if it shall so be that defendant did owe plaintiff anything during said years; that, during these years, defendant made certain advancements to plaintiff, for which plaintiff has not given defendant proper credits to which said defendant is entitled, and defendant cannot state at this time the amounts of credits due defendant. He further states that, if it be so that plaintiff was ever in his employment, or cropped on shares with him, the property of defendant which plaintiff appropriated to his own use, or disposed of, is more than enough to pay plaintiff for any such services, and for any and all interest the plaintiff may have had in the corn, hay, small grain, broom corn, cane, melons, sweet potatoes and such other crops raised on the defendant's farms. He pleads payment in full, and denies that he is indebted to plaintiff for the sum stated, or any other sum.
Then came reply, denying all that may not have been previously admitted. Lastly, another amendment to answer, that certain groceries were bought by plaintiff and paid for by defendant during certain years, on promise of plaintiff to repay; that defendant cannot state the amount of these groceries, nor when they were furnished, but does say that the amount so furnished, whatever it may be, has never been repaid. Dismissal is once more asked.
II. We need not pass on the effect of the averment in the petition that defendants had some credits in an amount not known to plaintiff. This allegation was withdrawn. While it is true, as claimed, that withdrawn admissions may be made evidence, we are not advised that this withdrawn admission was put in evidence. If it was, that effects nothing. If, when the motion to transfer was denied, the state of the pleading justified the ruling, it could not be made erroneous by testimony later put in. And this is so of matter other than said withdrawn admission. The ruling on the motion is not made erroneous because, as is claimed, the testimony shows that the parties had relations, or that one had duties, as to and over which equity has jurisdiction; nor because of misconduct, or right to credits, which are of equitable cognizance. If a ruling is right when made, there is an end to complaint of it on appeal. It would be strange, indeed, that, if a suit be rightly retained at law against a motion to transfer, the ruling would become erroneous because the parties thereafter try matters that a court of equity can deal with. With this disposed of, we find that plaintiff's action is: (1) For the purchase price of corn delivered to defendant,--and we will assume for defendant that plaintiff was the tenant of defendant, and sold him his tenant's share; (2) for hay and sweet potatoes sold, for which we will indulge in like assumption; (3) for work by self and team, furnished defendant by plaintiff; and (4) for damages for misuse of defendant's horses. If this were all, there is nothing to sustain the allegations of the motion to transfer, even if we assume that same, if true, require transfer. The assertion that it was error to overrule the application to transfer to equity must rest, then, upon the defenses pleaded. These defenses are that plaintiff appropriated property of defendant to his own use, sold same and appropriated the proceeds; that for neither has he given defendant credit; that defendant cannot now say how much was appropriated, but it was more than enough to pay plaintiff, if defendant ever owed him; that he has advanced to plaintiff money and property for which payment is due and owing; that plaintiff should be required to give a statement of the amounts of credits to which defendant is entitled, and that, on the ascertainment of same, defendant have judgment for said amount, with interest; that plaintiff bought groceries for which defendant paid, on promise to repay; and that plaintiff cannot state the amount, but, whatever it may be, it has not been repaid.
That a claim for property sold and work furnished to defendant, and for an injury to plaintiff's horses, is met with a claim that plaintiff has appropriated the property of the defendant, and not paid for it; that defendant has made advances for groceries for the benefit of plaintiff, and has not been repaid, presents nothing whatever over which equity has exclusive, if any, jurisdiction. There is presented nothing more than that a plaintiff has employed eighteen distinct "counts" to make claim for property sold and work done, and injury to property not compensated for when it could have been done in one count; and that defendant responds with something in the nature of a counterclaim, saying that property of his appropriated by plaintiff and other things for which money is due, are equal to, if they do not exceed, the amount claimed by plaintiff. Up to this point, the pleadings do not indicate that there is involved "an accounting between partners." or "an accounting involving a large number of accounts between parties who claim to have respective interest in the respective accounts;" and, assuming that, if they were involved, it would authorize a transfer, there appears nothing to show that such a situation exists. If, then, it was error to overrule the motion to transfer, it must be because the defendant pleads that he does not know how much is due him from the plaintiff on account of property misappropriated by plaintiff, or for groceries that he had bought for plaintiff, and paid for. Without holding that it would be material, if present, we find there is no claim in pleading that any concealment was practiced by plaintiff, and no statement why defendant cannot know how much of his property was taken. Clearly, no equity jurisdiction can be founded upon the statement of one who buys and pays for goods for...
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