Morris Plan Leasing Co. v. Bingham Feed & Grain Co.

• Decision Date: 14 June 1966
• Docket Number: No. 51979,51979
• Citation: 259 Iowa 404,143 N.W.2d 404
• Parties: The MORRIS PLAN LEASING COMPANY, Appellee, v. BINGHAM FEED AND GRAIN COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 404

143 N.W.2d 404

259 Iowa 404

The MORRIS PLAN LEASING COMPANY, Appellee, v. BINGHAM FEED AND GRAIN COMPANY, Appellant.

No. 51979.

Supreme Court of Iowa.

June 14, 1966.

Rehearing Denied Sept. 20, 1966.

Hurlburt, Blanchard, Cless & Porter, Des Moines, H. E. De Reus, Knoxville, and Life, Davis & Life, Oskaloosa, for appellant.

William R. Crary, and Silliman, Gray & Stapleton, Cedar Rapids, for appellee.

MASON, Justice.

Plaintiff brought this law action on a written agreement with defendant entitled 'Lease Agreement' for balance of alleged rentals of $14,339.90. Trial to the court, after denial of defendant's jury demand, resulted in judgment for plaintiff of $8810.32 with interest from July 1, 1961, and for costs. Defendant appeals.

I. Before reciting the facts relevant to the various issues of the lawsuit, we consider appellant's first error relied on for reversal, the trial court's refusal to grant defendant a jury trial.

Plaintiff's petition as amended demanded judgment against defendant. Following the prayer of his answer defendant demanded a jury trial. Six weeks after replying to the affirmative defenses alleged in defendant's answer, plaintiff filed a certificate of readiness. Subparagraph 7 thereof requested assignment for trial by the court. A copy of the certificate of readiness was delivered to defendant's attorneys on March 23, 1964, two days after filing, as shown by the clerk's certificate.

March 27 defendant filed an application demanding a jury trial and informed the court a jury demand had previously been made by proper pleading. The same day the court denied the request as not filed within the time and form required by rule 177, Rules of Civil Procedure, 58 I.C.A.

Plaintiff again filed a certificate of readiness with subparagraph 7 being identical with the previous certificate and it was mailed to defendant's attorneys. August 28 defendant filed a motion to reconsider the ruling of March 27 on defendant's demand for jury trial. Three days later defendant's application was denied.

Seven months later plaintiff again amended its petition and defendant promptly answered. Trial to the court followed.

Defendant contends the trial court's refusal to grant it a jury trial constituted a technical abuse of discretion. The application was directed to the trial court's discretion. It not being made to appear that this discretion was abused, we will not interfere.

Rule 177, as it existed at the time of the filing of the petition in this cause, provided:

'177. Demand for jury trial

'(a) Jury trial is waived if not demanded according to this rule * * *.

'(b) A party desiring jury trial of an issue must make written demand therefor by filing a separate instrument clearly designating such demand not later than ten days after the last pleading directed to that issue. A copy thereof must be filed for each adverse party appearing and it shall be mailed or delivered by the clerk in the manner provided by rule 82.

'* * * (d) Notwithstanding the failure of a party to demand a jury in an action in which such demand might have been made of right, the court, in its discretion on motion and for good cause shown, but not ex parte, and upon such terms as the court prescribes, may order a trial by jury of any or all issues.'

Prior to July 4, 1961, subparagraph (b) of this rule provided:

'(b) A party desiring jury trial of an issue must file a written demand therefor, either by indorsement on his pleading, or within ten days after the last pleading directed to that issue.'

This particular subparagraph was amended effective July 4, 1961, in an effort to achieve uniformity in making jury demands. Prior thereto the practice varied throughout the state; in some districts the demand was attached to various pleadings in others, in the original notice, in the prayer of the petition or as a separate allegation embodied in the pleadings. This amendment was the result of detailed consideration by our advisory committee and by us. In 1945 subparagraph (d) of this rule was changed to give the trial court discretion in such matters.

In Katcher v. Heidenwirth, 254 Iowa 454, 462, 118 N.W.2d 52, 56, we considered subparagraph (d) of his rule. What was said there is appropriate here without repeating.

Defendant's demand following the prayer of the answer is not compliance with subparagraph (b) as amended.

II. Defendant is a copartnership composed of Lloyd Bingham and his son, Darl Bingham, engaged in the operation of a feed and grain business.

Barnard & Leas Manufacturing Company of Cedar Rapids consists of a number of divisions, one being the mobile division which assembles and manufactures portable stock feeding, grinding and blending machines mounted on a motor truck chassis. Prior to March 16, 1960, through calls of a sales representative of Barnard & Leas, defendant became interested in the unit which sold for $22,777. Defendant, being unwilling to put that amount into the unit, signed an order on the basis of a four-year lease calling for monthly rentals of $615 the first year, $570 the second year, $525 the third year and $480 the fourth year, a total of $26,280, plus a guaranteed residual resale value of $4277.

Barnard & Leas did business with plaintiff, a leasing company also of Cedar Rapids. Under the arrangement existing Barnard & Leas sold the unit to plaintiff for $22,777 and plaintiff became the contracting bailor with defendant for it under the written lease and addendum. It was signed and acknowledged under date of March 16, 1960, by Darl L. Bingham for defendant and provided for monthly rentals commencing March 17, 1960, continuing through March 17, 1964, and guaranteed residual resale value as set out in the order, exhibit 3. In addition the lease provided for a prepaid rental of $960 to extinguish the last two monthly payments and an option to extinguish the resale value of $4277 by 24 additional rental payments of $225 each and another option for 12 additional monthly payments of $25 each.

Under the written agreement defendant agreed to pay for repairs, licenses, insurance costs, etc. Paragraph 16 contained a disclaimer of warranty of any kind by plaintiff. There was a purported extension of manufacturer's or vendor's warranties. Barnard & Leas as the manufacturer had a limited express warranty as to the quality of parts for a period of 60 days and Ford Motor Company had a manufacturers' warranty, the exact terms of which do not appear. These were delivered to defendant by a service engineer of Barnard & Leas who also gave defendant and its employee, who was to operate the machine, two or three days instruction in its use.

Delivery of the unit was made in March 1960. Defendant paid $960 as prepaid rent for the last two months of the lease and thereafter made rental payments as required through July 1961.

On July 8, 1960, defendant complained the motor was overheating and an extrabladed fan was installed to correct this difficulty. In November 1960 the first serious mechanical problem occurred when the diesel motor broke down. After notifying Barnard & Leas and plaintiff, defendant took the unit to Lehman Ford, Des Moines, for a major overhaul of the diesel motor at a cost of $500 which was paid by defendant and later refunded by Ford Motor Company. In March 1961 the diesel motor again caused serious difficulty and a new one was installed by Ford Motor Company through a Ford dealer in Des Moines without expense to either party to this action. In June 1961 the second diesel motor broke down, or as defendant said, 'It blew up.' Defendant returned the unit to Lehman Ford in Des Moines and was advised by a representative of the Ford Motor Company that it would be reimbursed for repairs to the motor. Defendant, however, declined to accept the unit.

In addition to the above incidents mentioned in the trial court's findings, defendant had several other complaints about the unit, including the motor missing, as early as April 1960 which resulted in a repair bill of $120, trouble with the paddles in the mixer requiring new paddles, difficulty with the system of chains and sprockets which was replaced by a drive belt system, difficulty with the shifting mechanism from the power unit, breaking of shafts and bearings, problems which occurred 'every week we had it in operation.'

In April 1962 plaintiff received notice from Lehman Ford of the enforcement of its artisan's lien, advising the unit would be sold May 4, 1962, at 10 o'clock, to satisfy the repair bill of $480.07 unless payment was made before the date specified. Plaintiff paid the repair bill, repossessed the unit and after Barnard & Leas reconditioned and repaired it, leased it to P. & H. Milling of LaHarpe, Illinois, November 12, 1962, through the efforts of Barnard & Leas.

III. Plaintiff's petition alleged default in the monthly rentals required by the written lease and asked judgment for $14,339.90. Defendant's answer admitted execution of the lease and asserted as affirmative defenses breach of implied and express warranty. Plaintiff's reply specifically denied the affirmative matters.

The trial court awarded plaintiff judgment of $8810.32 with interest at seven percent from July 1, 1961, together with costs, arriving at this amount by charging defendant first with the total rental of $26,280 plus an item for repairs and licenses paid by plaintiff of $823.07 and deducting therefrom the total rentals paid by defendant of $10,005 and the recovery on the lease to P. & H. Milling up to April 1864 of $7310. The court disallowed a claimed item by plaintiff of $4724.90 for repairs paid by plaintiff to Barnard & Leas after repossession of the machine. The court also allowed defendant credit for payments by Ford to plaintiff of $977.75.

IV. This case is not reviewable de novo here but only on errors assigned. The evidence will be viewed in the light most favorable to plaintiff--this is also the light most favorable to the trial...