Mortensen v. Prederickson Bros., 33562.
| Decision Date | 19 January 1921 |
| Docket Number | No. 33562.,33562. |
| Citation | 180 N.W. 977,190 Iowa 832 |
| Parties | MORTENSEN v. FREDERICKSON BROS. ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Shelby County; J. B. Rockafellow, Judge.
Action at law to recover amount claimed to be due plaintiff under contract of rescission. The opinion states the facts. Reversed.Edward S. White, of Harlan, and Robertson & Robertson, of Council Bluffs, for appellant.
Preston & Dillinger, of Avoca, and Thomas H. Smith, of Harlan, for appellees.
On or about the 5th day of December, 1919, the plaintiff filed in the office of the clerk of the district court of Shelby county, Iowa, his petition, as follows:
“Count I.
Plaintiff for his cause of action against the defendants, Frederickson Bros., a copartnership, Hardy Frederickson and Malling Frederickson, personally, as individual members of said copartnership, jointly and severally, states:
That said defendant Frederickson Bros. is now and has been continuously all of the year of 1919 a copartnership composed of said Hardy Frederickson and Malling Frederickson as the only individual members thereof; that during all said time they have been engaged in farming, stock raising, feeding cattle, and buying and selling cattle on their farms near Avoca, Iowa.
That plaintiff is a farmer and stock buyer, and has been such continuously during all of the year 1919, and that his residence during said time has been and is now at Underwood, Iowa.
That on or about May 19, A. D. 1919, under and by virtue of an oral agreement made and entered into by and between the plaintiff and the defendants, the plaintiff purchased and the defendants sold to him 191 head of cattle at the price of $14.75 per hundredweight, and as a part of said oral agreement plaintiff had 10 days in which he could take the cattle at any time when he wanted to do so, but he had to take them at the end of the 10 days. And as a part of said oral agreement it was so agreed and understood between said parties that said cattle were to be left upon said defendants' farm near Avoca, Iowa, until shipped by plaintiff, and that the defendants were to furnish the plaintiff the necessary water for said cattle free of charge and permit him to keep said cattle upon their farm and in their feed lots free of charge, but the plaintiff was to purchase and pay for the corn and hay and other grain, to feed said cattle while he kept them on their farm or farms, and was to feed and take care of said cattle himself while he kept them there, as above stated.
That before the expiration of the said 10 days after the making of said contract, and within the time that the plaintiff had the right to take said cattle, as he and the defendants figured the time, it was further mutually orally agreed by and between the plaintiff and the defendants that the plaintiff could leave said cattle in the defendants' yards upon their farms just as long as he wanted to before he shipped them, if he would purchase the necessary feed to feed them and feed them during said time, the defendants to furnish all of the necessary water for said cattle until they were shipped by the plaintiff, free of charge; that on or about June 3, A. D. 1919, it was further mutually agreed by and between said parties that the said cattle should be weighed up to plaintiff on that date and that he should take and receive the cattle at that time; and that the said cattle were weighed on or about said time and actually turned over and delivered by the defendants to the plaintiff herein as his cattle under and by virtue of said oral contract and the said changes and modifications thereof, as above alleged.
That after said cattle were weighed and delivered to plaintiff as above stated, he purchased one carload of corn to feed said cattle at the price of $2,054.56, which plaintiff paid on or about June 9, A. D. 1919; that said corn was used in feeding said cattle, and that plaintiff also paid freight on the shipment of said carload of corn on or about July 14, A. D. 1919, in the sum of $67.98; that plaintiff further purchased and paid for another carload of corn which he fed to said cattle, and that said carload of corn cost plaintiff the sum of $2,988.72; that plaintiff purchased hay and oats of the value of $200 which he fed to said cattle after the same were turned over to him; and that he afterwards paid the defendants on the purchase price of said cattle the sum of $250 in addition to said $2,000 above referred to, such payment of said $250 being a part of a check that one Frost gave the plaintiff and which the plaintiff transferred to defendants, and the defendants received the money thereon.
Plaintiff further alleged and shows to the court that the said first carload of corn was at the time and place the plaintiff purchased and fed the same to said cattle at the place where he did feed the same to said cattle of the fair and reasonable market value of $2,054.56; that said second carload of corn above referred to was of the fair and reasonable market value at said time and place of $2,988.72; that said freight charge of $67.98 was a fair and reasonable freight charge for the shipment of said corn to said place; that $3 for salt, which plaintiff purchased and fed to said cattle, at said time and place, was the fair and reasonable value thereof; and that $200 was the fair and reasonable value of the oats and hay purchased and fed to said cattle by plaintiff at said time and place; and that the corn, hay, oats, and salt were of the fair and reasonable total, aggregate market value of $5,314.26.
Plaintiff further states that he purchased and fed said corn, hay, oats, and salt to said cattle after the same were delivered to him, and under and by virtue of said oral agreement of purchase of the same and by reason thereof.
Plaintiff further states and shows to the court that after said cattle were delivered to him on or about June 3, 1919, that he continuously thereafter took care of said cattle and fed and watered and cared for them until the 27th of July, 1919; that the fair and reasonable value of his time and services in feeding, watering, and taking care of said cattle during said time at said time and place was at least $100 per week; and that said services were of the total fair and reasonable market value at said time and place of $800.
Plaintiff further states that after he purchased said cattle as above stated, and while he was keeping the same under said oral agreement upon the defendants' premises, as above alleged, he purchased a certain bull and gave his check for $75 in payment for the same, and by mutual oral agreement between plaintiff and defendants and with their knowledge and consent plaintiff kept said bull with said 191 head of cattle upon defendants' premises, and fed and cared for said bull with said other cattle until he drove the same to Avoca, Iowa, preparatory to shipping all of them to the market at South Omaha, Neb.
That on or about July 27, A. D. 1919, plaintiff again weighed said cattle upon defendants' scales on their premises, and the defendants assisted him in driving the cattle out of said feed lots on their said farms and into the road of public highway so that he could drive all of said 191 head of cattle and the said bull to Avoca, Iowa, for the purpose of shipping them to South Omaha, Neb., to be sold on the market at said place, and plaintiff did drive them to Avoca, Iowa, for said purpose on said date.
Plaintiff further states that after he had driven said cattle and bull to Avoca, Iowa, or near there, the defendants and one A. C. Meitzen, acting as agent for them, demanded of plaintiff the immediate payment of the balance of the purchase price for said cattle, and in substance stated to plaintiff that unless he paid the balance of said purchase price for said cattle immediately, that is, that night, and before he put the same in the stockyards of the railway company at Avoca for shipment, that defendants would take said cattle back as their own cattle; and that plaintiff was unable to pay defendants that night the balance of the purchase price for said cattle, and it was mutually orally agreed and understood between the plaintiff and the defendants then and there that the defendants were to take said 191 head of cattle back and that they were to take and receive from the plaintiff the said bull, as their own property, and that the said oral contract of purchase hereinbefore referred to between said plaintiff and the defendants herein was to be and the same was in fact rescinded, and the plaintiff put the defendants in statu quo, that is, he delivered back to defendants the said 191 head of cattle and also delivered to them the said bull, and the defendants accepted said cattle and bull as their own property, and thereafter and on that same night shipped said cattle from Avoca, Iowa, to South Omaha, Neb., as their own cattle and sold said cattle afterwards as their own cattle and received the price that the cattle and said bull brought, and have used and appropriated said price which they received for said cattle to their own use and benefit. But the defendants have refused and still refuse to put the plaintiff in statu quo after said contract of purchase of said cattle was rescinded as above stated, in that said defendants have failed and neglected and refused to pay back to plaintiff the said $2,250 that he paid them upon the purchase price of said cattle under said contract, and the amount of money as hereinbefore alleged that plaintiff paid for corn which he fed to said cattle as above stated, and the amount that he paid for hay and oats and salt which were fed to said cattle by him as above alleged. And the said defendants have failed and neglected and refused to pay plaintiff for the value of his services during the eight weeks that he fed and cared for said cattle, as above stated.
That by reason of the above and foregoing facts there is now due and owing from said defendant...
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