Mulroney Mfg. Co. v. Weeks

• Citation: 185 Iowa 714,171 N.W. 36
• Decision Date: 14 March 1919
• Docket Number: No. 32637.,32637.
• Parties: MULRONEY MFG. CO. v. WEEKS ET AL.
• Court: United States State Supreme Court of Iowa

185 Iowa 714

171 N.W. 36

MULRONEY MFG. CO.

v.WEEKS ET AL.

No. 32637.

Supreme Court of Iowa.

March 14, 1919.

Appeal from District Court, Wright County; H. E. Fry, Judge.

Action of replevin against the defendant Weeks and his successors in title to recover back property obtained by Weeks from the plaintiff by false and fraudulent representation. There was a trial to a jury and a verdict for the plaintiff. The defendant appeals. Affirmed.Kenyon, Kelleher & Hanson, of Ft. Dodge, for appellant.

P. F. Nugent, of Ft. Dodge, and Sylvester Flynn, of Eagle Grove, for appellee.

EVANS, J.

The ultimate defendant, Woodward, is a trustee in bankruptcy, who is entitled as such to the possession of the estate of the defendant Weeks as a bankrupt. Weeks was a merchant operating stores in the small towns of Holmes and Hardy, each a few miles distant from Ft. Dodge. The plaintiff was a manufacturing concern located at Ft. Dodge and engaged in selling its product to retail dealers. It had dealt with Weeks for two or three years. In July, 1916, Weeks placed an order for goods to the value of $802.70. He was at that time already indebted to the plaintiff in the sum of over $600. The plaintiff boxed the goods ordered in July, but refused to part with the same until Weeks should make a substantial payment upon the existing indebtedness. On September 28, 1916, Weeks, desiring to obtain the goods ordered in July, delivered to the plaintiff his check for $223.47 to apply on the past-due account. The plaintiff, relying upon the check as being good for the amount, delivered the July order. The check was delivered by Weeks to a traveling agent of the plaintiff, who sent the same by mail to the plaintiff, and the plaintiff sent the same by mail to the Bank of Holmes, upon which it was drawn, and where it went to protest. There had been no funds there to meet such check on the date thereof or on any later date. Weeks made an assignment for the benefit of his creditors and absconded. Later a petition in bankruptcy was filed, and the estate is now in the bankruptcy court. The claims allowed against it amount to more than $25,000, and the total assets are a little more than $3,000. The foregoing are the salient facts in the case.

I. The appellant complains that the instructions of the trial court in its statement of the issues embodied the entire petition without discrimination, and that they did not in any manner advise the jury as to what were the material allegations necessary for the plaintiff to prove in order to recover. The instructions are fairly subject to criticism in the respect indicated. The petition was rather prolix in its allegations. Under its allegations a right of recovery could be predicated upon either one of two or more grounds:

(1) That Weeks had obtained the possession of the goods from the plaintiff by false pretenses, in that he had delivered to the plaintiff a false check knowing it to be false and knowing himself to be insolvent, and that the plaintiff had received the same believing it to be good.

(2) That Weeks had obtained the goods by false pretenses, in that, knowing himself to be insolvent, he contracted for and received the goods with an intent not to pay for them.

[1] Other allegations in the petition were quite immaterial, except so far as they were evidentiary and bore upon the grounds here set forth. The question to be determined by the jury was not...