Murray v. Weber

• Decision Date: 10 October 1894
• Citation: 60 N.W. 492,92 Iowa 757
• Parties: ANDREW K. MURRAY, Appellant, v. MAX WEBER
• Court: Iowa Supreme Court

60 N.W. 492

92 Iowa 757

ANDREW K. MURRAY, Appellant, v. MAX WEBER

Supreme Court of Iowa, Des Moines

October 10, 1894

Appeal from Scott District Court.--HON. P. B. WOLFE, Judge.

THIS is an appeal from an order granting a new trial in an action for the alleged wrongful conversion of a stock of boots and shoes. There was a trial by jury, and a verdict for plaintiff, which was set aside, and a new trial ordered. Plaintiff appeals.

Affirmed.

E. M Sharon and Jas. D. Shearer for appellant.

Cook & Dodge and Bills & Hass for appellee.

OPINION

ROTHROCK, J.

I.

It is not denied that the plaintiff was the owner of some shoes fixtures, furniture, and tools which were stored on the upper floor of a building occupied by the defendant as a tenant. On the seventh day of April, 1891, the said property was consumed by fire. The matter of dispute between the parties is whether the defendant should pay the plaintiff for the loss. It appears that the plaintiff formerly carried on the boot and shoe business in the building, and that he occupied the same under a lease from Biederbeck & Miller, the owners. By an arrangement with one Vogelmuth, the lease was surrendered, and the owners made a lease to Vogelmuth, who occupied the building from about January 1, 1891. Afterward the lease was changed, and the defendant became the tenant of Biederdeck & Miller. When the plaintiff surrendered the possession of the building, there was an arrangement made with Vogelmuth, by which the old stock of shoes was deposited on the third floor, where they remained until they were destroyed by fire. The conflict in the claims of the respective parties arises upon the arrangement by which the goods were left in store, and the subsequent acts of the parties. Some time before the fire the plaintiff commenced to remove the goods, and was prevented from doing so by the defendant, on the ground that rent was due for the storage of the goods. The plaintiff claimed that no rent was due, for the reason that it was agreed that the rent should be set off against an account which plaintiff held against the defendant for some curtains, window shades, etc., which he sold to the defendant when the possession of the store was given by the plaintiff. We will not set out the evidence nor refer to it further than to say that it was in conflict as to the terms upon which the goods were left in store. Indeed, there was little else than conflict on this question. The two principal parties to the negotiations which culminated in leaving the shoes and other property in the building were E. M. Murray and Vogelmuth. The court submitted the case to the jury on the theory that if any rent was due it was incumbent on the plaintiff to make a tender to the defendant of the amount necessary to discharge that obligation before he could lawfully remove the goods.

II. One ground of the motion for a new trial was certain alleged newly discovered evidence, founded upon an affidavit of which the following is a copy: "I, F. H. Miller, being duly sworn, on oath say that about eight or nine days before the fire which consumed the buildings known as numbers 111 and 113 West Second street, Davenport, Iowa I had a conversation with E. M. Murray as follows: There was a truck standing in front of Max Weber's store, number 111 West Second street, and Mr. Murray, with some assistants, was putting some shoe boxes on...