Nelson v. Fisch
| Decision Date | 15 November 1949 |
| Docket Number | 47501. |
| Citation | 39 N.W.2d 594,241 Iowa 1 |
| Parties | NELSON v. FISCH. |
| Court | Iowa Supreme Court |
Shull & Marshall and Wiley E. Mayne, of Sioux City, and Fitzgerald & Smith and James W. R. Brown, of Omaha, Neb for appellant.
Burton Dull, of LeMars, and Paul E. Dull, of Marshalltown, for appellee.
A preliminary matter demands our attention. We have on various occasions criticized, but condoned, violations of Rule 340 of our Rules of Civil Procedure. See, e.g., Phillips v. Smith, Iowa, 38 N.W.2d 87; Walker v. Walker, 239 Iowa 1055, 33 N.W.2d 413; Lutz v. Cunningham, Iowa, 38 N.W.2d 638; Pfeffer v. Finn, 239 Iowa 24, 30 N.W.2d 481; McManis v. Keokuk, etc., Co., 239 Iowa 1105, 33 N.W.2d 410; Schoeman v. Loyal Protective Life Ins. Co., 239 Iowa 664, 674, 32 N.W.2d 212.
The Record presented here most nearly resembles that in the McManis case supra. It follows a stipulation of the parties 'that appellant's proposed abstract and appellee's proposed amendments will both be set forth in full in the printed record.' This continues the very evil the Rule was intended to cure. It complies with neither its letter or spirit. Rule 340 was designed to provide 'a simple method of preparing a single, coherent, intelligible easily used record of the case as tried' and to avoid the burden of 'trying to piece together the appellants' and appellees' versions of the record in order to ascertain what the true record is.' Cook, Iowa Rule of Civil Procedure, Annotated, pp. 747, 748. The above quotation continues: 'The rule provides for one 'record' settled by the trial judge whose interest is paramount in seeing the case go up on a record that reflects the true state of the facts.'
Here the first 121 pages, in their content, conform to Rule 340(d). They present the testimony largely in narrative form. Then follow approximately 115 pages of appellee's amendment consisting of questions and answers, and objections, rulings and comments of court and attorneys, to be substituted for various portions of the preceding narrative statement of the testimony. Some are repetition of question and answer already set out. The page number references to the parts to be superseded evidently refer to the pages of the typewritten version which is not before us, and the index of the testimony of the various witnesses does not refer to the proposed changes in their testimony as set out in the last part of the document.
We could properly reject the entire Record, taxing its printing cost (450.50) equally to both parties (since they seem to be equally at fault) and require one prepared in accordance with the Rule. However, we have concluded just once more to spare the litigants the expense that would thereby be caused by the failure of their attorneys to observe a rule designed to protect all parties and the trial court by enabling the supreme court to determine exactly the proceedings complained of. The proposed substitutions in appellee's amendment will of necessity be treated more as additions than substitutions, since we have no sure method of knowing what parts of the narrative portions to delete or to be superseded.
Plaintiff is a used car dealer in Omaha, Nebraska; defendant, a taxicab operator in LeMars, Iowa. On February 10, 1948, plaintiff acquired possession of the 1948 black Dodge automobile involved in this case from the King Auto Company, of Omaha, but did not receive the certificate of title until the next day.
However, on the afternoon of the same day (the 10th) he delivered the car (as one of a lot of 15) to one Richardson, a known used car dealer in Hebron, Nebraska, who gave plaintiff his separate personal check for each car. Plaintiff's uncontradicted testimony is that it was agreed between them the Nebraska certificate of title of each car would be attached to the check given for such car and deposited with the check and delivered to Richardson when the check was paid.
The next morning plaintiff paid King Auto Company for the car involved here, received the certificate of title for same, attached it to the check Richardson had given for it, and deposited the check with certificate attached along with similar checks given for other cars. The check was for $2775 and recited for what car it was given. On February 16 he was informed the check had been returned with others of the same group, unpaid on account of insufficient funds. Thereafter plaintiff attempted to obtain payment of the checks from Richardson and succeeded in getting $7170 which, at Richardson's direction, was applied to the payment of checks for cars other than the one here involved. Richardson later absconded (plaintiff says 'shortly after February 10; Laughton thinks February 25) and his whereabouts was apparently unknown at time of trial.
Meanwhile, the week before February 10 defendant, in LeMars, Iowa, desiring a black Dodge automobile, made his wants known to his friend, Laughton, who describes himself as a salesman for United Film Company. It appears, however, he was conducting a quite active side-line in what has come to be euphemistically called the 'new used car' business, a term that aptly illustrates the futility of statutory attempts to circumvent the ancient, and more or less honorable, law of supply and demand.
Laughton was acquainted with Richardson from who he had recently purchased a car, delivered to him at plaintiff's car lot in Omaha, without the certificate, which was however forwarded to him a few days later.
After hearing of defendant's desire Laughton promptly (on Friday, February 6) visited Richardson at Hebron. Richardson undertook to obtain such a car. Laughton paid him $500 down. He admits he already had five other $500 deposits with Richardson at that time. The following day Richardson telephoned Laughton the car would be at plaintiff's lot on February 10. Defendant, being unable to go to Omaha on that date, sent another friend (Shepherd) with Laughton to drive the car home.
On the night before Laughton and Shepherd started for Omaha defendant paid Laughton $2100 in cash. Laughton admits he paid Richardson only $1850. On the next night (the 10th) defendant was informed Shephered had brought the car to LeMars but that it was without the certificate of title--that the papers would be along in about five or six days. Defendant says Laughton told him he (Laughton) would keep the car in the garage until the papers came through. Later Laughton told him Richardson 'had skipped out and left the country.'
We have thus far stated the uncontradicted testimony from both sides. Concerning the events at plaintiff's car lot at Omaha on February 10th the testimony is in some conflict. But the case is one at law, tried to the court without jury, and of course reviewable here on errors only. The findings of fact of the trial court are conclusive so far as sustained by sufficient evidence. Unfortunately the trial judge did not comply with Rule 179, R.C.P., requiring findings of fact and separately stated legal conclusions.
However, he did expressly find (No finding of fact is made as to the knowledge of defendant and his representatives.)
Defendant-appellee does not question that these findings have support in the Record. In fact he invokes the rule that 'findings of fact in jury-waived cases shall have the effect of a special verdict.' Rule 334, R.C.P. Of course the trial court, in using the expressions 'selling' and 'sold,' was not referring to technical passing of title which, under the Nebraska statute, hereinafter referred to, can only occur by issuance of a certificate of title. Whether there was a transfer of ownership was a question of law which the trial court seems to have by-passed, resting the decision on the proposition plaintiff was estopped, or had waived the right, to repossess the car from defendant to whom Richardson had 'sold' it.
Plaintiff on appeal lists nine errors but his brief argues them in four divisions: I. The transaction was in Nebraska and subject to the statutes of that state, specifically, Section 60-105, Revised Statutes, Supplement 1947; II. The court erred in holding defendant was a bona fide purchaser; III. The court erred in holding the plaintiff was estopped because the elements of estoppel are not shown; and, IV. The court erred in finding there was a 'sale' from plaintiff to Richardson, if by such holding was meant a transfer of ownership.
We make no attempt to follow this order in our consideration of the case.
I. The finding that defendant (through 'his authorized representatives') was in effect dealing directly with Richardson is conclusive that the transaction was in Nebraska and subject to the statute of that state. That statute provides, so far as material here: ...
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