Nelson v. Lindsey

Decision Date04 April 1917
Docket NumberNo. 31001.,31001.
PartiesNELSON v. LINDSEY, SHERIFF.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.

Action by the plaintiff against the sheriff to recover the value of an automobile alleged to be the property of the plaintiff and wrongfully attached by the sheriff as the property of another. The real defendant in interest is Florine, the attachment creditor. The debtor in the attachment suit was Gray, an automobile dealer. Upon trial to a jury there was a general verdict and special findings for the plaintiff, and the defendant appeals. Affirmed.Thos. Q. Harrison and Mayne & Green, all of Council Bluffs, and Wm. Mulvaney, of Cherokee, for appellant.

Tinley, Mitchell, Pryor & Ross and Kimball & Peterson, all of Council Bluffs, for appellee.

EVANS, J.

Gray was an automobile dealer engaged in business at Council Bluffs and making a specialty of handling the Crescent Ohio automobile. He had little, if any, available capital. While so engaged in such business and on October 1, 1913, Gray obtained from Florine the sum of $2,000. At the same time, the following writing was signed:

“In consideration of $2,000.00 to be invested by L. Florine of Cleghorn, Ia., with E. E. Gray of Council Bluffs, Iowa, in a wholesale automobile business: that E. E. Gray is to give Mr. Florine's son, Philip the best instructions he can in a business way and also to pay him a nominal salary as E. E. Gray would feel justified in paying him without consideration of the amount of money invested. That in consideration of the said $2,000.00 Mr. Florine is to draw one-eighth net profits derived from the business, to be computed at the end of each fiscal year, beginning with September 1st, 1913.

L. Florine.”

Subsequently, other amounts were borrowed by Gray from Florine, and notes were executed therefor. For money so advanced and loaned, Gray was owing Florine on October 5, 1914, about $8,000 for which suit was brought by Florine against Gray aided by attachment. A writ of attachment was levied upon all the automobiles in the possession of Gray at that time.

The claim of plaintiff to one of such automobiles is founded upon a transaction between him and Gray in August, 1914, whereby the plaintiff ordered an automobile from Gray and then and there paid him the purchase price therefor by check. The plaintiff was himself a small dealer in the town of Arion, and had a contract with Gray whereby a discount was agreed upon between them, and whereby Gray agreed to furnish him a Crescent Ohio automobile at a reduced rate giving him the benefit of a dealer's discount. It is claimed for the plaintiff that on or about October 1, 1914, he went to Council Bluffs and selected his particular car, and that by agreement with Gray it was then and there set apart to him and held for his use; the roads at that particular time being too muddy to permit the driving of the car to the plaintiff's home. That the plaintiff bargained for a car and paid for it in advance is proved beyond dispute. That prior to the attachment he had selected the car, and that the same was set apart to him, was testified to both by the plaintiff and by Gray. At this point evidence in denial was put in on behalf of the defendant. For the plaintiff it was contended that the defendant had actual notice of his purchase, and also that he was charged with notice thereof as a matter of law by reason of his alleged joint interest in the business with Gray. For Florine it was denied that he had any actual notice of the claim of the plaintiff, and likewise denied that he had any joint interest in the business which would charge him with notice.

[1] The foregoing presents the general nature of the facts involved. The principal attack of the appellant is upon the instructions of the trial court. Special complaint is directed against the instructions that dealt with the matter of the interest if any, of Florine in the automobile business under and by virtue of the contract above set forth. The trial court instructed the jury that the written agreement above set forth purported on its face to create in Florine an interest in the business to such an extent that he would be charged with notice of the sale to plaintiff by Gray, if any. Special complaint is directed to this instruction. The brief of appellant is directed at this point wholly to the proposition that the contract in question did not create a partnership between Gray and Florine, in that it imposed upon Florine no obligation to share any part of the losses of the business. It may as well be assumed for the purpose of this case that a partnership was not created between Gray and Florine. Clark v. Barnes, 72 Iowa, 563, 34 N. W. 419;Winter v. Pipher, 96 Iowa, 17, 64 N. W. 663;McBride...

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2 cases
  • Denny v. Guyton, 28922.
    • United States
    • United States State Supreme Court of Missouri
    • May 27, 1931
    ...Pac. 449; Tusant & Son Co. v. Chas. Weitz Sons, 195 Iowa, 1386, 191 N.W. 884; Fletcher v. Fletcher, 206 Mich. 153, 172 N.W. 436; Nelson v. Lindsey, 179 Iowa, 862; Livingston v. Lewis, 109 Kan. 298, 198 Pac. 952; In re Taub, 4 Fed. (2d) 993; Elliott v. Timber Co., 117 Ore. 387, 244 Pac. 93; ......
  • Nelson v. Lindsey
    • United States
    • United States State Supreme Court of Iowa
    • April 4, 1917

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