Oswalt v. Cronk

CourtUnited States State Supreme Court of Iowa
Citation190 N.W. 162,195 Iowa 230
Docket Number34834
PartiesED OSWALT, Appellee, v. C. H. CRONK, Appellant
Decision Date17 October 1922

REHEARING DENIED FEBRUARY 13, 1923.

Appeal from Davis District Court.--D. M. ANDERSON, Judge.

ACTION at law, to recover damages for fraud and misrepresentation. The facts appear in the opinion. Plaintiff recovered verdict on each count of the petition, and defendant appeals.--Affirmed in part; reversed in part.

Affirmed in part; reversed in part.

Roberts & Webber, for appellant.

Payne & Goodman, for appellee.

FAVILLE J. PRESTON, C. J., EVANS, STEVENS, and ARTHUR, JJ., concur.

OPINION

FAVILLE, J.

The appellant is the owner of a farm of about 200 acres in Davis County, Iowa, upon which, in April, 1918, he had a considerable amount of stock, farm implements, etc. On or about the 1st of April, 1918, the appellant and appellee entered into a written contract, by which the appellee agreed to buy a one-half interest in the stock and personal property on appellant's farm, and said agreement provided that the appellee should enter upon said farm and conduct and manage the same for a period of five years from March 1, 1918. The contract provided that the proceeds of the said farm and the stock thereon should be divided equally between said parties. The appellee, being unable to pay cash for his one-half interest in the stock and personal property on the farm, after the same was invoiced, gave to the appellant his note for $ 3,294.70 for the purchase price of the same. The appellee went into possession of said farm on or about the 2d day of April, 1918, and proceeded to conduct the same under the said contract.

In October, 1919, the appellant herein brought an action in equity in the district court of Davis County, against the appellee. In said action, the appellant set up the written contract and partnership agreement previously referred to, and alleged that the appellee herein had taken possession of said premises, and that he had violated the terms and conditions of said contract between the parties, in that he disposed of certain of said property without the consent of the appellant; that he had failed to keep up the fences and look after the stock and properly feed the same; that the property was being grossly neglected and was greatly depreciating in value; that some of the stock was practically starving to death; and that it was absolutely necessary that someone be placed in charge of the same immediately. The appellant alleged also in said petition that the appellee had expressed a determination not to continue under said contract, but to abandon the same, and had refused to consent to a sale of the property, or to feed certain of the stock and prepare them for market. Said petition also alleged that the appellee herein was insolvent, and had neglected and refused to carry out the contract, and that, in order to protect the property and close up the partnership matters, it was necessary that a receiver be appointed to take immediate charge of the personal property on said farm. The appellant, as plaintiff, prayed that the partnership be wound up; that he have judgment for the amount due on the note for the purchase price of one half of the property; that a restraining order be issued, restraining the appellee herein from interfering in the care of said stock; and that a receiver be appointed, to take charge and control of the same; and for general equitable relief.

The appellee herein appeared and filed an answer to the petition in said equity cause, and admitted the contract between the parties; admitted his possession of the farm, his liability on the note for one half the purchase price of the personal property; denied that he had violated the terms of the written contract; denied that he had sold or destroyed the property or neglected the same; denied that there was any ground for the appointment of a receiver; denied that the appellant had furnished to the appellee all of the property that was agreed to be furnished under the written contract; and denied that he had been guilty of any of the acts or conduct with reference to the partnership matter that in any way authorized a dissolution of the partnership, which was formed to extend for the period of five years. He also alleged that he had permitted the appellant herein to dictate the management of the farm and of the stock and the feed thereof and the times of sale, and that appellant had undertaken, by his conduct, to create strife and dissension between the parties, for the purpose of gaining an advantage with reference to the assets of the partnership, and for the purpose of terminating the same at a time and in a manner advantageous to himself. The appellee prayed that the appointment of a receiver be denied; that the injunction be dissolved; and that the appellant's petition be dismissed.

With the issues so tendered in said equity case, the parties entered into a stipulation of settlement in writing, whereby it was agreed between the parties that the property should be sold at a public sale; that the temporary receiver should continue to act as such until such sale; and that the appellant herein should have possession of the premises, except the house, which was to be retained by the appellee until the adjustment of the accounts between the parties. The stipulation provided that the appellant was to furnish, so far as known, the identity of the animals and the pedigree of such animals as were pedigreed at the time they were invoiced to the partnership, and that the appellee should furnish, so far as he knew, information or certificates as to the offspring of said animals prior to the date of the sale.

Subsequently, in January, 1920, said cause came on for hearing, and a decree was entered by the court. The decree recites the fact that the parties had entered into a stipulation of settlement, and that in pursuance thereof the property had been sold at public sale; that objections had been made to one item of $ 140.65; and that the court, in consideration of the evidence, reduced the same in the amount of $ 100, and settled the account between the parties, finding that there was a net balance due to appellant from the appellee of $ 4,056.23. The decree adjudged that the partnership be dissolved; that the costs in the case be paid out of the proceeds of said sale and the net proceeds equally divided; and that possession of the property be surrendered prior to January 7, 1920.

The parties fully performed the terms and conditions of said decree, and thereafter, in September, 1920, the appellee commenced this action at law. His petition is in four counts. In Count 1 he alleges the making of the written contract of partnership heretofore referred to, and alleges that the appellant herein had refused to co-operate in said partnership enterprise, and had brought on strife and dissension, and had instituted said injunction suit and action for dissolution of said partnership for the purpose of forcing a dissolution thereof; that because of said act, the appellee was forced to vacate said farm and give the appellant possession thereof; and that, by reason of the termination of said contract, the appellee had suffered loss of the use of said farm for 3 1/2 years of said original term. He prayed damages therefor in the sum of $ 3,500.

In count 2 of his petition, appellee alleges that, for the purpose of defrauding the appellee, the appellant had stated to him, as an inducement to enter into said contract, that all of the stock on said farm was registered, and that the offspring of said stock could and would be registered; and that the appellant, at said time, intended to induce the appellee to contract with him and raise a large quantity of stock to a salable age and then to refuse to register them, but to put them up at a forced sale without registration, and buy them in at a much less price than their regular value, and to thereafter register them; and that the appellant had done said things frequently, and had willfully refused to register said animals; and that by reason thereof the appellee had been damaged in the sum of $ 3,562.50.

In Count 3 of his petition, the appellee alleges that, in order to induce the appellee to enter into said partnership contract, the appellant had represented to him that he would sell a half interest in the stock and property on said premises at a price that the appellant had previously paid for the same; that the appellant had orally represented to the appellee that he had paid for said property certain specified amounts; that said representations were false, and that the appellant had not paid for said property the amounts so stated; and that, by reason thereof, the appellee was defrauded out of the sum of $ 665.33.

In Count 4 of his petition, the appellee alleges that the appellant had falsely and fraudulently represented to him that he had taken five loads of oats from a certain bin, when, in fact, he had taken six loads; and that the appellant had thereby appropriated to his own use oats to the value of $ 16.20.

To said petition, the appellant filed his answer, admitting the allegations with regard to the formation of the partnership; and that he brought the injunction suit to dissolve said partnership. All of the other allegations of said petition were denied, and the appellant pleaded the former action in equity, heretofore referred to, as a full and complete adjudication of all the matters involved in this action.

Under the issues so joined, the cause was tried to a jury, which returned a verdict for the appellee upon each count of said petition.

I. The first question for our consideration is whether or not the appellant's plea of a former adjudication should have been...

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1 cases
  • Oswalt v. Cronk
    • United States
    • United States State Supreme Court of Iowa
    • October 17, 1922

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