Rand v. Wiley

• Decision Date: 29 October 1886
• Citation: 29 N.W. 814,70 Iowa 110
• Parties: RAND AND ANOTHER v. WILEY AND OTHERS.
• Court: Iowa Supreme Court

70 Iowa 110

29 N.W. 814

RAND AND ANOTHER

v.WILEY AND OTHERS.

Supreme Court of Iowa.

October 29, 1886.

Appeal from Wapello circuit court.

Action in chancery. The cause was sent to a referee, and, upon his report, a decree was had for plaintiffs. Defendants appeal.McNett & Tisdale, for appellants.

Chambers & McElroy and H. B. Hendershott, for appellees.

BECK, J.

1. The plaintiffs allege in their petition that they recovered a judgment against the Ottumwa Water-power Company, which became a lien upon the property and franchises; that defendant S. L. Wiley & Co. had purchased the property of the company at a sheriff's sale, upon a judgment for mechanics' liens in their favor, and held a certificate under which they would be entitled to a deed upon the expiration of the time for redemption; that it was the purpose of defendants to acquire the ownership of the company's property in order to use it in supplying the city of Ottumwa with water, and that, to enable them to carry out their plans, they proposed to acquire all liens upon the property, and to this end made contracts with one Langford and plaintiffs. The action was brought at law, upon the contract, with plaintiffs. Langford was made a party after the suit was commenced, and it was transferred to the chancery docket. Other allegations of the petition, in the view we take of the case, need not be recited.

It is necessary, in order to present a clear understanding of the case, to set out in full the contract with plaintiff upon which this suit is brought. It is in the following language:

“This contract, made and entered into this eighth day of July, A. D. 1879, by and between S. L. Wiley & Co., parties of the first part, and Rand & Carson, parties of the second part, witnesseth that whereas, the parties of the second part have a judgment lien against the Ottumwa Water-power Company for the sum of twenty-two hundred and ninety dollars, ($2,290;) and whereas, there is a question as to the priority of same; and whereas, S. L. Wiley has purchased (in trust) the Ottumwa Water-power Company's property, works, and franchises at sheriff's sale, and received a certificate of sale for same; and whereas, the Ottumwa Water-power Company assigned to J. E. Langford the capital stock subscriptions that were unpaid, to satisfy his claim against said company; and whereas, the said J. E. Langford has entered into a contract with the parties of the first part, a copy of which is hereto attached and made a part of this contract: therefore the parties of the first part, for the purpose of preventing litigation as to the priority of second party's lien on the said property of the Ottumwa Water-power Company, hereby agrees with second party that, in consideration of settlement of claim to priority, and the assignment of the said lien and claim of the second parties to them, they will assign and transfer all their right, title, and claim in and to the unpaid subscriptions to the capital stock of the Ottumwa Water-power Company, vested in them under and by virtue of the contract with J. E. Langford aforesaid; and that they will faithfully fulfill the said contract with the said J. E. Langford, and obtain title from him to said subscriptions at the time stipulated in said agreement with said Langford, and assign and convey same to the parties of the second part, upon the organization of a new water-power company; at which time the parties of the second part shall assign and convey to the parties of the first part all their right and title in and to their said claim against the Ottumwa Water-power Company now in judgment; and, after the expiration of said time, this contract shall operate as an assignment and conveyance of the first parties in interest in and to their rights, title, and interest aforesaid, in and to the subscriptions to the capital stock of the said Ottumwa Water-power Company, to the second party; and also the assignment and transfer of second parties' interest in and to their said claim against the Ottumwa Water-power Company; and, in neglect or the refusal to make the evidence of said transfer and assignment by either or both of the parties hereto, then this contract shall be evidence of same on and after the expiration of the time aforesaid, and shall operate as evidence of the respective transfers of the respective rights and interests of the first and second parties, as above provided and stipulated.

+------------------------------------------+
                ¦Ottumwa, July   8, 1879.¦S. L. WILEY & CO.¦
                +------------------------------------------+
                

RAND & CARSON.

By CHAMBERS & MCELROY, their Attorneys.”

The contract with Langford, referred to and made a part of the foregoing, is as follows:

“This agreement witnesseth that S. L. Wiley & Co., of the first part, and J. E. Langford, of the second part, have agreed that, in consideration that said J. E. Langford hereby dismisses his part of the case in the circuit court of Wapello county, Iowa, wherein J. G. Hutchison, trustee, is plaintiff, and Ottumwa Water-power Company is defendant, and has and does hereby relinquish all claim for mechanics' liens, by suit to resist the issuing of execution by said J. G. Hutchison, trustee, to sell the property of said Ottumwa Water-power Company under the decree now in his favor as such trustee, or otherwise, and dismisses absolutely any claim and demand against said Ottumwa Water-power Company, whether by suit or otherwise, against the rights of said J. G. Hutchison, as such trustee, except his (J. E. Langford's) claims and suits to collect the unpaid balance of said subscriptions which were assigned to him by the said Ottumwa Water-power Company; therefore the said S. L. Wiley & Co. agree that, after the said J. E. Langford shall have collected all the said subscriptions, and applied the same to the satisfaction of his judgment against the said Ottumwa Water-power Company, which may be available and collectible, the said S. L. Wiley & Co. hereby guaranty to said J. E. Langford that he shall have issued to him stock to the amount of the balance of his judgment which shall remain unsatisfied out of said subscription, in a new Ottumwa Water-power Company, which shall be organized after the sale of the property of the present Water-power Company, under the decree in favor of the said Hutchison, trustee, on the Price or...