Rice v. Friend Bros. Co.
| Decision Date | 14 February 1917 |
| Docket Number | No. 29109.,29109. |
| Citation | 161 N.W. 310,179 Iowa 355 |
| Parties | RICE ET AL. v. FRIEND BROS. CO. ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; William Hutchinson, Judge.
A demurrer was sustained to a counterclaim filed by the defendants in a suit against them for the purchase price of some paint delivered to them. At the close of the trial, a verdict was directed against the defendants. Subsequently a motion for new trial, filed by defendants, was sustained, and the plaintiffs appeal from that ruling. Affirmed.
On rehearing. For former opinion, see 146 N. W. 748.J. W. Hubbard and Henderson & Fribourg, all of Sioux City, for appellants.
Lynn & Hallam, of Chicago, Ill., and Geo. W. Finch, of Sioux City, for appellees.
I. There was a counterclaim and amendments which in their essence allege that in August, 1908, defendants received from the United Commercial Company, a corporation existing under the laws of California, a certain quantity of so-called roof paint, to be used in the business of defendant; that the shipment sent was upon a purchase made of certain agents of said company, who are now the plaintiffs suing for the price by reason of an assignment made to them, without consideration, and merely for convenience in suing and collecting, and which they took with knowledge that the paint shipped had proven worthless; that the sale was effected on representations made by the company, and its said officers, agents, and successors, that the paint to be shipped was good paint, and well calculated to give good service as a roof paint; that the representations made by said assignees as officers and agents of the seller were what principally induced defendants to buy; that these officers and agents stated they would warrant and guarantee said paint to be of good and lasting quality, and first-class roof paint, and, if the same did not prove to be as thus represented, defendants need not retain same, but might return it without charge or compensation; that, in addition thereto, there was a written guaranty accompanying the shipment, which paper has been lost. It was signed by one of the assignee plaintiffs, and was, in substance, that the company of which the signer was president guaranteed the paint was a good and serviceable roof paint, guaranteed to be such for a term of five years after placing it upon a roof, and that it was especially calculated for wood, felt, iron, and tin roofs. It is further averred, in effect, that the paint was utterly worthless; that it destroyed roofs upon which it was placed, instead of being a benefit to them; and that this has damaged the defendants as stated in an exhibit attached to the counterclaim as part thereof. It appears in the counterclaim that July 27, 1909, the defendants wrote the company expressing entire dissatisfaction with the character and endurance of the paint received, and that, instead of lasting five years, a roof thoroughly painted early in May needed repainting then; that the roof is as dry as if it had not been painted; that the body of the paint rubs off under the finger like dry dust; that the paint was taken on the company's guaranty as a good and serviceable article, which it proves not to be; and that the unused part of it is at the disposal of the company.
To this counterclaim a demurrer was interposed. The demurrer is, in effect: (1) The counterclaim shows a cause of action, if any, against the company, is based on its sale, guaranty and warranty, and the company is not a party to the action. (2) The guaranty and warranty pleaded prescribes the remedy which must be pursued, namely, the return of the goods without charge. (3) There being an allegation that defendants by their letter elected to exercise their right under said guaranty and warranty to return the paint without charge, this is an election which precludes them to claim damages for a breach of warranty. (4) The damages pleaded are too remote and speculative to be recovered on as a result of the alleged breach of warranty. (5) There is no right to recover against the plaintiffs, because it is not shown the cause of action relied on in the counterclaim arose out of the contract set forth in plaintiff's petition, or in connection with the subject of the action. (6) That the assignee plaintiffs are not shown to have assumed or to have had any consideration for assuming the alleged guaranty and warranty, because it is not alleged that any part of the purchase price was paid to plaintiffs. (7) There is no cause of action against plaintiffs because the alleged statements and representations were no more than expressions of opinion as to the merits of the paint. (8) The contract of sale relied on is written, and defendants may not change it or add to it a parol agreement or warranty. (9) Any attempt to hold the assignees liable is an attempt to make them assume the obligations of another, and is within the statute of frauds, because such assumption must be and is not evidenced in writing. (10) There is no allegation that plaintiffs knew representations made to be false when made.
This demurrer was sustained. A new trial was granted on a motion asserting it was error to sustain the demurrer. As said, this is an appeal from the granting of new trial. If it was error to sustain the demurrer, it was not error to sustain the motion for new trial.
[1] 1a. Something is claimed for the fact that the defendants did not appeal from the sustaining of the demurrer, and cases relied upon by appellee are well distinguished by appellant, in that they do involve direct appeals from ruling on demurrer. But we think this is an immaterial contention. The statute makes it a ground for new trial if error in law was committed upon the trial and duly excepted to. Section 3755, Code 1897. The question therefore is, not what we should do if the ruling had been appealed from, but whether the trial judge erred in sustaining the motion for new trial on the ground that he had erred in sustaining the demurrer. In other words, one who desires to complain that a demurrer was sustained may present that complaint by appeal, or by motion for a new trial. It is only if he does neither that the ruling becomes that finality which appellant contends it is here.
[2] 1b. The motion prayed a new trial on the ground that error had been committed in sustaining the demurrer, and asked, in addition, that said ruling be set aside. The ruling sustaining the motion recites that the same is sustained in so far as it prays a new trial and to set aside the verdict. The failure to speak in express terms concerning the setting aside of the ruling on demurrer is thought to affect the right to have the ruling on demurrer reviewed as a step in reviewing the propriety of granting the new trial. The only concern we have with the sustaining of the demurrer is on whether the court erred in holding at the last that it had erred in sustaining the demurrer. For the purposes of such limited inquiry, it is ample that a motion for new trial was sustained on the ground that error was committed by sustaining the demurrer.
[3] 1c. We think the contention that the counterclaim is not connected with the subject of the action is without merit. The suit is for the price of paint sold. The counterclaim arises out of what happened in connection and on account of that sale, and we think that section 3570, Code 1897, sustains that this is a proper counterclaim.
[4] It may be conceded that some of the items sought to be recovered for are too speculative. Others are not. And, if a single item is recoverable, sustaining a demurrer on the ground that no recoverable damages were pleaded is error.
[5] Attempting a rescission and being found not entitled to it did not estop the buyer, in the same suit in which the attempt was made, from setting off damages in reduction of the purchase price. This will have more extended attention in another connection.
[6][7] As defendants are not claiming upon fraud and deceit, it is immaterial argument that the pleading is bad, because it does not aver the assignee plaintiff made representations knowing same to be false. Moreover, the assignee may not avoid by showing he did not know representations made were false if his assignor made them, so knowing.
[8] That there was no allegation the assignee received any consideration is not material. Nor is here a case of obligation to pay the debt or perform the undertaking of another which must be in writing to avoid the statute of frauds. Neither consideration received nor written assumption are requisite to charge these assignees with any defense which would prevail against their assignor. There is but one test. If the company had not made assignment of its claim for the price, would this counterclaim lie against the company? If it would, then, as we view it, express provisions of our statute permit it to be lodged against assignees, even though they had paid consideration and had had no knowledge that they were buying a claim as to which the consideration had failed. See Code 1897, §§ 3047 and 3461; Hayes v. County, 118 Iowa, 569, 92 N. W. 860;Thomassen v. De Goey, 133 Iowa, 278, 110 N. W. 581, 119 Am. St. Rep. 605;Thomas v. Bank, 99 Iowa, 202, 68 N. W. 780, 35 L. R. A. 379;Sherman v. Hale, 76 Iowa, 383, 41 N. W. 48;Downing v. Gibson, 53 Iowa, 517, 5 N. W. 699; and Separator Co. v. Sharpless, 134 Iowa, 28, 111 N. W. 438. We are at a loss to understand how one who sells paint representing it to be of a quality fit for a known and intended use can defeat recoupment by the buyer because the paint proves worthless, by the simple expedient of turning the claim for the price over to some of its officers or agents and arranging to have them sue upon it.
We do not care to indulge in any fine-spun distinction between set-off and counterclaim. We think the statute counterclaim includes the common law and “Revision” aspect of set-off. We plant ourselves upon ...
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