Seevers v. Cleveland Coal Co.

• Decision Date: 20 November 1912
• Parties: SEEVERS v. CLEVELAND COAL CO.
• Court: Iowa Supreme Court

158 Iowa 574

138 N.W. 793

SEEVERS

v.CLEVELAND COAL CO.

Supreme Court of Iowa.

Nov. 20, 1912.

Appeal from District Court, Wapello County; Frank W. Eichelberger, Judge.

Action to recover an alleged balance due on salary for certain alleged reductions obtained by plaintiff on coal options secured for defendant, and commissions for the finding of a purchaser for certain lands owned by the defendant in this state. Defendant filed an answer tendering an issue on each of these claims and setting forth certain counterclaims against the plaintiff. This counterclaim was in two counts or divisions, and thereto plaintiff filed a reply in which he admitted part of the items thereof and denied and explained certain others. On these issues the case went to a jury; the court instructing that plaintiff had not shown himself entitled to anything for salary. On the other issues, the jury found for defendant on plaintiff's claim to reductions from option prices; for the plaintiff on his claim to commissions, and for defendant on the two items of counterclaim, although the allowance on the second count was for less than was claimed. Defendant moved for judgment on the items found in its favor on the counterclaims, but these were overruled, although the court deducted the amount of these allowances from the amount awarded plaintiff as commissions, and rendered judgment for plaintiff for the amount of these commissions so found, less the allowances to defendant on its counterclaims. Defendant alone appeals. Reversed and remanded.McNett & McNett and J. C. Mitchell, all of Ottumwa, for appellant.

S. V. Reynolds and John N. McCoy, both of Oskaloosa, and Jaques & Jaques, of Ottumwa, for appellee.

DEEMER, J.

As plaintiff has not appealed, the first two counts of his petition are eliminated; the first by direction of the trial court, and the second by verdict of the jury. The jury found for plaintiff on the third count, and for the defendant on the two items of counterclaim, and, after deducting the allowances on the counterclaim, judgment was rendered against defendant in the sum of $15,357.86. Defendant's motion for a new trial was overruled, and the court taxed one-half the costs to each party. The appeal challenges many rulings of the court during the trial, and it is claimed that defendant was entitled to separate judgments on the two items allowed it by the jury on its counterclaim. That the exact issues on the third count of plaintiff's petition may be understood, it is necessary to refer to that pleading and its numerous amendments at some length. In the original petition, plaintiff alleged that, in virtue of an oral agreementbetween him and the defendant made on or about May 23, 1904, he was to have a 5 per cent. commission on any sale or for the procuring of a purchaser for any of the coal lands belonging to defendant; that he found a purchaser for certain tracts in Marion and Lucas counties which he had optioned for the defendant, and that defendant made sales to this purchaser in September of the year 1905 for $302,150, and that his commission thereon amounted to $15,107.50. In an amendment to this count, he averred that his contract for commissions was made with one Glenn W. Traer, president of defendant company at Chicago, as alleged in his petition; that he procured the Consolidated Indiana Coal Company as a purchaser of the coal lands, or was instrumental in bringing purchaser and seller together: that, he interested Robert Lee and Carl Scholz, representing the purchasing company, in the lands; and that by means of his efforts with them the sales were made. In another amendment to this count he averred in substance that be, beginning in the year 1903 and continuing down to September 15, 1905, when the contract of sale was closed, was engaged in trying to find a purchaser, and that he finally succeeded in doing so, and that defendant sold the lands to the purchaser procured by him, to wit, the Consolidated Indiana Coal Company. He also averred, in this connection, that these services were extra and not covered by his regular contract of employment with defendant, and that the reasonable value of his services was 5 per cent. on the purchase price, or $15,107.

Defendant denied that it employed plaintiff to find a purchaser for its coal lands, and further pleaded settlements with and payments to the plaintiff for services performed by him of every kind and character. It also pleaded an accord and satisfaction. In its counterclaim it asserted that plaintiff had collected $700 in rentals for lands belonging to defendants, for which he had not accounted, and it asked judgment for that amount, less the sum of $13.71, paid by plaintiff on account of some repairs. In another count it pleaded that plaintiff, while taking options for coal lands in Marion county for one Osgood, had wrongfully appropriated to his own use, between January and October, the sum of $3,500, which amount was repaid by means of a loan received by plaintiff upon a note signed by a farmer with whom he had been negotiating for lands as security, but that plaintiff failed and neglected to pay the interest on the amount used by him, which amounted to the sum of $263.50, and as assignee of Osgood's claim for interest it asked judgment for the amount thereof. Plaintiff admitted the receipt of the rents and said that he retained them to apply on his claim for commissions, etc. As to the second count of the counterclaim, he admitted that he borrowed the money to replace the amount retained by him because he discovered this amount was a special fund, but he denied that he should be charged with interest.

In an amendment to his petition, and doubtless to meet some of the issues tendered by the answer, plaintiff averred: “That during the time that he was performing the services earning the commissions and the rebates for which this suit is brought, Glenn W. Traer was president of the Cleveland Coal Company, and also president of the Whitebreast Fuel Company of Illinois, both of which companies were owned by the same stockholders, managed by the same board of directors, and were in fact a corporation within a corporation. So far as plaintiff understood it, the Whitebreast Fuel Company was the holding company or the agent of the defendant company, and that, while the services for which he brings this suit were rendered, as claimed by him, for the Cleveland Coal Company, whatever amounts of money were paid him for wages, commissions, or rebates were paid through the Whitebreast Fuel Company of Illinois, and receipts and vouchers were made by him to that company, but as a rule the vouchers and receipts showed the proportion of the money so paid on behalf of the Cleveland Coal Company, the defendant herein. This amendment is made simply for the purpose of more clearly getting before the court and jury the exact situation.” To this defendant answered as follows: “It admits that, during the period for which plaintiff claims additional amounts for services rendered, the said Glenn W. Traer was president of the Cleveland Coal Company, defendant, and was also president of the Whitebreast Fuel Company of Illinois, but expressly denies each and every other averment stated in said amendment to petition, except that it further admits that the plaintiff was paid for his services in full by the Whitebreast Fuel Company of Illinois, by which company he was employed and paid, and to which company he executed his receipts and vouchers for his services.”

That one of defendant's pleadings may be better understood, we here quote therefrom as follows: “The defendant says that plaintiff was paid for his services, covering the period for which he sues, by the Whitebreast Fuel Company of Illinois, by whom he was employed. * * * Defendant says that plaintiff's contract with said Whitebreast Fuel Company of Illinois for services performed by him, and for which he was paid at the rate of $5 per day, was in parol, and was also implied from his acceptance and receipt from said Whitebreast Fuel Company of Illinois from month to month at the rate of $5 per day, and his statements of account rendered therefor. * * * The defendant says that between March 3, 1904, and April 3, 1905, no moneys were sent by either J. C. Osgood or the defendant to the plaintiff, but between said dates the Whitebreast Fuel Company of Illinois sent the plaintiff for and on its account with such J. C. Osgood about $59,000, and about $13,650 for or on its account with defendant. * * * Defendant says that at the time, and for the period stated, Glenn W. Traer was the president, and J. M. Blee was the treasurer and assistant secretary, of the defendant.”

In this manner we have endeavored to extract the substance of pleadings covering about 38 printed pages of the abstract. In some respects the issues are simple; but in going to the record which consists of an abstract of 739 pages, amended abstracts of a few pages, and briefs and arguments aggregating over 400 pages, that which might otherwise be regarded as simple becomes exceedingly complex. Involved in the transactions disclosed by the testimony are the following organizations: The Whitebreast Fuel Company of Illinois, an Illinois corporation, the St. Paul Coal Company, an Iowa corporation, the Cardiff Coal Company, an Illinois corporation, the Crestline Syndicate, a group of individuals operating in Polk county, or what is known as the Des Moines field, the defendant, the Cleveland Coal Company, an Iowa corporation, and the Rock Island Railway Company had a mining department and it cuts some figure in the case. In addition to these there was what is known as the Consolidated Indiana Coal Company, a corporation, the major part of whose stock and securities were held by the Rock Island Railway Company. This consolidated Indiana Coal Company was the purchaser of the lands for the sale of which plaintiff asks a commission. The deed of the lands to this...