Seevers v. Cleveland Coal Co.
| Decision Date | 19 June 1914 |
| Docket Number | No. 29366.,29366. |
| Citation | 147 N.W. 761,166 Iowa 284 |
| Parties | SEEVERS v. CLEVELAND COAL CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Wapello County; F. M. Hunter, Judge.
The opinion states the case. Affirmed in part and reversed in part.
See, also, 158 Iowa, 574, 138 N. W. 793.S. V. Reynolds and McCoy & McCoy, all of Oskaloosa, and Jaques & Jaques, of Ottumwa, for appellant.
McNett & McNett and J. C. Mitchell, all of Ottumwa, for appellee.
The plaintiff brought an action at law to recover upon alleged causes of action stated in three counts of his petition. First. That under an oral agreement with the defendant he performed services in its behalf during the period from January 26, 1903, to October 13, 1905, in securing options for the purchase of coal lands by the defendant and in preparing abstracts of title, and in various ways, and that the services so rendered were reasonably worth $14,500. He also demands the same recovery as upon an implied contract. Second. That at the request and direction of the defendant he undertook to obtain reduction of the price of certain options held by it for the purchase of certain coal lands for which service it was agreed he should receive compensation to the amount of one-half the reduction so secured. He alleges that he did perform this service, and under the terms of the agreement he thereby earned $8,475, for which he seeks a recovery. Third. That under a further oral agreement with defendant he found and produced a purchaser to whom defendant sold a large amount of coal property, whereby he became entitled to a commission upon said sale for $15,107.50. Various amendments were made to the original petition, but the foregoing sufficiently states plaintiff's claim for the purposes of this appeal. The answer denies the claims sued upon. It is further pleaded that during the time when plaintiff claims to have earned the several amounts which he seeks to recover, he was regularly employed in the defendant's service at the stated wage of $5 per day, which sum was regularly paid to and received by him in full satisfaction for all work, labor, and service done or transacted by him in defendant's behalf. Defendant further pleads counterclaims against plaintiff for moneys collected, had, and received by him on account of defendant, and for other sums alleged to have been misappropriated by him. Upon trial to a jury a general verdict for plaintiff and special findings were returned as follows: Under direction of the court a verdict against plaintiff on the first count of his petition. The jury also found specially that plaintiff was not entitled to recover anything upon the cause of action stated in the second count, but was entitled to recover, upon his claim for commissions as stated in the third count of his petition, $16,250. It was further specially found that defendant was entitled to recover on its counterclaims an aggregate of $892.14. The general verdict for plaintiff was for the difference between these sums, $15,357.86. Upon the coming in of the foregoing verdict and findings, the court on December 23, 1910, entered an order giving the plaintiff until the first day of the next term to move for a new trial on the first and second counts of his petition, also giving the defendant the same length of time to move for new trial with respect to the issues upon which the jury found for the plaintiff. On January 7, 1911, the defendant filed a motion for judgment in its favor on the issues joined upon the first and second counts of the petition, and also upon the defendant's counterclaim. At the same time defendant moved for a new trial upon the third count or claim for commissions on which a verdict had been returned in plaintiff's favor. This motion was accompanied by a statement that defendant did not thereby intend to waive its right to judgment in its favor on other issues joined. On January 9th plaintiff filed a motion for new trial upon the first and second counts of the petition. The motions for new trial were both overruled. Defendant's motion for judgment in its favor for costs on each of the first two counts was sustained, and judgment in each instance was accordingly entered. At the same time defendant's further motion for judgment in its favor for the amount of its counterclaim, which the jury allowed and deducted from the sum found due the plaintiff for commissions, was overruled. Thereupon judgment was entered for the plaintiff on the general verdict for $15,357.86, and for one-half the taxable costs. From that judgment defendant appealed to this court, where a reversal was ordered and cause remanded to the district court for new trial. Seevers v. Coal Co., 158 Iowa, 574, 138 N. W. 793. The cause having been remanded to the district court the defendant filed a motion or series of motions, which, omitting the formal parts, we here set out in full:
“The defendant moves the court to render judgment in its favor against the plaintiff, for $686.29 upon the verdict of the jury rendered in its favor in this cause, on or about December 23, 1910, on its counterclaim for rent, plus the sum of $205.85, upon a verdict in this cause in its favor of the same date, upon its second counterclaim for interest, and in the aggregate sum of $892.14, with 6 per cent. interest thereon from and after December 23, 1914.”
“The defendant further moves the court to expunge and eliminate from the judgment entry heretofore rendered in this cause in this court, of date on or about February 11, 1911, and now of record in this court and cause, so much thereof only as pertains to, and awarded the plaintiff judgment against this defendant upon, the claim made in the third count of his petition and amendments thereto, for alleged salary and compensation for work, in the sum of $15,357.86, and the proportion of costs awarded in said general verdict and third count, and to set aside and cancel the general verdict rendered in the plaintiff's favor in this cause, against the defendant, on or about December 23, 1910, for $15,357.86, and the special verdict rendered in plaintiff's favor, in this cause, against the defendant, on or about the last date aforesaid, upon a claim of plaintiff for commissions made in the third count of his petition for $16,250.”
“The defendant further moves the court to cancel and expunge from the judgment entry made of record in this court and case, on or about February 11, 1911, that portion thereof which, instead of awarding judgment in defendant's favor against the plaintiff, for the amount of $686.29 on the first count of defendant's counterclaim, and of $205.85 on the second count of defendant's counterclaim, subtracted said two amounts in said special verdicts from the special verdict aforesaid rendered in plaintiff's favor for $16,250, on the third count of his petition, and thus dispose of the same because the record, verdicts, opinions, and procedendo and affidavits aforesaid now make it appear that defendant is now entitled to judgment in its favor against the plaintiff, for said two sums, with costs pertaining thereto, and because by the opinion and judgment of the Supreme Court, the plaintiff is not now entitled to judgment on either said special verdicts, or general verdict in his favor.”
“The defendant further moves the court to strike from the pleadings in this cause, as part of the issues thereof remaining, all that portion of plaintiff's petition and amendments thereto, pertaining to the first and second counts of his petition, because the said counts have been fully disposed of and adjudicated against the plaintiff, and are no longer pertinent to the case, and the issues made thereby should not now be submitted to the jury.”
This motion was sustained by the court in an order or judgment duly entered in terms as follows:
“And now on the 10th day of April, 1913, in open court, the parties appearing by counsel, the court, being fully advised in the premises, sustains Division I and Division III of said motion, for judgment upon the verdicts heretofore rendered in defendant's favor on its counterclaim for rent and on its counterclaim for interest, as therein prayed.
Wherefore it is ordered and adjudged that the defendant have and recover from the plaintiff the sum of said two verdicts, upon its said counterclaims, with 6 per cent. interest thereon, from and after December 23, 1910 (the date of said verdicts), amounting now to the sum of $1,014.75, and that execution issue therefor.
It is further ordered that this judgment on said two verdicts on said counterclaims shall stand as a substitute for the disposition made of said verdicts in the judgment entry rendered in this cause on or about February 11, 1911, and that said judgment entry of February 11, 1911, be so modified in respect thereto, to all of which the plaintiff at the time duly excepted.
The court does hereby further order and adjudge that Division II of said motion be, and the same is hereby, sustained, and the said judgment and entry made in this cause of date February 11, 1911, and now of record in this court, be, and is hereby, so far modified and changed as to set aside the special verdict in plaintiff's favor, on the third count of his petition for commissions in the sum of $16,250, and the general verdict in plaintiff's favor of $15,357.86, and the judgment entered thereon. This modification of said judgment to be without prejudice to the plaintiff in respect to said third count of his petition, and of his right to have a trial in respect to said third count of his petition for commissions, to all of which the plaintiff at the time duly excepted.
And the court does further order and adjudge that Division IV of said motion be, and is hereby, sustained, and all the pleadings and issues relating to the first and second counts of the plaintiff's petition which have heretofore been fully adjudicated be, and are hereby,...
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