Sievertsen v. Paxton-Eckman Chemical Co.

• Decision Date: 15 December 1911
• Citation: 133 N.W. 744,160 Iowa 662
• Parties: PETER SIEVERTSEN v. PAXTON-ECKMAN CHEMICAL COMPANY, Appellant, and FIRST NATIONAL BANK OF MANNING, IOWA
• Court: Iowa Supreme Court

133 N.W. 744

160 Iowa 662

PETER SIEVERTSEN v. PAXTON-ECKMAN CHEMICAL COMPANY, Appellant, and FIRST NATIONAL BANK OF MANNING, IOWA

Supreme Court of Iowa, Des Moines

December 15, 1911

Appeal from Carroll District Court.--HON. Z. A. CHURCH, Judge.

ACTION of replevin for the possession of a note executed by the plaintiff. Verdict and judgment for plaintiff. The chemical company appeals.

Reversed.

Reynolds & Meyers and Murdock & Pancoast, for appellant.

B. I Salinger, L. H. Salinger and Douglas Rogers, for appellee.

SHERWIN C. J., GAYNOR, J. DEEMER, J., dissenting.

OPINION

SHERWIN, C. J.

The judgment appealed from herein was rendered on the 3d day of May, 1909, but was not entered of record until the 6th day of May, 1910.

The appeal was taken on June 20, 1910, and the appellee contends that this court has no jurisdiction in the matter, because the appeal was not taken within six months after the judgment was rendered. The rule is settled adversely to his contention in Stutsman v. Sharpless, 125 Iowa 335, 101 N.W. 105; Puckett v. Gunther, 137 Iowa 647, 114 N.W. 34. See, also, Martin v. Martin, 125 Iowa 73, 99 N.W. 719.

We come now to the merits of the case. On the 12th day of August, 1908, the plaintiff signed a promissory note of $ 971, payable to the Paxton-Eckman Chemical Company, of South Omaha, Neb., due on the 1st day of February, 1909, and delivered said note to an agent of said company in Carroll county, Iowa. The note was given for stock food, sheep dip, and spray pumps. This note was immediately delivered to the chemical company, and on the 19th day of August, 1908, it wrote a letter to the plaintiff, advising him that it had approved the note and shipped the goods. This letter appears to have reached the plaintiff on the 20th or 21st of August at Dedham, Iowa and on one of these days the goods arrived at the same place. Upon receipt of this letter the plaintiff took it to Mr. Douglas Rogers, who had been his attorney for many years, and explained to Mr. Rogers what he had done, and asked his advice in the matter. On the same day, as the record fairly shows, plaintiff refused to take the goods from the railroad company. On August 21, 1908, Mr. Rogers caused the following letter to be written and sent to the chemical company from Manning, Iowa: "Dear Sirs: Mr. Peter Sievertsen of Dedham, Iowa was in our office today and requests us to write you to ascertain whether or not you would discount the note given by him for stock food on the 12th inst. through your Mr. Sinderson. He tells us that he will take the note up if you will discount it, say five per cent. If you wish to dispose of it in this manner, kindly send the same at once to either of the banks in this town and we will write him of its being here and request him to come in and take it up. Yours truly, Jones & Stephany." In response to this letter, the note was sent to the First National Bank, of Manning, Iowa where it was received on Sunday the 23d day of August. In the afternoon of Monday, August 24th, without having received any notice that the note was there, the plaintiff went to the bank, and asked to see the note. It was shown to him, and he was told the bank's instructions were to accept payment thereof less 5 per cent. discount. Plaintiff said that he did not want to pay the note. A deputy sheriff went into the bank two or three minutes after the plaintiff did, and, upon the bank's refusal to surrender the note without its payment, the writ of replevin herein was served, and the note taken possession of by the officer. On the 24th day of August the plaintiff signed and mailed to the chemical company a letter written in the office of Mr. Rogers, in which said company was notified that the contract between them was rescinded, and in which a demand was made for the return of the plaintiff's note. And on the same day a letter was written to the chemical company by Jones & Stephany, in which it was stated that Mr. Sievertsen had been in that morning, and had told them that he had consulted a lawyer, and had been advised that he did not have to pay the note, and would replevin the same. This letter was written at the instance of Mr. Rogers, the plaintiff's attorney. The letters of August 21st and 24th, written by Jones & Stephany to the chemical company, were excluded from the evidence, as was also the testimony of Rogers relating thereto. It was competent and material for the appellant to show that the plaintiff had reaffirmed the contract made by him with appellant on the 12th of August, and his written agreement in the letter of the 21st to pay the note less 5 per cent. discount was evidence of such reaffirmance with knowledge of all the facts connected with the transaction. Hence it was error to exclude that letter, if there was evidence before the jury from which it might have found that Rogers had authority to write or dictate said letter.

We think there was sufficient evidence of Rogers' authority to submit the question to the jury, and the facts that we have already detailed furnish the basis of this conclusion. Lord, Owen & Co. v. Wood, 120 Iowa 303, 94 N.W. 842; Chamberlain v. Brown, 141 Iowa 540, 120 N.W. 334.

Appellee's contention, that because the appellant alleged in its answer to the original petition that this transaction was only a ruse to gain possession of the note is conclusive against appellant, is not sound, for the reason that such answer was withdrawn by the filing of another and different answer to the substituted petition. Thayer v. Coal Company, 129 Iowa 550, 105 N.W. 1024. And the introduction in evidence of the former answer by the plaintiff would not be conclusive against the defendant. It could only be treated as an admission, which should go to the jury as any other evidence. City Deposit Bank v. Green, 138 Iowa 156, 115 N.W. 893.

II. One of the claims made by the plaintiff was that he was intoxicated when he executed the contracts and the note in question, and the court instructed on this issue as follows: "Plaintiff does not claim that he was so drunk as that he did not know what he was doing, and he may be entitled to your verdict without proving that he was so drunk as not to know what he was doing." In substance, this instruction told the jury that intoxication to any extent might relieve the plaintiff of liability on his contracts and note. There was no explanation of the proposition so stated nor any reference to the claim that defendant's agents had induced the plaintiff to drink with them. The instruction was clearly erroneous. Willcox v. Jackson, 51 Iowa 208, 1 N.W. 513; Kuhlman v. Wieben, 129 Iowa 188, 105 N.W. 445.

III. It is clear that no demand was made for the return of the note before this action was commenced, and the defendant insists that the plaintiff should fail on that account. If the note was obtained from the plaintiff by fraud of such nature as to render it absolutely void in law, we are of the opinion that no demand was necessary under the general rule that where possession of property is wrongfully or unlawfully obtained, or where it is obtained by fraud, no demand before suit is necessary. 34 Cyc. 1406; Jones v. Clark, 37 Iowa 586; Robinson v. Keith, 25 Iowa 321; Delancey v. Holcomb, 26 Iowa 94; Cerf v. Phillips, 75 Cal. 185 (16 P. 778). In Reeder v. Moore, 95 Mich. 594 (55 N.W. 436), goods were obtained through false representations as to the financial ability of the purchaser, and it was held that demand of him before suit was not necessary. Wells on Replevin, section 345. And see Kennedy v. Roberts, 105 Iowa 521, 75 N.W. 363.

Other errors are argued, but they are of minor importance and are not likely to arise on a retrial of the case, so we need not further notice them. We cannot agree with the appellant's contention that it should have had a directed verdict. For the reasons indicated, the judgment is Reversed.

SUPPLEMENTAL OPINION.

THURSDAY, JULY 3, 1913.

GAYNOR J.

This case was before this court at the December term, 1911, and was reversed. Within the time limit of the statute and the rules of this court, and on the petition of appellee, a rehearing was granted, and it is now again before us for determination. We have read and examined with care the whole record as now before us, and are satisfied that if this court, at that time, had jurisdiction to hear and determine the cause, it was then rightly reversed.

The appellee, at the former hearing and now, contends with much learning, ability, and zeal that no jurisdiction rested in this court then, and none rests now, to hear and determine this case, and that this appeal should be dismissed for want of jurisdiction in the court to either reverse or affirm. The plaintiff predicates this claim on the wording of the statute limiting the right to appeal to six months from the rendition of the judgment. This statute provides: "Appeals from the district court may be taken to the Supreme Court at any time within six months from the rendition of the judgment or order appealed from, and not afterwards."

This case was tried to a jury, and a verdict rendered by the jury in favor of the plaintiff. That thereafter, and as the record shows, within the time fixed by the court, defendant filed a motion for a new trial. In appellant's abstract of record appears the following:

That afterwards, to wit, on the 21st day of December, 1909, said motion for a new trial was overruled by the court, and on the 6th day of May, 1910, the said district court filed and entered of record the following judgment: 'Now, to wit on this 3d day of May, 1909, and still during said term, the above-entitled cause comes on for judgment, and the court, being fully advised in the premises, finds that the allegations of the petition of plaintiff are...