Simons v. Petersberger

• Decision Date: 10 March 1915
• Docket Number: No. 29756.,29756.
• Citation: 151 N.W. 392,171 Iowa 564
• Parties: SIMONS v. PETERSBERGER ET AL.
• Court: Iowa Supreme Court

171 Iowa 564

151 N.W. 392

SIMONS

v.PETERSBERGER ET AL.

No. 29756.

Supreme Court of Iowa.

March 10, 1915.

Appeal from District Court, Scott County; Wm. Theophilus, Judge.

The opinion sufficiently states the case. Reversed.Sharon & Higgins, of Davenport, for appellant.

Lane & Waterman and Isaac Petersberger, all of Davenport, for appellees.

WEAVER, J.

Though the Jewelers' Board of Trade is named as a defendant in the petition, and counsel for plaintiff appears to argue the case on the theory that the party so named is in court, the record seems to show no service upon it, and no appearance in its behalf, and we shall consider the case only as it relates to the issues between the plaintiff and the other two named defendants.

The plaintiff is a retail jeweler in the city of Davenport. The petition in the case is somewhat obscurely stated, but the theory of the case presented by plaintiff seems to be that the defendant Petersberger, an attorney at law in Davenport, falsely and maliciously reported to the Jewelers' Board of Trade that plaintiff was in financial straits, and that this false and misleading statement was by the Board of Trade sent out to the wholesale dealers in that line of business, thereby injuriously affecting plaintiff's credit and standing as a business man, and that, in the further pursuance of said wrongful purpose to injure plaintiff and to obtain his outstanding bills for collection, Petersberger and the Credit Adjustment Company, a corporation organized and controlled by him, falsely led plaintiff to believe that they held or controlled practically all his outstanding indebtedness, and by threatening to force him into bankruptcy induced him to execute an instrument surrendering all his property to the Credit Adjustment Company, and to further pay to said company the sum of $30 in money. It is further alleged that, it being discovered that the said defendants did not have or control the claims of plaintiff's creditors against him, they did not take possession of the property, or assert any right therein, but did not and have not yet returned to plaintiff the said sum of $30 received from him. Upon the grounds thus stated judgment against defendants for damages is demanded. The Credit Adjustment Company made answer to the petition, denying its allegations and pleading payment of the item of $30. Petersberger answering for himself, admitted his relation as attorney for the Jewelers' Board of Trade, but denied all other allegations of the petition. Trial was had to a jury, and at the close of the testimony the court sustained a motion of the defendants for a directed verdict in their favor. To reverse the judgment entered on such verdict this appeal has been taken.

[1] I. The alleged misrepresentations injuriously affecting plaintiff's credit and business originated, as he claims, in letters writtenby Petersberger to the Jewelers' Board of Trade, an organization having for its object the protection of the interests of wholesale dealers in that line of business. These letters and their contents were, of course, vital to plaintiff's case against Petersberger and the Credit Adjustment Company. To meet that necessity plaintiff filed a petition for the production of said letters, alleging they were in the possession or in the control of Petersberger. To this application Petersberger filed numerous objections, but did not deny his possession and control of the letters. The objections were overruled, and Petersberger was ordered to produce the letters or copies thereof. Responding to this order, he produced and there was filed with the clerk three letters purporting to have been written by himself to the Jewelers' Board of Trade at Chicago, Ill., and at the city of New York, concerning plaintiff's financial condition. The record does not disclose that these documents were offered or designated as copies, but they seem thereafter to be spoken of as such. Before the trial came on plaintiff served notice on Petersberger to produce the originals, but he did not comply with the demand. Plaintiff also took the deposition in New York of one Stone, the secretary of the Jewelers' Board of Trade, for the purpose of securing the production of the letters. The answers of the witness to the interrogatories were of an exceedingly evasive and shifty character, and concluded with a refusal to or failure to present or account for the correspondence. Thereafter plaintiff moved the trial court for a continuance to procure the desired evidence, but the motion was denied. Later the motion was renewed and again denied. On the trial plaintiff offered in evidence the letters or copies which Petersberger had produced in obedience to the order of the court, but they were ruled out, upon defendant's objection, as not being the best evidence and as being a privileged communication from an attorney to his client. Plaintiff then called Mr. Petersberger to the stand, and asked him to produce the original letters of which he had produced copies upon order of the court, and he denied having them then in his possession or under his control. Interrogatories calling for identification and verification of the copies met with like objection and like ruling. The net result of...