Sisson v. Janssen, 48202

• Decision Date: 16 December 1952
• Docket Number: No. 48202,48202
• Citation: 56 N.W.2d 30,244 Iowa 123
• Parties: SISSON v. JANSSEN.
• Court: Iowa Supreme Court

Page 30

56 N.W.2d 30

244 Iowa 123

SISSON v. JANSSEN.

No. 48202.

Supreme Court of Iowa.

Dec. 16, 1952.

Sweet & Sager, of Waverly, and Beecher & Beecher, of Waterloo, for appellant.

C. M. Parker, of Cedar Falls, and Pike, Sias, Butler & Hoxie, of Waterloo, for appellee.

SMITH, Justice.

Prior to September 12, 1948, plaintiff, of Ewing, Nebraska, owned a string of eleven race horses. He was racing them at the Playfair Race Association grounds, in Spokane, Washington. One of them, 'Our Sponsor,' had won a race and been disqualified by the judges when it was found (after a hearing) that the horse had been 'blocked' or 'needled,' meaning, in race track parlance, injected with 'dope' to stimulate it artificially. The judges issued and caused to be posted an order that plaintiff be, as he testifies, 'ruled off, suspended for the balance of the meet, until the 11th of October, I believe it was.'

We have no copy of the order nor of the law or rules and regulations under which it was issued. Plaintiff quotes the officials: 'The judges said I could take the horses home or to Phoenix or race them any time after the 11th. * * * Mr. Macombre and Mr. Saunders said, I don't recall which, that I could transfer the horses and put them into another man's name, if it is acceptable to the judges.'

One witness for plaintiff ('a good friend of mine and a good smart man'), a fellow race horse owner with eight horses entered in the same meet, testified (based on conversations with association officials and his own general knowledge) that it merely meant if plaintiff 'wanted to run his horses he would have to transfer them into somebody else's name and get permission from the stewards to do this.' He adds 'I told him (plaintiff) the transfer would have to be made in the office in front of the stewards. * * * there would have to be a transfer made with the state racing association and we talked about the officials demanding to see the transfer of the money.'

Plaintiff claims it was pursuant to this concept of racing ethics that he and defendant, a resident of Cedar Falls, Iowa, executed this instrument:

'Contract between Mr. C. L. Sisson and Mr. C. Janssen, September 12, 1948.

'Mr. C. Janssen is buying the following eleven (11) horses from Mr. C. L. Sisson:

'(Then follow names, description and pedigrees.)

'Mr. Jansen agrees to pay to Mr. Sisson $8000 as the total price to be paid as follows: $4000 in cash, the balance out of one-half of the total purse money won by these horses until such time as the balance is paid. If any horse is claimed Mr. Sisson will get the total amount and it will be deducted from the balance.

'This contract will hold good at any race track that Mr. Janssen enters these horses.

'Witnessed by Russell K. Sanders, Assistant Racing Secretary at Playfair, Spokane.

'/s/ C. L. Sisson /s/ Chris Janssen /s/ Russell K. Sanders.'

Plaintiff in reply admits the instrument was signed as above set out but denies it 'ever was a written contract' and alleges it was signed 'for the sole and only purpose of permitting the said horses to be raced in the name of defendant and for no other purpose.'

Defendant, on the other hand, insists the transaction was a bona fide sale, that he paid the $4000 down and that plaintiff has since received half of a $2000 purse. Defendant tenders and has paid into court the alleged remaining $3,000 of purchase price and appeals from the trial court's decision in plaintiff's favor.

I. That the property was delivered to defendant and that he brought it to Iowa is of course a verity since this proceeding was originally a replevin action to regain possession.

The signing of the memorandum and the delivery of possession are about the only unquestioned facts related to the transaction--they and the admitted fact that Our Sponsor was 'blocked' and plaintiff disqualified.

While perhaps immaterial here there is interesting disagreement as to who did the blocking of 'Our Sponsor,' one witness for plaintiff claiming he practically saw defendant in the act: 'Mr. Janssen was down by the horse's front legs. I saw him get off the ground and hand Mrs. Janssen a hypodermic needle. She put it in her billfold or pocketbook.' On the other hand, a defense witness (defendant's young son who worked for plaintiff) testifies: 'Mr. Sisson was in the stall with Our Sponsor and Jack Cornstalk. Jack told me to stand in front of the door to the stall to see if anybody was coming around. He got down on his hands and knees and put the needle into the horse's leg. The material injected was procaine in a glass vial.'

The same total disagreement appears as to the negotiations leading to execution of the contract and the payment or nonpayment of purchase price. Plaintiff and his witnesses have defendant soliciting plaintiff: 'Why don't you put them in my name and run them?' And 'That will be all right--I'm honest.' While defendant testifies: 'The first I knew Mr. Sisson had horses for sale he came to my trailer house and wanted to sell me some horses.'

Defendant says: 'I had about $6,000 in cash with me at Spokane. That money came from the sale of some corn, three cattle sales and the sale of 250 acres against which there was a $2,200 mortgage.' His wife corroborates this testimony. He also says they were on their way to Seattle to buy horses and had stopped off at Spokane to see their son.

Plaintiff, however, testifies he told defendant 'You will have to have some dollars show up in there * * * in order to show that they was transferred' and 'Janssen said that will be all right but he didn't have any money to show anything. I said if it takes money I will put it up, I will furnish it all.'

Plaintiff testifies that defendant in August had written him in Lincoln asking for a job: 'I called him on the telephone and offered him five dollars a day. He said he couldn't go to Lincoln but would go direct to Spokane * * * and go to work as soon as the horses got up there. * * * The horses and Mr. Janssen were at Spokane when my wife and I got there. * * * I was paying him five dollars a day and five dollars extra every time a horse won.'

Defendant tells a quite different story: 'Mr. Sisson called me on the telephone the latter part of August and asked me to work for him and I told him that I could not but I would send my boy.' He testifies positively: 'I have never worked for Mr. Sisson and I never received any wages from him at the Spokane track or at any other time.'

II. Someone is 'mistaken.' Fortunately for our own peace of mind we need not determine which one. We express no opinion on the comparative weight of the conflicting testimony as to the real intention and purpose of the parties.

Plaintiff naively argues the case is 'as perfect an example as could be desired of all the witnesses on one side falsifying their testimony, and all the witnesses on the other side telling the truth' and that the Court's first duty is to decide 'which story is true.'

We cannot agree. Our first duty we think is to examine the nature of the demand and to determine its relation to the racing rules and regulations and the order of suspension that had been entered against plaintiff. After all we are in equity and the contract is clear on its face.

Plaintiff's theory is perhaps best revealed by one of his own witnesses: 'In connection with verbal agreements when people are ruled off the track it is the custom and usage to do that sort of thing. Racing officials know about it but they don't say nothing about it.' Plaintiff himself quotes one official as warning him 'Pick out a good honorable man you can depend on;' and again: 'Be sure and have a good honest man.'

While the evidence does not clearly advise us as to the racing rules and regulations and the order of the officials suspending plaintiff from the use of the racing facilities we must conclude something more was intended than to impose on plaintiff a mere colorable or fictitious penalty--something more than a mere requirement that he allow the horses to be raced in the name of someone else while himself retaining actual and even beneficial ownership of them. Even the quotation of what the officials said need not be construed as plaintiff assumes. The transfer 'into another man's name' might mean a good faith sale.

Plaintiff testifies: 'I am sure the state has a hand in the regulation of the race tracks in the state of Washington. The state provides judges for the tracks.' His star witness who professed to know the rules says the posted rules are 'put out by the state. The state supervises all race tracks.' But whether the rules and regulations involved were of statutory or of merely local association origin we cannot hold them so meaningless as is contended by plaintiff.

The conduct of the parties, under plaintiff's own showing, was suggestive of an attempt to circumvent rather than comply with rules. If a bona fide sale was not required the parties certainly went to unusual and unnecessary pains, under plaintiff's evidence, to make it appear bona fide. The written contract itself evidences a good faith, above-board, transaction. Whoever drew it--probably Mr. Sanders, the Assistant Racing Secretary who also witnessed its execution--must at least have intended it to appear as a valid sale.

If it was 'phony' whom were they trying to fool? And if a sale was not necessary to comply with the rules and to circumvent the disqualifying order, why draw a sale contract at all?

Again, consider the testimony of plaintiff and his 'good friend' as to making a show of actual payment of consideration. We have already referred to it. Plaintiff testifies it was the subject of much thought and conversation: He says he told defendant that the steward said 'You will have to have some dollars to show in there in order to show that they were transferred'; also 'I told him (defendant) there would have to be a payment * * * for approximately $4000 and if they demand that I will wire your bank...