Smalley v. Greene

• Decision Date: 27 October 1879
• Citation: 52 Iowa 241,3 N.W. 78
• Parties: A. R. SMALLEY, APPELLANT, v. S. H. GREENE, APPELLEE.
• Court: Iowa Supreme Court

52 Iowa 241

3 N.W. 78

A. R. SMALLEY, APPELLANT,

v.S. H. GREENE, APPELLEE.

Supreme Court of Iowa.

Filed October 27, 1879.

Appeal from Dallas circuit court.

The plaintiff filed his amended petition alleging that the defendant was engaged in the practice of law in Adel, Dallas county, and on or about the fifth day of April, 1877, the plaintiff and defendant entered into a verbal agreement by which the defendant agreed to sell his law business to plaintiff, including collections on hand, and correspondence, office furniture, and good will--the defendant, at the same time, as a part of said agreement, agreeing that he would, from and after the fifth day of April, 1877, not continue or engage in the practice of his profession in the town of Adel, in consideration of which agreement the plaintiff agreed to execute and deliver his two promissory notes to the defendant for the sum of $125; that at the time of making this agreement the defendant represented to plaintiff that he had on hand for collection and would turn over to plaintiff promissory notes on divers persons, amounting in the aggregate to $4,500; that on the fifth day of April, 1877, the defendant delivered to plaintiff the office furniture as agreed upon, and the plaintiff, relying upon defendant's representations that he had for collection and would deliver to plaintiff the above mentioned amount of notes, and the further agreement of defendant that he would not again engage in the practice of his profession in the town of Adel, executed and delivered to defendant the promissory notes of plaintiff for one hundred and _________ dollars; that the defendant refuses to turn over and deliver to plaintiff said notes, or any of them, except one for $200, whereby plaintiff has sustained damage in the sum of $400; that about the ____ day of July, 1877, the defendant, in violation of his agreement, entered upon the practice of his profession in the town of Adel, and still continues to so practice, whereby plaintiff has sustained damage in the sum of $600. The plaintiff demands judgment for $1,000. The defendant demurred to this petition upon the following grounds:

First. That the facts stated in said petition do not entitle the plaintiff to the relief demanded, in this, that said petition sets forth a parol contract for the sale of office furniture, good will, and the turning over of collections on hand, with an agreement to not again engage in business, and states that the contract has been complied with, so far as the office furniture is concerned, and seeks to recover only for an alleged breach of that part relating to good will, the turning over of collections, and to not again engage in business in Adel.

Second. The petition affirmatively shows that said contract could not be performed within one year from the date thereof.

Third. No consideration is alleged to have been paid for that part of the contract for the breach of which damages are claimed.

Fourth. The contract, or that part of it for the breach of which damages are claimed, is against public policy. The court sustained this demurrer. The plaintiff failed to further plead, and judgment was rendered against him for costs. The plaintiff appeals.A. R. Smalley and M. C. Baugh, for appellant.

T. R. North, G. W. Clarke and White & Woodin, for appellee.

DAY, J.

1. The judgment of the court does not show upon what ground the demurrer was sustained. We think no damages can be recovered on account of the neglect of the defendant to turn over to the plaintiff the $4,500 of notes which the defendant had in his hands for collection. It is presumed that the defendant's clients...