Smith v. Smith

• Decision Date: 17 March 1913
• Citation: 160 Iowa 111,140 N.W. 659
• Parties: SMITH v. SMITH.
• Court: Iowa Supreme Court

160 Iowa 111

140 N.W. 659

SMITH

v.SMITH.

Supreme Court of Iowa.

March 17, 1913.

Appeal from District Court, Wright County; R. M. Wright, Judge.

This action was brought for an accounting for a settlement of partnership affairs and to dissolve a partnership. There was a trial on plaintiff's petition and on the defendant's answer and cross-bill, and a decree. Plaintiff filed a motion for a new trial, which was sustained by the court, and the defendant appeals. Affirmed.Wesley Martin, of Webster City, and McGrath & Archerd, of Eagle Grove, for appellant.

Sylvester Flynn, of Eagle Grove, and Nagle & Nagle, of Clarion, for appellee.

PRESTON, J.

Plaintiff, in his petition, alleges that in 1881 he and the defendant made a verbal agreement, whereby they became partners in the purchase and sale of cattle, hogs, and other live stock; that the business was conducted under the name of Smith Bros.; that later they operated a grain elevator together, and purchased stock in a bank, of which plaintiff was elected cashier, and that plaintiff's salary as such for 13 1/2 years was placed in Smith Bros.' account; that plaintiff received rent from certain of his land, which was placed in Smith Bros.' account, but he alleges that defendant had no interest therein; that plaintiff and defendant jointly purchased certain land, which was sold at a profit; that the proceeds were placed in Smith Bros.' account; that plaintiff purchased certain lands in South Dakota and sold them at a profit, but alleges that all of said land, and all the profits, were his individual property. Plaintiff alleges that his individual receipts up to 1908 were more than $36,000, all of which went into the Smith Bros.' account, and that defendant also put into said account his individual receipts and his share of the receipts from the business in which he and plaintiff were jointly interested; that he checked out on said account from time to time money with which to purchase his individual land; that each took title to all the land he purchased in his own name; that other transactions took place between them, and plaintiff alleges that he is the absolute and unqualified owner of certain lands so purchased. Plaintiff demanded an accounting and a decree determining and defining the rights of the parties.

Defendant files an answer and cross-bill admitting the formation of a partnership; alleges that the elevator was partnership property and a partnership business; admits certain other allegations of plaintiff, and by way of cross-bill says that plaintiff and defendant became partners, that the partnership was formed for the purpose of engaging in the purchase and sale of cattle, hogs, and other live stock, and for the transaction of other business, and that the partnership has never been dissolved; says that plaintiff has invested large sums of money belonging to the firm in lands which he now holds in his own name, but for the benefit of the firm, and that defendant has done the same; and he asks for an accounting, that the indebtedness of the firm be ascertained and made a charge upon the property, that a dissolution be decreed, and for other relief.

The case was tried in equity, and a decree entered by the court on August 19, 1911, finding that certain of the real estate standing in the name of the defendant was the individual property of said W. C. Smith; that other lands standing in the name of plaintiff and defendant were partnership lands. The court found the indebtedness of the firm to be about $50,000, which was made a charge upon the partnership property; that there was $3,432.73 due defendant; ordering a sale of the partnership property, if the plaintiff and defendant could not agree as to the division and payment of the debts; and decreed a dissolution. There were other findings in the decree, which need not be set out.

On the same day the decree was entered, plaintiff filed a motion for new trial, setting up 17 different grounds, some of which are that the findings and decision of the court are contrary to both the law and the evidence; that the court erred in finding that any partnership relation existed between plaintiff and defendant in respect to the land held by each in his own name; that the court erred in finding that defendant or Smith Bros. had any interest in the 360-acre farm owned by plaintiff located in Wright county; and that the court erred in numerous other findings in the decree. The motion continues:

“(16) That the plaintiff has discovered since the trial in this court that defendant has $5,000 deposited in the State Bank of Cooperstown, in North Dakota, which was taken from the funds held by the court to be partnership money. The defendant should be required to account in this proceeding for this money.

(17) That since the trial in this court the plaintiff has found that the defendant has repeatedly admitted that the 360-acre farm of this plaintiff in Wright county, Iowa, is the plaintiff's individual property.

In support of the sixteenth and seventeenth grounds of this motion, the plaintiff will introduce the testimony of witnesses.”

On October 27, 1911, plaintiff filed an amendment to his motion for new trial, leave of court having been first obtained, stating that he had discovered new evidence since the trial of the cause, consisting of statements, representations, and admissions made by defendant to certain persons, whose affidavits were attached, and that the substance of such statements and admissions is that plaintiff is the absolute owner of each of the several tracts of land, the title to which stands in his name, and that neither W. C. Smith nor Smith Bros. ever had any interest therein. Plaintiff's affidavit in support of the motion, among other things, states that four of the witnesses whose affidavits are annexed were at the time of the trial, and are now, nonresidents of Iowa; that all the matters set forth in said affidavits and the evidence that said witnesses would give was discovered by him after the trial, and that he could not, with reasonable diligence, have discovered and produced the same at the trial; that the witnesses who reside in Iowa did not communicate the admissions contained in their affidavits to any one until after the trial; that he did not know, and had no reason to suspect or believe, that defendant had made such statements or admissions until after he had learned thereof from conversations had with said witnesses; that the signature, “J. R. Smith, by W. C. Smith, Agent,” affixed to a lease was in the handwriting of the defendant. This lease was for certainproperty in North Dakota, and which plaintiff claimed was his own property, and which the court found to be partnership property. The plaintiff further says in his affidavit that, while acting as his agent, the defendant signed a number of other leases in the same manner in renting plaintiff's North Dakota land for him. One of the parties whose affidavit was attached to the motion was a brother, living in New York, and two of such witnesses lived in North Dakota.

The ruling on the motion for a new trial was general, and in the following words: “Motion for new trial sustained, and defendant excepts.”

[1] 1. As already stated, the ruling on the motion for a new trial was general, and we do not know upon what ground the court sustained it, whether on the...