Stark v. L. Ginsberg & Sons
| Decision Date | 08 May 1945 |
| Docket Number | 46662. |
| Citation | 18 N.W.2d 627,236 Iowa 735 |
| Court | Iowa Supreme Court |
| Parties | STARK v. L. GINSBERG & SONS. |
A J. Myers and Sam Abramson, both of Des Moines, for appellant.
R L. Morgan and C. W. Harvey, both of Des Moines, for appellee.
Plaintiff's petition alleged that on the 19th of November, 1943, she purchased from the defendant a 32 inch sled for the sum of $4.78; that the sled was falsely represented to her, by defendant's salesman, as a Flexible Flyer sled; that said false representations were meant to deceive her and they did deceive her and the sled was not in fact a Flexible Flyer. The petition also alleged that the sled she took home was an Eskimo sled and the maximum ceiling price, under the Emergency Price Control Act, 50 U.S.C.A.Appendix § 901 et seq., for said sled would not be $4.78 but about $1.50. The prayer of the petition was for 'judgment against the defendant in the sum of $50 as provided by the Emergency Price Control Act of the United States and the sum of $500 as actual and exemplary damages incurred by reason of the fraudulent representations made by (the) defendant's representatives and agents, and for attorney's fees and the court costs of this action, all as provided in said Emergency Price Control Act.'
The defendant moved for an order directing plaintiff to separate and divide her petition in that it alleged two causes of action; one being a violation of the Emergency Price Control Act for which plaintiff sought damages and the other based on fraud for which plaintiff sought recovery of both actual and exemplary damages. The motion was granted and in compliance with the court order thereon the plaintiff amended her petition by alleging the violation of the Emergency Price Control Act in Count I and by charging fraud and misrepresentation in Count II. The only prayer in the amendment appears at the end of Count II where the pleading states: 'Wherefore the plaintiff prays as in her original petition.'
The evidence showed that plaintiff purchased a sled at defendant's store on November 19, 1943 for $4.69. She paid $1 in cash and at her request the sled was placed on 'Will Call.' A 'Will Call' item is one that is put away to be called for later by the customer. The next day plaintiff returned to the store and paid the balance of the purchase price plus 9 cents sales tax and a sled was delivered to her. That evening she discovered that the sled that was delivered to her was a reconditioned sled and not the sled she bought the previous day. Plaintiff was quite positive in her testimony that the sled that was delivered to her was not the sled she had purchased and left on 'Will Call.' Approximately a week later she telephoned defendant's store and was told by a saleslady to bring the sled back if she was not satisfied. The maximum OPA price for a 47 inch used Flexible Flyer sled was $4.69. It was stipulated that the maximum OPA price for the sled that was delivered to plaintiff, called a used 26 inch Eskimo sled, was $1.49.
At the close of plaintiff's testimony Count II was dismissed upon defendant's motion. The defendants testimony was to the effect that a 47 inch Flexible Flyer sled was actually sold to the plaintiff of November 19th but a mistake was made in the Will Call department and the wrong sled was delivered to her on November 20th. The trial court in his findings commented on the defendant's good faith but entered judgment for the plaintiff for $50 damages and $50 attorney's fees under the provisions of the Emergency Price Control Act of 1942. Secs. 4(a) and 205(e), 50 U.S.C.A.Appendix, §§ 904(a) and 925(e). The record shows a stipulation that a reasonable attorney fee would be $50.
I. At the outset we are met with the question of jurisdiction. Though there is no motion by appellee to dismiss the appeal, we fail to see how this court has jurisdiction to entertain it since it does not appear that the amount in controversy is less than $300 and the record contains no certificate from the trial court under Rule 333, Rules of Civil Procedure.
Rule 333 provides in part that 'no appeal shall be taken in any case where the amount in controversy, as shown by the pleadings, is less than three hundred dollars, unless the trial judge, within thirty days after the judgment or order is entered, certifies that the cause is one in which appeal should be allowed.'
It is apparent that Count I of plaintiff's amended petition states a claim for violation of the Emergency Price Control Act. While Count II states a claim for damages as a result of fraudulent representations. The two counts are not followed by separate prayers but the pleading refers back to the general prayer of the original petition. That prayer, as stated, sought $50 for violation of the Emergency Price Control Act, $500 as actual and exemplary damages, and attorney's fees as provided in the Emergency Price Control Act. When we fit this general prayer to the petition after it was divided into counts, we see that the plaintiff sought judgment for $50 and attorney's fees under Count I because of...
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