State v. Fox
| Decision Date | 13 May 1924 |
| Docket Number | 35640 |
| Citation | 198 N.W. 777,197 Iowa 1259 |
| Parties | STATE OF IOWA, Appellee, v. W. H. FOX, Appellant |
| Court | Iowa Supreme Court |
Appeal from Cedar District Court.--JOHN T. MOFFIT, Judge.
THE defendant was convicted of the crime of embezzlement, and appeals.
Reversed.
Henry Negus and G. C. Hoover, for appellant.
Ben J Gibson, Attorney-general, Maxwell O'Brien, Assistant Attorney-general, and Arthur Lund, County Attorney, for appellee.
In March, 1921, appellant traded a farm in Van Buren County for a store in Cedar County. The former owner of the store had on hand some spreaders, which belonged to the Litchfield Manufacturing Company, of Waterloo. Shortly thereafter, a representative of the manufacturing company had an interview with appellant in regard to turning over the spreaders to appellant. As a result of the negotiations, a written contract was entered into between appellant and the Litchfield Company. The contract recites that certain spreaders were to be delivered to appellant, and contains the following recitals:
Under this contract, nine spreaders were turned over to appellant, and appellant executed and delivered to the Litchfield Company his negotiable promissory note, due August 1, 1922, for $ 1,155, as provided in the contract.
When the spreaders were turned over to appellant, the Litchfield Company charged him with the sum of $ 1,155. When appellant's note was received, this account was balanced, and the company indorsed the note to its bank and received credit therefor at the bank.
Appellant sold seven of the spreaders, and made no remittance therefor. This was before the note became due. In the fore part of May, 1922, a representative of the Litchfield Company called on appellant for a settlement. Negotiations were carried on for a few days, but no settlement was effected for the spreaders that had been sold.
The State contends that, at the time of these negotiations, it was agreed that the two spreaders then on hand were to be surrendered to the Litchfield Company by appellant. Shortly after this, however, the appellant sold the two spreaders and reported the sales to the Litchfield Company, and the latter advised appellant that it was forwarding guaranty bonds to the purchasers for said two spreaders.
Appellant removed to Wisconsin, and subsequently the indictment in this case was found, charging appellant with embezzlement of the nine spreaders. The court withdrew from the consideration of the jury all question as to the seven spreaders sold by appellant prior to the transaction in May, 1922, when it is claimed the two spreaders were to be turned over to the Litchfield Company, and the cause was submitted to the jury on the question of embezzlement of said two spreaders.
The appellant, at the proper time, moved for a directed verdict. He challenges the sufficiency of the evidence to sustain the conviction.
It was evidently the view of the trial court that there was evidence that the contract was terminated on May 6, 1922, and that thereafter, appellant had no right to sell the two spreaders, under the contract.
Just what the arrangement was between the parties at the time is not exactly clear from the record. Representatives of the manufacturing company attempted to make a settlement with appellant for the spreaders that had been sold. It is contended that appellant's right to sell the two spreaders on hand was terminated, but that, under the contract, the duty still rested upon appellant to return the spreaders to the manufacturing company.
It appears that a replevin suit was threatened by the representatives of the company. It is claimed that the company, by its representatives, elected to take possession of the spreaders and divest the appellant of his right to sell the same under the contract. The contract provides:
"In case the first party shall repossess any goods under this contract, or authorize the return of any goods, the second party agrees to pay freight or other charges and any depreciation in the value of the goods on account of exposure, handling, or from any other cause whatsoever, the amount of such depreciation to be determined by the first party."
This, however, did not obligate appellant to return the property, but only to pay the freight and damages in the event of a return.
If the contract was in force in its entirety after May 6, 1922, then appellant had the right thereunder to sell the spreaders. If it was not in force after that date, then appellant was not the agent of the manufacturing company thereunder. If he was not the agent of the manufacturing company after May 6, 1922, then he could not be liable for the crime charged in this indictment. Whether or not he might be guilty of some other offense, or in some other relationship, is a matter with which we are not concerned here. He is charged solely as the agent of the Litchfield Company.
Appellant insists that the contract was in full force and effect after May 6, 1922, and that it could not be modified by any settlement or agreement with any representative of the manufacturing company until this was submitted to and approved by the company. The contract provides:
"No settlement, adjustment or agreement of any kind, made by any agent or person, claiming to represent the first party, shall be valid until submitted to and approved by said first party at its office in Waterloo, Iowa."
The settlement claimed to have been made on May 6, 1922, was not shown to have ever been approved by the manufacturing company. In fact, it appears affirmatively and without dispute that, after the alleged settlement of May 6th, the company knew of the sale of the two spreaders by appellant and ratified...
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