Taylor v. Grimes Canning Corp.
Decision Date | 20 November 1934 |
Docket Number | 42550 |
Citation | 257 N.W. 353,218 Iowa 1281 |
Parties | J. L. TAYLOR, Appellee, v. GRIMES CANNING CORPORATION et al., Appellants |
Court | Iowa Supreme Court |
Appeal from Polk District Court.--O. S. FRANKLIN, Judge.
Plaintiff commenced an action of replevin for the possession of certain articles of personal property purchased at public auction by the plaintiff at the sale of defendant Grimes Canning Corporation. At the close of the sale plaintiff tendered in payment to defendant past-due note, and defendant refused to deliver to plaintiff the property knocked down to plaintiff. Plaintiff filed motion to strike and for judgment nil dicit which was overruled; and then filed a motion for judgment on the pleadings, which was sustained. Defendants appeal from the ruling sustaining the motion for judgment. Opinion states the facts.
Reversed.
Carr Cox, Evans & Riley, for appellants.
Tolbert C. Moore. for appellee.
On December 20, 1932, the Grimes Canning Corporation held a public auction sale at Grimes, Iowa. At said time, and place it offered for sale a two-row cultivator, four cows, and one colt. The terms of said sale were cash on delivery of the property. At the said auction sale the appellee, J. L. Taylor, bid the amount of $ 286, which bid was duly accepted by the auctioneer. At the close of the sale Taylor tendered a past-due, unpaid note, executed by the Grimes Canning Corporation to his wife and duly assigned to appellee, in excess of the amount of articles purchased, and the appellee offered to credit thereon the amount of the purchase price of the articles in question, and demanded possession of the articles. The corporation refused to deliver the articles until it had been paid for them in cash in the amount of the bid, to wit, the sum of $ 286.
On the 22d day of December, 1932, Taylor, plaintiff in the court below and appellee in this court, filed a petition in replevin in the usual form praying judgment against the Grimes Canning Corporation for the possession of the property described in his petition, being the property which he purchased at the auction sale; and that a writ of replevin issue to the sheriff of Polk county, Iowa, ordering and directing said sheriff to take possession of said property and deliver same to Taylor, and for damages in the amount of $ 10 for unlawful detention of said property, and attorney's fees and costs.
On February 7, 1933, the appellants filed answer to the petition, in which they denied that the appellee was the owner of any of the property described in his petition, and alleged that the property belonged to the appellants; that on December 20, 1932, the Grimes Canning Corporation held a public sale in the town of Grimes, Iowa, at which the property described in appellee's petition was offered for sale, and upon an auction thereof the appellee offered to purchase the same and offered to pay therefor the sum of $ 286; that the terms of said sale were cash on delivery of the property; that the appellee had not paid in cash the amount bid and hence acquired no title thereby and is not entitled to possession thereof; and prayed that judgment be entered against the appellee, declaring and confirming the right of the appellant corporation to possession of the property described, and that in lieu of the property, the appellant have judgment against the appellee for the sum of $ 286, plus interest and costs.
A writ of replevin was duly issued. On February 9th the appellee filed an amendment to his petition, in which he set up the fact that he had been declared the purchaser of the property described in his petition, and tendered to an agent and representative of the appellant company one certain promissory note in the sum and value of more than the purchase price of all the articles purchased by him, which promissory note had been made, executed, and delivered by the appellants and had been assigned to the appellee, who was at that time the owner and holder of said note and who then and there indorsed his name on the back of said note upon and at the time of tendering the same to the appellants in payment of the articles declared sold to him by the auctioneer, and that at said time said note was wholly due and unpaid and owing from the appellants to the appellee.
On February 15, 1933, the appellee filed in the lower court a pleading designated "Motion to Strike and Judgment Nil Dicit", which was as follows:
On February 25, 1933, an order was entered in said court and cause by the Honorable F. S. Shankland, judge, as follows:
On February 28, 1933, appellee filed in said court and cause the following:
On March 7, 1933, the appellants filed in said court and cause the following:
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