Van Gorden v. Ormsby Bros. & Co.
| Decision Date | 19 April 1881 |
| Citation | 8 N.W. 625,55 Iowa 657 |
| Court | Iowa Supreme Court |
| Parties | VAN GORDEN v. ORMSBY BROTHERS & CO. AND OTHERS. |
OPINION TEXT STARTS HERE
Appeal from Palo Alto circuit court.
The plaintiff filed her petition, in substance alleging that in February, 1880, she entered into a written contract with the defendants Ormsby Brothers & Co. to sell for her the N. E. 1/4 of 4, 97, 33, of which plaintiff was the owner; that said defendants sold said land for plaintiff, and of the proceeds thereof, after deducting their commission, they still hold the sum of $640, and have so held the same since prior to May 1, 1880; and that they refuse to pay the same to the plaintiff. Judgment was asked for $640, with interest from May 1, 1880, and for costs of suit. Attached to the petition is a copy of a contract between the plaintiff, by P. F. Van Gorden, and Ormsby Brothers & Co. for the sale of said premises upon a commission of 5 per cent.
The defendants Ormsby Brothers & Co. answered as follows:
“(1) They admit that they sold for the plaintiff and her husband, one P. F. Van Gorden, the land described in the plaintiff's petition, and that there is now in their hands, of the proceeds of the sale, $640, but they deny each and every other allegation therein contained, and refer to the following divisions of their answer for the reasons why the same has not been paid over to the plaintiff and her said husband.
(2) That at the date of the commencement of this action, and at the time of the filing of the plaintiff's petition and the service of the notice herein on the defendants, the plaintiff and her said husband's deed was still in the defendants' hands as the plaintiff's agents, and had not been delivered to the purchaser, and the purchase money had not been paid to the defendants, and only a portion of said sum of money was in the defendants' hands as bankers, standing to the credit of the purchaser upon the books of the bank, and no part of said sum had then been paid to the defendants, to be delivered to the plaintiff and her said husband.
(3) That on the ______ day of ______, 1880, they were garnished by the sheriff of Palo Alto county, under five executions against P. F. Van Gorden, viz.: three in favor of D. M. Gilmore & Co., one in favor of Woodring Brothers, and one in favor of Hatchingson & Co., aggregating about the sum of $300; that at the time of such garnishment the defendants were also served with a notice that the said money arising from the sale of said land was the property of P. F. Van Gorden, and that said execution plaintiff would hold the defendants for the amounts of their several executions if they allowed the same to pass from their hands; that the defendants had no sufficient knowledge or information to determine whether the plaintiff or her said husband, P. F. Van Gorden, owned said money, and therefore, in order the more fully to protect themselves, then and there offered to pay the plaintiff all of said sum of money in excess of the sums due on said executions, and retain the balance until such time as their answer should be taken in said garnishment proceedings, and then and there bring the same into court, to abide the order and judgment of this court; that the plaintiff refused to accept any portion of said money, and defendants are ready and willing to pay said money to whomsoeverthe court shall order, upon taking of the defendants' answer as garnishees in said suits. Wherefore, defendants ask that they may be ordered to pay said money into court and that they he discharged, with costs.”
The plaintiff demurred to the first division of the answer as follows:
“(1) The petition shows that the land referred to was sold by defendants for plaintiff under a written agreement, which is not denied by said answer, and said answer does not claim the defendants hold said money, or retain the same by virtue of said contract, or any of the provisions thereof.
(2) Said first division of the answer admits that defendants have the money claimed by plaintiff's petition, and does not state any reason for not paying the same over to plaintiff.
(3) Said land was sold by defendants under a written contract with plaintiff, as set out in plaintiff's pleading, and defendants cannot now assert or allege ownership of the proceeds of said sales to be in any other person than plaintiff, and defendants cannot allege or rely upon ownership of the proceeds of said sale being in any other person than plaintiff.
(4) Said answer admits that said defendants have in their possession the money claimed by plaintiff, and that they are indebted to plaintiff therefor; and defendants cannot now assert that ownership of said money, or any part thereof, or any interest therein, is in any other person than plaintiff, nor deny the ownership under which defendants received said money, nor hold the same against the demand of the plaintiff.”
The plaintiff also demurred to the second and third divisions of the answer upon the same grounds. The court sustained the demurrer as to the third and fourth subdivisions of the first ground thereof, and overruled all the rest of said demurrer. To the overruling of the demurrer the plaintiff excepted, and to the sustaining thereof the defendants excepted. D. M. Gilmore & Co. filed their petition of intervention asking that P. F. Van Gorden, the husband of plaintiff, be made a party thereto, and stated the facts constituting their claim, as follows:
“ Paragraph 1. That on the fourth day of January, 1878, the said D. M. Gilmore & Co. recovered their judgment against the said P. F. Van Gorden on three promissory notes in justice court, and transcript duly filed in this court, aggregating the sum of $87.88 debt, and $6.90 costs, no part of which has been paid, and there is still due the plaintiffs said sum and interest thereon from said fourth day of January, 1878.
Par. 2. That the consideration for which said promissory notes were given, were goods, wares, and merchadise, sold and delivered the said P. F. Van Gorden in September, 1876, upon the representations of the said Van Gorden that he was the owner of the said N. E. 1/4 of section 4, township 97, range 33 west, and the apparent owner thereof of record, and the reports of the mercantile agencies in which he was reported as owning said lands; and during the years 1876 and 1877 the said B. F. Van Gorden claimed to own said land, and promised and agreed to pay the intervenors as soon as he should be able to sell said land.
Par. 3. That on or about the twenty-eighth of February, 1879, the said P. F. Van Gorden and his wife, the said plaintiff, contriving how they might cheat and defraud said plaintiffs, and for the purpose and with the intent to hinder, delay, and defeat the plaintiffs in the collection of these said judgments, corruptly and fraudulently agreed that the said P. F. Van Gorden should deed to the said plaintiff the N. E. 1/4 4, 97, 33, and date the same back previous to the time when the debts of these intervenors were contracted, and that in accordance therewith the same was executed as purporting to have been executed on the twenty-eighth day of February, 1874, instead of the twenty-eighth day of February, 1879, when the same was in fact executed.
Par. 4. That in truth and in fact the said P. F. Van Gorden acquired title to said lands under the provisions of chapter 5, title 32, U. S. Rev. St., commonly called the homestead law; that on the fourth day of January, 1876, the said P. F. Van Gorden made his final...
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