Van Wagenen v. Parsons

• Decision Date: 10 October 1898
• Parties: VAN WAGENEN v. PARSONS.
• Court: Iowa Supreme Court

106 Iowa 263

76 N.W. 675

VAN WAGENEN

v.PARSONS.

Supreme Court of Iowa.

Oct. 10, 1898.

Appeal from district court, Lyon county; F. R. Gaynor, Judge.

The parties to this suit are attorneys at law, and were, prior to May 29, 1895, partners in the practice of their profession. This action is on a promissory note made by defendant to plaintiff March 30, 1896, for $635, due June 30th thereafter. The execution of the note is admitted, and as a defense it is made to appear in the answer that at the settlement of the partnership affairs defendant paid to plaintiff the sum of $2,300, and plaintiff retired, leaving defendant successor to all the rights of the firm, including its business and accounts. The answer shows that plaintiff had previously collected accounts due the firm without making the proper credits therefor on the books of the firm; that he had made collections for different parties, and had not remitted the amounts, so that the firm was liable therefor; and that the defendant had been compelled to pay the same; and that plaintiff had placed on the books of the firm excessive charges for the purpose of swelling the accounts due the firm, with a view to defraud the defendant. The answer shows the aggregate of such items to be $747, and a judgment is asked for the excess over the amount of the note. A reply makes denials, and, with other facts, shows that after the settlement of partnership affairs the plaintiff brought a suit against defendant charging fraud in the settlement, and that “defendant in defense in that suit raised an issue in the testimony of the counterclaim in his answer here on file; and in the settlement of the original suit between these parties these items of counterclaim in this suit were all known to defendant, and taken into consideration, before and at the time of giving the note in suit.” The reply further presents an additional claim for $3,000 because of accounts alleged to have been collected by defendant before the settlement, and not charged to him on the books of the firm. The case was given to a referee, who filed a report allowing a part of defendant's counterclaim, and finding a balance in favor of plaintiff for $292.40. On the coming in of the report the plaintiff filed four exceptions thereto, and then filed a motion to set the report aside, which the court sustained, and from such order the defendant appealed. Affirmed.J. M. Parsons, pro se.

Geo. H. Stillman and J. A. Van Wagenen, for appellee.

GRANGER, J.

We should not lose sight of the fact that this appeal is from an order in effect granting a new trial. The court did, in terms, set aside the report of the referee, and grant a new trial. The law authorizes a new trial after a report of a...