Waterman v. Bryson

• Decision Date: 29 June 1916
• Docket Number: 30754
• Citation: 158 N.W. 466,178 Iowa 35
• Parties: HARRY S. WATERMAN, Appellee, v. W. J. BRYSON, Appellant
• Court: Iowa Supreme Court

158 N.W. 466

178 Iowa 35

HARRY S. WATERMAN, Appellee, v. W. J. BRYSON, Appellant

No. 30754

Supreme Court of Iowa, Des Moines

June 29, 1916

REHEARING DENIED SATURDAY, SEPTEMBER 30, 1916.

Appeal from Scott District Court.--WILLIAM THEOPHILUS, Judge.

PLAINTIFF alleges, substantially, that he and defendant agreed to enter into a written lease for a theater building; that plaintiff paid defendant $ 298 on the strength of the agreement; that defendant refused to make the lease and plaintiff never obtained possession of the building, and defendant refuses to pay back the money paid. Trial to a jury. Defendant offered no evidence. There was a verdict for plaintiff for $ 298 with interest. Defendant appeals.

Affirmed.

Sharon & Higgins and W. M. Chamberlain, for appellant.

F. A Cooper and Chezem, Maines & Kelly, for appellee.

PRESTON, J. EVANS, C. J., DEEMER and GAYNOR, JJ., concur.

OPINION

PRESTON, J.--

1. There is some confusion in the record, because of many corrections of the abstract by an amended abstract of appellee. We could get a much better understanding of the case if the record were correctly set out in one abstract.

The petition was in three counts, but the matters covered thereby were not all submitted to the jury. The questions presented are very largely of fact, and whether the verdict is supported by the testimony. The plaintiff's claim is that the oral agreement was made about July 24, 1914. This action was begun August 5, 1914, and it is claimed by defendant that, a few days thereafter, a lease was signed by both parties. But disputed points in the case are whether the so-called lease was executed, and whether in accordance with the prior verbal agreement, and whether, if executed, it was delivered. Appellee contends, and the jury could have so found, that there was never any delivery of the lease alleged by appellant to have been executed, and that the parties never at any time regarded it as being a subsisting written contract, and that it was never acted upon, and that no possession was ever given under it, and no possession ever offered under it, and that none of the things which were essential to give it life were ever done.

At the close of plaintiff's evidence, which, as stated, was all the evidence in the case, the defendant moved for an instructed verdict, on the following grounds:

"(1) That the evidence of plaintiff shows that certain negotiations for a contract or lease were commenced on or about the 23d day of July, 1914, and were continued until about the 5th day of August, 1914, when it was agreed that the verbal contract was completed as modified; that this cause of action was begun in this court on the 4th day of August, 1914, and no cause of action had accrued to the plaintiff at that time. (2) The allegations of the petition are that a certain contract was entered into on or about the 24th day of August, 1914, containing certain terms and conditions, and the evidence of the plaintiff fails to show that, at any time, he ever did sign or offer to sign a contract embodying the terms and conditions upon which he predicated his suit. (3) The evidence in this case shows that, if there was any failure on the part of either party to this case to enter into a written contract, it was on the part of the plaintiff himself. (4) That the evidence in this case shows that there was a written contract entered into by and between the parties to this suit and that the defendant was ready and willing to and did sign the contract which embodied the terms and conditions of the contract which plaintiff testified embodied the oral negotiations and contract in this case, and that the only contract, as shown by the evidence, which the defendant refused to sign, was one which the plaintiff had changed, and was not substantially the same contract which both parties had signed.

That there is not sufficient evidence in the case upon which to base a verdict for plaintiff under any theory or count alleged in plaintiff's petition."

After stating the issues as made by the pleadings somewhat in detail, and instructing as to the burden of proof, preponderance of evidence, etc., the court instructed the jury as follows:

"The questions or issues for you to try and determine in this case are these: (1) Did the plaintiff and defendant, on or about July 24, 1914, mutually verbally agree to enter into a written lease for the Family Theater property, as claimed by the plaintiff? (2) If they did so agree, then has the defendant failed and refused to enter into such written lease as per said verbal agreement with the plaintiff? (3) If you should so find that the defendant has failed and refused to enter into such written lease, then was the plaintiff free from any fault on his part to cause such failure and refusal on the part of the defendant? ....