West v. Fry

• Decision Date: 06 June 1907
• Citation: 134 Iowa 675,112 N.W. 184
• Parties: WEST v. FRY.
• Court: Iowa Supreme Court

134 Iowa 675

112 N.W. 184

WEST

v.FRY.

Supreme Court of Iowa.

June 6, 1907.

Appeal from District Court, Marion County; James Gamble, Judge.

Action to recover for corn sold and delivered for use of a farm and for damages thereto, and upon an account for hay. Defendant denied generally, and pleaded a counterclaim upon an account of 49 items covering the years 1888 to 1901, which account showed 21 items of credit. Plaintiff, in reply, admitted a partnership relation between the parties for the years 1888 to 1890, claimed additional credits to those shown by defendant, also a full settlement of defendant's account, and the statute of limitations. Upon its own motion, and without objection or exception by either party, the trial court sent the case to Mr. Sam D. Woods, as referee, who proceeded to hear and try the same, and made his report back to the court. Motions to confirm and to set aside were filed, and the district court sustained plaintiff's motion to confirm, except as to one item, and overruled defendant's to set aside. Affirmed.Hays & Amos, for appellant.

L. D. Teter and Geo. W. Crozier, for appellee.

DEEMER, J.

As there was no objection or exception to the reference made by the court, and as both parties appeared and tried the case before the referee, and at no time made any objection to his hearing the matter, appellant is in no position to question the order made. In this respect the case comes to us on error, and without objection to the court's ruling in sending the case to a referee, there is nothing to present. Wies v. Morris Bros., 102 Iowa, 332, 71 N. W. 208. The objection does not go to the jurisdiction of the court or of the referee, for even a law action may be tried to a referee by consent. Moreover, a partnership between the parties was admitted, and an adjustment of the counts thereof was asked.

2. Among other things, the referee found, in substance, the following facts: “That on October 7, 1890, the plaintiff signed defendant's name to a check for $196.20, drawn on defendant's bank account, and received the money therefor. This was for a car of corn which plaintiff had purchased for the defendant. Some days thereafter, the defendant, not knowing of the drawing of the said check, again paid the plaintiff the said amount. It is not charged that there was any fraud on the part of the plaintiff in this matter, or that he willfully concealed the fact that he had drawn this check from the defendant. These parties were brothers-in-law, engaged in business transactions together, and a relation of trust and confidence existed between them, as shown by the fact that plaintiff checked upon the defendant's bank account. This transaction was merely a mistake between the parties; the defendant supposing he was paying a debt due the plaintiff, and the plaintiff, through inadvertence and mistake, neglected to apprise the plaintiff, or had forgotten that he had received payment for this corn.” The referee allowed defendantthis item, but the trial court disallowed it, and rendered judgment for plaintiff in the sum of $363.68. Defendant makes the following contention with reference to the item in dispute: “Where a pure mistake has occurred between parties, and one holds a claim against the other arising therefrom, does the statute of limitations commence to run from the time of the actual discovery of the mistake, or from the time when, in the exercise of reasonable diligence, the party holding the claim should have discovered such mistake?” Code, section 3448, provides that, in actions for relief on the ground of fraud or mistake, the cause of action shall not be deemed to have accrued until the fraud or mistake complained of shall have been discovered by the party aggrieved. With reference to the mistake here relied upon, the referee found that defendant in the exercise of due...