Williams Shoe Co. v. C. Gotzian & Co.

• Citation: 130 Iowa 710,107 N.W. 807
• Court: Iowa Supreme Court
• Decision Date: 06 June 1906
• Parties: WILLIAMS SHOE CO. v. C. GOTZIAN & CO. ET AL.

130 Iowa 710

107 N.W. 807

WILLIAMS SHOE CO.

v.C. GOTZIAN & CO. ET AL.

Supreme Court of Iowa.

June 6, 1906.

Appeal from District Court, Woodbury County; John F. Oliver, Judge.

Suit in equity to recover of defendant Gotzian & Co. the amount due defendant for goods sold and delivered defendant Mayhew, and for an accounting of the proceeds of certain goods received from Mayhew by Gotzian & Co. Defendant Gotzian & Co. alone answered, and filed what was to all intents and purposes a general denial. The case was tried to the court, resulting in a judgment for part of plaintiff's claim. Both parties appeal; but, as Gotzian & Co. first served notice, it will be treated as appellant. Affirmed.Shull & Farnsworth and Gilbert & Greenman, for appellant.

F. E. Gill, for appellee.

DEEMER, J.

Save for a ruling upon a motion to strike an amendment to the petition, filed after the evidence had been taken and after the arguments had been made, but before the decision of the trial court, there is no need of referring to the pleadings at length. Suffice it to say that in the original petition it was charged that Gotzian & Co. received from defendant Mayhew a certain stock of goods owned by him, in satisfaction of a claim held by it against him, and upon the further consideration that it would pay his outstanding indebtedness; that plaintiff was at that time one of Mayhew's creditors to the extent of $390; and that Gotzian & Co., although receiving goods and their proceeds, failed to pay plaintiff's claim.

After the claim had been argued, but before final submission, plaintiff amended its petition, ostensibly to meet the evidence in the case, in which it alleged that the agreement between Mayhew and Gotzian & Co. was that his (Mayhew's) creditors should either be paid in full, or that Gotzian & Co. undertook to pay these creditors their pro rata share out of the property received by them; that as a matter of fact Gotzian & Co. had paid all other creditors, save plaintiff, 50 cents on the dollar for their claims; and that 50 per cent. was an equitable pro rata share of Mayhew assets received by the said Gotzian & Co., not including certain other securities held by it. In this amendment plaintiff asked the court to determine what the contract was and to render judgment accordingly. Defendant and appellant moved to strike this amendment, because filed too late, and because it tendered a new issue and introduced a new cause of action to defendant's prejudice. This motion was overruled, and the trial court rendered judgment for plaintiff, on the theory that the promise was to pay its equitable proportion of the assets, or 50 per cent. of the amount of its claim. This judgment also included interest upon the amount awarded from December 17, 1903, the time when it is claimed appellant might have paid the claim.

This appeal presents the correctness of the ruling on the motion to strike the amendment, the competency and sufficiency of the evidence to support the judgment, and the action of the court in allowing interest on the claim. Plaintiff's appeal is bottomed upon the proposition that it should have had judgment for the full amount of its claim, with interest. Amendments to pleadings are allowed with great liberality in this state, and a large discretion is vested in trial courts in permitting them. Unless some prejudice results from the filing thereof, or some injustice appears, rulings with reference to such matters will not be disturbed in this court. The amendment in question did not introduce a new cause of action; but, if it did, no possible prejudice resulted, for it was evidently to meet the testimony already adduced and to conform the pleadings to the proofs. Gotzian & Co., through their witnesses, went into the transaction between it and Mayhew fully, and testified as to every matter connected therewith. This it did under the issues as they originally stood, and the amendment pleaded matter which went to the amount, rather than the right, of recovery. The promise was direct, and not collateral, made to subserve some purpose of the promisor, and to pay out of or because of property conveyed to it by Mayhew. Such promises need not be in writing. Pratt v. Fishwild, 121 Iowa, 648, 96 N. W. 1089;French v. French, 84 Iowa, 661, 51 N. W. 145, 15 L. R. A. 300.

The evidence shows that Mayhew was engaged in the retail boot and shoe business in the city of Sioux City during the years 1902 and 1903. Gotzian & Co. was in the year 1903, and for many years prior thereto, engaged in the wholesale boot and shoe business at St. Paul, Minn. Mayhew had been an employé of this firm for many years, and when he concluded to engage in business for himself he solicited Gotzian & Co. to give him a line of credit--credit to the amount of $2,500. This the firm promised to do, and at the same time it took a mortgage upon some Dakota land from Mayhew for the sum of $1,600. Mayhew commenced his business in the year 1902, and by the last of August of the year 1903 he had become indebted to Gotzian & Co. to an amount exceeding $6,900. He owed other creditors at this time, including plaintiff, something like $1,500....