Wilson v. Iowa Southern Utilities Co. of Delaware, 45131.

• Court: United States State Supreme Court of Iowa
• Citation: 293 N.W. 77,228 Iowa 724
• Docket Number: 45131.
• Parties: WILSON v. IOWA SOUTHERN UTILITIES CO. OF DELAWARE.
• Decision Date: 18 June 1940

293 N.W. 77

228 Iowa 724

WILSON
v.
IOWA SOUTHERN UTILITIES CO. OF DELAWARE.

No. 45131.

Supreme Court of Iowa.

June 18, 1940

Appeal from District Court, Clarke County; Homer A. Fuller, Judge.

An action at law to recover judgment against the defendant under its oral agreement, made at the time it sold its preferred stock to the plaintiff, that it would repurchase said stock at any time on request of the plaintiff. From a judgment for the plaintiff on a verdict of the jury, directed by the court, and from other adverse rulings, the defendant has appealed.

Reversed. [293 N.W. 78]

Valentine & Valentine, of Centerville, and Everette K. Jones, of Osceola, for appellant.

O. M. Slaymaker, R. E. Killmar, and D. D. Slaymaker, all of Osceola, for appellee.

BLISS, Justice.

Plaintiff, in her petition, filed October 17, 1938, alleged: That the defendant maintained an office and agency in Osceola, in charge of its agent and manager, W. F. Hutchinson, who, on October 6, 1930, sold to her five shares of the defendant's cumulative preferred stock, of the six per cent series, for which she paid the defendant $500; that the said Hutchinson, as a part of the transaction, verbally agreed with the plaintiff that the defendant would repurchase the stock from the plaintiff, at any time upon plaintiff's request, and would pay her therefor full par value, plus earned interest; and that on October 8, 1938, she made demand on the defendant by registered mail, with tender of the stock, to repurchase said stock, which demand was refused.

For answer the defendant admitted the purchase and payment of the stock as alleged, and denied all other allegations and any liability to plaintiff. By amendment to its answer, the defendant alleged that plaintiff's cause of action did not accrue within five years next preceding the commencement of the action, and was barred by the statute of limitations, Code 1939, § 11007; that plaintiff did not demand performance of the agreement to repurchase, nor commence the action, within a reasonable time after the making of the agreement, and no such demand was made thereafter and within the period of the statute of limitations, and therefore the plaintiff could not recover; and that an unreasonable length of time elapsed between the date of the alleged agreement to repurchase and the demand for performance and the commencement of the action, and the plaintiff was therefore guilty of laches, which barred her recovery.

In reply the plaintiff denied the allegations of the answer and alleged that within five years just prior to the commencement of the action the defendant admitted in writing that plaintiff's claim was unpaid and agreed in writing to pay the same, but that the writings had been destroyed and could not be produced. [293 N.W. 79]

The evidence discloses, without dispute, that the plaintiff, a married woman, fifty-seven years old, in the first week of October, 1930, went to Mr. Hutchinson, and told him that she had $500 in two Osceola banks, representing her savings since she had been married; that she was apprehensive that the banks might close, and she wished to withdraw it and put it some place where it would be safe; that she had heard others say they had bought the defendant's stock and were getting more interest than the bank was paying and that it was much safer; that Hutchinson told her that it was safer with the defendant than in the bank, and just as safe as gold; that she told him she and her husband might go to California, that they were unsettled, and might need it for something else, and Hutchinson told her that anyone who bought the defendant's stock could have their money back any time they wanted it, and that she could have hers at any time she requested it; that he further said she would get six per cent interest, or $7.50 every three months; and that relying on this representation she withdrew her money from the banks and paid $500 in currency to Hutchinson for the stock, which she received in about a week. She further testified that when the defendant would fail to send the quarterly remittances of interest or dividends, she would receive a letter from the defendant explaining why it was not paid, and that it would pay the interest as soon as it could. She testified that the letters had been destroyed. This testimony as to the contents of the letters was admitted over the defendant's objection that it was incompetent and irrelevant. The secretary of Hutchinson corroborated plaintiff's testimony relative to her talk and transaction with Hutchinson. Plaintiff admitted that she made no demand upon defendant to repurchase until her attorney's letter of October 8, 1938. The defendant admitted receipt of the letter. There was undisputed evidence that plaintiff had received dividends up to and including December 31, 1931, and thereafter on January 19, 1935, July 3, 1935, December 24, 1935, July 1, 1936, December 23, 1936, April 1, 1937, December 20, 1937, and July 1, 1938.

The above statement covers in substance the evidence for the plaintiff. When plaintiff rested the defendant moved for a directed verdict upon seven grounds, including the affirmative defenses alleged in the amended answer, and that the evidence was insufficient, the alleged agreement was too indefinite, and that Hutchinson had no authority to make the agreement.

Upon the overruling of this motion, the defendant announced that it stood upon its motion for a directed verdict, and that it would not introduce any testimony. Plaintiff then moved for a directed verdict upon the grounds that she had established the allegations of her petition and that the defendant had neither pleaded nor proved a defense. The court sustained this motion and, at the court's direction, the jury returned a verdict for the plaintiff, upon which judgment was entered. Defendant's motion for a new trial and to set aside the verdict, based on thirteen grounds was overruled.

On this appeal appellant assigned three errors for reversal. The first assignment is " the court erred to the prejudice of defendant in failing and refusing to direct a verdict in its favor on the grounds stated in defendant's motion for a directed verdict." The appellant then refers to the pages of the abstract where the motion may be found, and states that it calls attention to grounds three, four and five thereof, being the three affirmative defenses which it set up in its amended answer, to wit, the statute of limitations, failure to make demand within a reasonable time and within the statute of limitations, and laches. The appellant then sets out sufficient of the testimony to show the alleged agreement and the time of the demand.

The second assignment is " the court erred to the prejudice of defendant in sustaining plaintiff's motion for a directed verdict."

The third assignment is " the court erred to the prejudice of defendant in failing and refusing to grant its motion for new trial and to set aside the verdict of the jury."

Each of these assignments is followed by this statement: " The evidence, brief of authorities and argument applicable to this division are the same as under Division 1, and the contents of Division 1 are made applicable hereto without repetition."

I.

Appellee asserts that none of the assignments of error comply with Rule 30. There is no compliance in several respects. This is particularly true of the second and third assignments. Morrow v. Downing, 210 Iowa 1195, 232 N.W. 483; People's Trust & Savings Bank v. Smith, 212 Iowa 124, 236 N.W. 30; [293 N.W. 80] Brenton v. Lewiston, 213 Iowa 227, 236 N.W. 28; Rawleigh Medical Company v. Bane, 218 Iowa 154, 254 N.W. 18; Hawkins v. Burton, 225 Iowa 707, 281 N.W. 342; Jones v. Krambeck, Iowa, 290 N.W. 56; Prudential Ins. Co. v. Burns, 223 Iowa 714, 273 N.W. 845; Independent School Dist. v. Hartwick, Iowa, 284 N.W. 453.

However, as stated by the appellee, " there is only one question in this case, and that is, did the trial court err in refusing to direct a verdict for the defendant on the ground that the claim sued on was barred by the statute of limitations?"

The appellant expressed its concurrence in this view thus: " It is quite...