Wood v. Rice

• Decision Date: 20 October 1902
• Citation: 118 Iowa 104,91 N.W. 902
• Parties: WOOD v. RICE ET AL.
• Court: Iowa Supreme Court

118 Iowa 104

91 N.W. 902

WOOD

v.RICE ET AL.

Supreme Court of Iowa.

Oct. 20, 1902.

Appeal from district court, Story county; S. M. Weaver, Judge.

Action to reform a contract for the sale of fruit trees. Judgment for plaintiff. Defendants appeal. Affirmed.Maxwell & Maxwell, for appellants.

McCarthy & Lee, for appellee.

McCLAIN, J.

The error relied on in this case for reversal is the refusal of the trial court to grant a change of venue from Story county to Pottawattamie county, which was shown to be the county of the residence of defendants. The action, however, was with reference to a contract made in Story county for defendant Rice by defendant Fogarty, his agent, who was at the time, by himself and subagents, soliciting orders for his principal, and the notice of the action was served in Story county on Fogarty while he was there for the purpose of delivering fruit trees in fulfillment of orders previously taken, and to be performed in said county. It appears from the affidavits that those who had given orders for trees to be delivered in Story county were notified to be present at a certain time and place in the town of Ames, in that county, to receive their trees, and that Fogarty, upon whom the notice of suit was served, was there present for the purpose of making delivery. The question is whether defendant Rice had an agency at Ames, so as to justify the bringing of an action against him in that county, under the provisions of Code, § 3500, which reads as follows: “When a corporation, company or individual, has an office or agency in any county for the transaction of business any actions growing out of, or connected with the business of that office or agency may be brought in the county where such office or agency is located.” The case clearly falls within the provisions of Milligan v. Davis, 49 Iowa, 126;Ockerson v. Burnham, 63 Iowa, 570, 19 N. W. 676. In the first of these cases it was held that where the principal had an agent in a county for the purpose of performing acts there with reference to the sale of property, whether such agent were a special or a general agent, there was an agency sufficient to support the bringing of an action in that county with reference to such sale. In this case the contract was made by agents specially authorized to solicit orders in Story county, in which orders the delivery of the fruit trees in Story county was specially provided for; and, at the time suit was brought, the agent of the...