De Wulf v. Dix

• Decision Date: 06 February 1900
• Citation: 81 N.W. 779,110 Iowa 553
• Parties: DE WULF v. DIX ET AL.
• Court: Iowa Supreme Court

110 Iowa 553

81 N.W. 779

DE WULF

v.DIX ET AL.

Supreme Court of Iowa.

Feb. 6, 1900.

Appeal from district court, Cedar county; William G. Thompson, Judge.

Action at law to recover damages for conspiring, and for false and fraudulent representations made as the inducement to an exchange of property between plaintiff and defendant Dix. The petition alleges that defendant Hines, although authorized by plaintiff to trade his (plaintiff's) land for a stock of goods at Mechanicsville, Iowa, conspired and confederated with the other defendants to cheat and defraud plaintiff out of his property; that defendant Crenshaw was an agent of his co-defendant Dix, and a party to the conspiracy; and that one Free, a clerk of defendant Dix, was also a party to the conspiracy. Defendant Dix admitted that Crenshaw was his agent, but denied the conspiracy and fraud charged in the petition. Crenshaw denied the alleged fraud and conspiracy, and denied any relations with defendant Hines. Free admitted he was a clerk, but denied all fraud and conspiracy, and denied any relations with Hines. Hines admitted that he was authorized to exchange plaintiff's land, but denied all charges of fraud and conspiracy. On these issues the case was tried to a jury, resulting in a verdict and judgment against all defendants except Free, and these defendants appeal. Reversed.W. H. Smith, Wright & Wright, and Jamison & Smyth, for appellants.

Chas. W. Kepler and Henry McClosky, for appellee.

DEEMER, J.

May 26, 1898, plaintiff and defendant Hines entered into a written agreement by the terms of which Hines was to exchange plaintiff's farm, consisting of 160 acres of land in Boone county, Neb., for a stock of goods located in Mechanicsville, Iowa, belonging to defendant Dix, Hines to have all goods that he obtained over $2,000 in value as compensation for his services. On the 28th day of May, plaintiff, and defendant Crenshaw, acting as agent for Dix, entered into a written contract for an exchange of properties, by the terms of which plaintiff agreed to give his 160 acres, free of incumbrance, at a valuation of $20 per acre, in exchange for the stock of goods of defendant Dix; and it was provided that, if said stock invoiced for more than $3,200, Dix was to retain the excess. The cost mark on the goods was designated as the price at which they should be invoiced. There was an incumbrance of $400 on the land, and it was agreed that plaintiff should either pay the same or deposit an amount sufficient to meet it in a bank at Mechanicsville. Pursuant to this agreement the goods were invoiced, and all in excess of the $3,200 were removed by defendant Dix from Mechanicsville to Cedar Rapids, at which latter place Dix also had a store. Plaintiff took possession of the stock, mortgaged it for $450, and deposited the amount received with the bank, as agreed. Hines took out of the stock goods invoiced to the amount of $1,000, claiming that he was entitled thereto as compensation for his services in effectuating the trade under his contract of May 26th. Through a representative, plaintiff had charge of the goods for several weeks, at the expiration of which time he notified Dix that he was dissatisfied with his trade, claimed that he had been swindled, demanded of defendant Dix a deed for his Nebraska land, and stopped payment of the $450 deposited with the bank. Dix declined to rescind, and, as plaintiff failed to pay the $450 debt that he had secured by mortgage on the stock of goods, the holder thereof proceeded to sell the stock undisposed of by plaintiff while he held possession under the chattel mortgage. The remainder of the stock did not sell for sufficient to extinguish the mortgage debt. This action was then commenced by plaintiff, who claims that defendants conspired and confederated together to cheat and defraud him out of his land, and that by fraud and false representations as to the character and value of the stock and as to the character and effect of the papers produced for him to sign they accomplished their purpose; that, after the contract was made, defendants Crenshaw, Dix, and Free, without consent of plaintiff, fraudulently carried away from the Mechanicsville stock something like $2,000 worth of new and salable goods, and the defendant Hines took and carried away about $1,000 worth; that the mortgage to the bank for the $450 was procured by false and fraudulent representations of the defendant Hines. Rescission of the contract is also pleaded, and judgment for $3,000 demanded. The answers were, in effect, general denials. Plaintiff is a Belgian, is unable to read or write the English language, and had very little familiarity with mercantile business. He testified, in effect, that the only contract he ever made with Crenshaw or Hines was to the effect that he was to have $1,400 in cash, over and above the mortgage, for his land. The contract between plaintiff and Hines and the one between plaintiff and Dix are both in writing, and bear the plaintiff's signature. The chattel mortgage on the stock of goods also appears to have been signed by plaintiff. He says, however, that he did not know what they contained, and that he signed them on the strength of representations made by Hines as to their contents. It also appears that about $3,000 worth of the goods were taken out of the store by defendant Dix the morning before the invoice was taken, and that about $1,000 worth were taken out by Hines. The remainder of the goods were not worth anything like the sum for which they were invoiced. Some of the witnesses say they were not worth more than $500, and some say not more than 70 cents on the dollar of the invoice price. Plaintiff was asked this question on his examination in chief: “Now, have you any property?” This was objected to, but the objection was overruled, and the ruling was followed by this further question: “Either real or personal, except the property you claim to have in this land in Nebraska?” To this the defendant also objected, but the objection was overruled, and witness answered, “That's all.” This evidence was wholly irrelevant to any issue in the case, and was evidently adduced for the purpose of showing plaintiff's poverty. It should not have been received. Cowan v. Musgrave, 73 Iowa, 384, 35 N. W. 496;Stevens v. Ellsworth, 95 Iowa, 231, 63 N. W. 683;Clark v. Same, 104 Iowa, 442, 73 N. W. 1023;Bailey v. Bailey, 94 Iowa, 598, 63 N. W. 341.

2. Instead of stating the issues in a con cise and comprehensive manner, the court used copies of the pleadings, and read them in hæc verba to the jury. Such a proceeding has been so...