De Wulf v. Dix

• Decision Date: 06 February 1900
• Citation: 81 N.W. 779,110 Iowa 553
• Parties: CHARLES DE WULF, v. S. D. DIX, HENRY HINES, and WILLIAM D. CRENSHAW, Appellants
• Court: Iowa Supreme Court

81 N.W. 779

110 Iowa 553

CHARLES DE WULF, v. S. D. DIX, HENRY HINES, and WILLIAM D. CRENSHAW, Appellants

Supreme Court of Iowa, Des Moines

February 6, 1900

Appeal from Cedar District Court.--HON. WILLIAM G. THOMPSON, Judge.

ACTION at law to recover damages for conspiracy, 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. GRANGER, C. J., not sitting.

OPINION

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 one hundred and sixty acres of land in Boone county, Neb., for a stock of goods located at Mechanicsville, Iowa, belonging to defendant Dix,--Hines to have all the goods that he obtained over two thousand dollars in value as compensation for his services. On the twenty-eighth 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 one hundred and sixty acres, free of incumbrance, at a valuation of twenty dollars per acre, in exchange for the stock of goods of defendant Dix; and it was provided that, if said stock invoiced for more than three thousand two hundred dollars, 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 four hundred dollars 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 three thousand two hundred dollars 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 four hundred and fifty dollars, and deposited the amount received with the bank, as agreed. Hines took out of the stock goods invoiced to the amount of one thousand dollars, 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 four hundred and fifty dollars deposited with the bank. Dix declined to rescind, and, as plaintiff failed to pay the four hundred and fifty dollar 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 two thousand dollars worth of new and salable goods, and the defendant Hines took and carried away about one thousand dollars worth; that the mortgage to the bank for the four hundred and fifty dollars was procured by false and fraudulent representations of the defendant Hines. Rescission of the contract is also pleaded and judgment for three thousand dollars 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 one thousand four hundred dollars 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 three thousand dollars worth of the goods were taken out of the store by defendant Dix the morning before the invoice was taken, and that about one thousand dollars 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 five hundred dollars, and some say not more than seventy-five cents on the dollars 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. Ellsworth, 104 Iowa 442; Bailey v. Bailey, 94 Iowa 598, 63 N.W. 341.

II. Instead of stating the issues in a concise and comprehensive manner, the court used copies of the pleadings, and...