Yeager v. Durflinger

• Decision Date: 30 May 1979
• Docket Number: No. 61838,61838
• Citation: 280 N.W.2d 1
• Parties: Clark YEAGER, Appellee, v. George O. DURFLINGER, Jr., Appellant.
• Court: Iowa Supreme Court

Page 1

280 N.W.2d 1

Clark YEAGER, Appellee, v. George O. DURFLINGER, Jr., Appellant.

No. 61838.

Supreme Court of Iowa.

May 30, 1979.

Thomas M. Walter, of Barnes & Walter, Ottumwa, for appellant.

Kenneth L. Keith, of Dull, Keith & Beaver, Ottumwa, for appellee.

Considered by REYNOLDSON, C. J., and LeGRAND, HARRIS, ALLBEE, and LARSON, JJ.

ALLBEE, Justice.

Plaintiff, Clark Yeager, brought this action for breach of an oral contract. That contract, made with defendant, George O. Durflinger, Jr., required that plaintiff purchase cows and keep them on his farm during the winter. Defendant would then purchase the cows from plaintiff in the spring for a guaranteed price.

Defendant was a livestock farmer and buyer, while plaintiff's farming consisted primarily of raising corn and soybeans. The benefit of the contract to defendant was that he would be able to take advantage of cattle prices which were generally significantly higher in the spring than in the prior fall or winter. Plaintiff's advantage lay in the fact that he could winter the cows primarily on cornstalks and other residue left in his cornfields after harvesting and thus receive value for the use of what would otherwise be waste.

The contract which gives rise to this dispute was performed during the winter of 1973-74. This was the third year in which the parties had entered into such an arrangement. While the parties dispute several details, the contract generally provided that plaintiff would purchase cows and winter them in his cornfields. He provided, in addition to the residue left in the field after harvesting, salt and mineral blocks, protein blocks, water, and, on severe winter days when the cattle could not reach the cornstalks through the snow, ground corn. In the spring, defendant was to pay plaintiff the price which plaintiff had paid for the cows plus ten dollars per cow for each month the cows had been kept.

Plaintiff claimed, and defendant denied, that the agreement called for defendant to remove the cows from plaintiff's premises by March 1. There was testimony that the cows had been removed in the first few days of March in the prior years. In addition, plaintiff explained that failure to remove the cows by early March would result in delaying his preparation for planting. He also testified that allowing the cows to remain after the ground began to thaw would result in packing and destruction of the soil structure.

Defendant did not remove the last of the cows until May. His plan had been the victim of a precipitous decline in cattle prices between the fall of 1973 and the spring of 1974. This made it difficult or impossible for him to sell the cows profitably. He, however, attributed his difficulties in selling the cows to their condition, which he described as "getting run down" and "getting thin." He blamed the cows' condition on plaintiff, claiming that the cows had not received adequate care and feed.

Plaintiff, for his part, testified that the cattle had been in good condition on March 1, but that he had begun to run out of cornfields on which the cows could forage and that the cornstalks which remained had begun to rot as the weather warmed up. When the cornstalks ran out, plaintiff fed the cows hay and ground corn, at greater expense. He also called a veterinarian when, in the middle of March, a number of cows contracted leptospirosis. Of nine cows which died while in plaintiff's possession, only two expired before March 1; one of those died because she became stuck in a creek. When the last of the cows were removed in May, they were taken to the farm of defendant's brother, Harry Durflinger.

Plaintiff computed his damages in this manner. The total purchase price of the cows was $126,355. Care of the cows at the agreed rate of ten dollars per cow per month through March 1 amounted to $12,727. Expenses incurred after March 1 totalled $2650.

From the sum of those figures, plaintiff deducted the cost of the two cows which died before March 1 and four cows which plaintiff kept, a subtotal of $2346; the price of cows which plaintiff sold to his neighbors, a subtotal of $3760; and two payments of $14,000 and $75,000 which defendant made, a subtotal of $89,000. Thus, plaintiff computed his damages as being $46,626.

The jury apparently found plaintiff's understanding of the agreement to be the more accurate and agreed with his computation of damages, because it returned a verdict for him in the amount he demanded. Trial court overruled defendant's motion for a new trial and entered judgment on the verdict. Defendant appealed.

I. The issue which demands our initial attention has been raised by plaintiff's motion to dismiss this appeal. That motion contends that defendant voluntarily paid the judgment and has thus waived any right to appeal.

There is no dispute about the following facts, which appear from affidavits and documents filed with the motion and resistance. After judgment entry, plaintiff took steps to enforce the judgment, including subjecting defendant to a debtor's examination and transcripting the Wapello County judgment into the records in Jefferson County, where defendant owned real estate. In early May 1978, the sheriff of Wapello County levied upon certain of defendant's personal property, including grain, hogs, and cattle.

In order to meet his debts, defendant applied for a loan which was to be secured by a mortgage on his real estate in Jefferson and Wapello Counties, and paid the lender a $10,000 commitment fee which was not refundable if the loan was disapproved. The lender refused to approve the loan unless the judgment lien was removed and, in addition, refused to accept the posting of a supersedeas bond. Finally, plaintiff rejected defendant's suggestion that a fund representing the judgment be placed in escrow in exchange for a release by plaintiff.

Under these circumstances, defendant paid the judgment in full. Plaintiff's counsel drafted, and plaintiff signed, this release:

In consideration of the Defendant paying in full the judgment and costs in the above-entitled matter voluntarily and with full knowledge of the consequences thereof, undersigned Plaintiff hereby fully satisfies and releases the judgment against the Defendant in the above-entitled matter.

The problem which confronts us is to determine what consequences ought to flow from these uncontroverted facts.

As was said in Starke v. Horak, 260 N.W.2d 406, 407 (1977):

Ordinarily voluntary compliance with a judgment by a party requires dismissal of his appeal. (Citation.) But this court does not have a wooden attitude about dismissal.....

The burden to show facts demonstrating a waiver of appellate rights is on plaintiff in this case. See Millsap v. Cedar Rapids Civil Service Commission, 249 N.W.2d 679, 683 (Iowa 1977). Starke noted several recent decisions which, when taken in sum with Starke itself, indicate that this court has become less willing to find a waiver of the right to appeal from compliance with a judgment.

The determination of whether a judgment has been complied with voluntarily, resulting in a waiver, must be answered on a case by case basis. Defendant's compliance in the present case was not voluntary and did not result in a waiver of the right to appeal. The usual means of delaying enforcement of a judgment, the use of a supersedeas bond, was denied to him by his lender. The requirements of the lender and the intransigence of the plaintiff forced defendant to satisfy the judgment or face larger losses. Thus, that satisfaction cannot be termed voluntary within any usual sense of the word. See Armstrong v. Douglas Park Building Association, 176 Ill. 298, 301, 52 N.E. 886, 887 (1898); Lumaghi v. Abt, 126 Mo.App. 221, 227-28, 103 S.W. 104, 105 (1907); Favret Co. v. West, 21 Ohio App.2d 38, 254 N.E.2d 709, 710 (1970). Nor can the recitations of the release, which was drafted and signed by plaintiff, have any binding effect on defendant.

When faced with an essentially similar factual situation in Hipp v. Crenshaw, 64 Iowa 404, 20 N.W. 492 (1884), this court found waiver and dismissed the appeal. Hipp is not in accord with recent developments in this area. It is therefore overruled.

We deny the motion to dismiss and proceed to consider defendant's appeal on its merits.

II. Defendant first contends that trial court committed error by overruling defendant's motion in limine which called for exclusion of any mention of compromise negotiations, by permitting plaintiff's counsel to refer to such negotiations in his opening statement, by allowing examination of defendant on that topic, and by refusing to grant a mistrial when another witness testified on the subject. This assignment involves four points which we discuss individually.

First, the denial of a motion in limine cannot constitute reversible error. State v. Garrett, 183 N.W.2d 652, 655 (Iowa 1971). Instead, review of questions raised by such a motion is dependent upon the making of a proper objection at the time that the allegedly prejudicial evidence is offered. Twyford v. Weber, 220 N.W.2d 919, 924 (Iowa 1974).

The second point to be considered focuses upon the comments of plaintiff's counsel in his opening statement. Those remarks, however, made no reference to any offer to compromise. They instead told the jury that plaintiff expected to produce evidence of an admission of fact by defendant. Such an admission is admissible. Nehring v. Smith, 243 Iowa 225, 231-34, 49 N.W.2d 831, 835-36 (1951). As the discussion of the next point will demonstrate, plaintiff's counsel apparently made the statement with the good faith belief that he would be able to produce supporting evidence. It was therefore proper. See Lamp v. Lannegan, 188 N.W. 982, 984 (Iowa 1922). See generally 88 C.J.S. Trial S 161, at 315 (1955).

The third point concerns certain questions directed to defendant on cross examination by plaintiff's counsel. The relevant portion of the transcript is...