Welch v. Urbany , 112 Iowa 531 ( 1900 )

Ladd, J.

1 This is an action for damages resulting to plaintiff from an alleged breach of contract by which defendants, in consideration of the conveyance of certain land, agreed to transfer to him a stock of jiquors and some saloon fixtures and furniture then located at Carroll, Iowa. He executed the deed as stipulated, and his claim is not that defendants have converted his property, but that they have failed and refused to deliver any in-pursuance of their agreement; not that they appropriated his goods to their own use, but that they have never transferred title to him by delivery, as they were bound to do.under the terms of the contract. Under no other circumstances could the venue have been laid in Dubuque county, in virtue of the stipulation contained in the agreement that “all rights arising under this contract” should be payable there; for, if the contract had been performed, and the goods thereafter appropriated by the defendants, any claim therefor plaintiff might have was wholly independent of the instrument, and the venue must necessarily have been laid in Carroll county; where the defendants- reside. The pleadings were framed in accordance with this view, and for this reason the motion to transfer to that county was overruled. Because of this the court, regardless of any oral arrangement, correctly instructed the jury, in paragraph Iff, that unless Wernimont was authorized by defendants to enter into the written agreement, or it was afterwards ratified by them, the plaintiff could not recover. The sole questions for the jury, then; were these: (1) Were the defendants bound by the written contract ? (2) If so, was the property delivered in pursuance thereof? And (3) if not so delivered, what was its fair market value? Albers’ mortgage necessarily depended on delivery for its validity, and neither it nor the foreclosure thereof was otherwise put in issue, save in averring that it belonged to Urbany.

2 3 II. The precise issues have been extracted from the pleadings, in order to ascertain whether the instructions complained of fairly present them to the jury; for it is of the utmost importance to know what is to be decided, before advising others how this shall be done. In the fourteenth instruction the jurors were told that, if the property was not delivered^ defendants were liable for its fair market value. But from this should have been deducted, in making up their verdict, the difference of $400, represented by the note to Albers, upon which his counterclaim was based. If there was a failure to deliver, no circumstances were disclosed relieving either defendant from li ability, and the amount of the note to Albers could not well be applied in extinguishment of the joint debt as to him without at the same time diminishing that-of IJrbany to the same extent. The sixteenth instruction permits a recovery for one and against the other defendant, and apparently authorizes an allowance of the $400 only in event of a finding against Albers. Besides, it, with the seventeenth and eighteenth paragraphs, is on the theory that the action is for conversion. It may, in part, be set out: “If you find the der fendants, or either.of them, converted said property to their or his own use prior to the mortgage sale, then you should find for the plaintiff the fair market value of the property converted at the time it was converted, against the defendants so converting the same, except, if you should find defendant Albers converted the property, you should deduct the whole amount of the $400 note from such value of the property, if you find the value to be greater than $400. If less than $400, Albers should have a verdict for the difference.” In the seventeenth instruction the jury is advised that “it is admitted that plaintiff can recover for the value of the stock of liquors.” Evidently this was based on the thought that this was not included in the mortgages, and Albers, statement that he had disposed of it. But, as already pointed out, this is not an action for conversion. True, Albers did not except to this, but he did to -the eighteenth paragraph, containing the. same, error. Moreover it is not limited to Albers, but applies to Ur-bany as well. We think the court erred in permitting any-recovery, save on failure to deliver; in not clearly directing, '> in making up the verdict, the deduction of $400 from the • value of the property, as found; and in saying the right to-recover for the stock of liquors was admitted. — Reversed.