Hornish v. Peck

Rothrock, J. i appeal • issíieeof°cxecution. After the plaintiff had perfected an appeal and filed a transcript and abstract in this court, he caused an execution to issue from the court below upon the judgment in his favor. This is made the ground 0f a motion by appellee to dismiss the appeal. It appears that the execution was levied upon a stock of goods and merchandise, which had been seized upon a chattel mortgage given to other j>arties for an amount greatly in excess of the value of the mortgaged property. The levy of the execution was afterward released, and the .execution returned.. Notice of garnishment was served on one Pond, the trustee named in the chattel mortgage. No proceedings have been taken against Pond as garnishee, and the plaintiff admits that such proceedings would be unavailing, and offers to discharge the garnishee. We think, under these circum [161] stances, the plaintiff has not waived his right to prosecute the appeal, and that the motion to dismiss should be overruled. See Dudman v. Earl, 49 Iowa, 37. II. The defendant incorporated in his answer and counterclaim a motion for a trial upon written evidence. An order was made by the court that the cause should be tried upon written evidence in the form of depositions, and it was so tried. It is, therefore, triable anew in this court. 2. PKEKTCIPAI. and agent: authority of ufent repre-^-sentations. III. We are not aware of any controverted proposition of law in the case. A large volume of testimony was taken upon the question of fraud in inducing the de- / x ° fendant to enter into the contract, and-the want ’ consideration for the notes in controversy. Wo are required to determine from the evidence whether the allegations of the answer and counter-claim have been sustained by the proof. We cannot set out the evidence so as to demonstrate the correctness of our conclusions. To do so would require at least one hundred and twenty-five pages of our reports. We can but state the conclusions of fact at which we have arrived. Both parties reside at a considerable distance from the line of the railroad which has been constructed from Monroe to Newton. During the years 1872 and 1873, the construction company was engaged in prosecuting the work on the road, and continued up to the fall of 1873 when the work ceased. The stockholders in the construction company were, ITornish (the plaintiff), Albright, Davis, Farmer and McDowell. The work remained in this incomplete condition until the fall of 1875. In the meantime, Davis was the active member of the construction company. His efforts seem to have consisted in endeavoring to induce parties to buy out the stock and interest of Hornish, Albright and McDowell. Davis, with other parties, had an interview with the defendant at Des Moines, and there endeavored to induce the defendant to purchase. At this interview Davis represented that he had authority from Hornish to sell the interests of Hornish, Albright and [162] McDowell. Davis, at that interview, represented the property of the construction company as being largely in excess of what it actually was. This is clearly shown by the evidence, and indeed we do not understand Davis to deny it in his testimony. That Davis knew the representations to be false, especially as to the amount of tax subsidies, the property of the construction company, such as tools, ties, timbers, etc., we think, is fairly established. He had been in charge of the construction during the whole progress of the work, and afterwards was the managing member of the company. It is urged in argument by counsel for appellant that there is not sufficient evidence to establish that Davis was the agent of Hornish for the sale of his stock and interest i® the construction company. There is no direct evidence of such agency; that is, it does not appear in evidence that Hornish, by an express contract or direction, constituted Davis his agent. But it does appear that Hornish was anxious to sell, and that Davis endeavored to find a purchaser. A number of letters written by Hornish and Davis to each other were introduced in evidence, and we think they fairly establish the agency of Davis. That defendant relied upon the representations as to the property, rights and interests of the construction company, we think is fairly established, and that he was damaged by the contract does not seem to be controverted. The court below found that there was a partial failure of consideration for the notes, because the property of the construction company was misrepresented. It is urged that there was no failure of consideration nor fraud, because Peck received all he contracted for, which was an assignment of the shares of stock held by Hornish, Albright and McDowell. In one sense this is true, but if that which made the stock valuable, that is, the property of the corporation, was misrepresented, it is as clear a case of fraud as it would have been if the defendant had been deceived as to the number of shares oí stock he contracted for. "Wo have not made an accounting of the difference in the [163] value of the property from what it was represented to be. That it would not be less than found by the court below is clearly shown by the evidence, and we are content to leave it as fixed by the learned Circuit Judge. Affirmed.