Sketchley v. Smith & Co.

Given, C. J. i. venue: action foreign firm: counfy^of partner. I. Appellant contends that this is a personal action against M. E. Smith, and, he being a resident of Pottawattamie county, the change of place of trial should have been granted upon either of the applications; citing sections 2586 and 2553 of the Code. The action is against M. E. Smith & Co., of Omaha, — 544 — Nebraska, and not against any of the individuals composing that copartnership, No relief is asked against M. E. Smith individually. Langworthy v. Root, 10 Iowa, 260, cited, has no application. That was an action, aided by attachment, on the ground that the defendant had absconded, and does not relate to the question before us. The same is true of Wasson v. Millsap, 70 Iowa, 348. If this action was against M. E. Smith, those authorities would be in point. The action being against Smith & Co. alone, a copartnership not residing nor doing business in this state, there was no error in overruling the applications for change of place of trial. This conclusion renders it unnecessary that in this connection we notice appellee’s contention that M. E. Smith & Co. could be sued in Harrison county because of its doing business there through its agent Sketchley. 2. robmeb adjudication: different contract: recovery based on facts. II. To a correct understanding of the questions presented on the plea of former adjudication, it is necessary that we notice more fully the . . ", , . . „ . basis of the plaintiff' s claim m this action, . 1 and the matters adjudicated m the other, as shown by the record thereof. Plaintiff’s claim is that from April 1, 1885, to the commencement of this action, February 29, 1888, defendant was the owner of a stock of goods kept at Missouri Valley, Harrison county, Iowa ; and that in April, 1885, at the instance and request of the defendant, he took charge of said goods, and entered upon the sale thereof for the defendant; that there was no agreement as to compensation which the plaintiff was to have for his work in and about the sale and care of said goods ; that his services were reasonably worth eighteen hundred dollars. It appears that, prior to April, 1885, the plaintiff was running a mercantile business at Marquette. That he gave the defendant mortgages upon certain real estate, and upon his stock of goods. That the goods were removed to Missouri Valley, and put upon sale there; the defendant furnishing, from time to time, additional merchandise, that was added to the stock, and with — 545 — which stock business was carried on under the management and control oí the plaintiff, — the plaintiff claiming to have done so as agent for the defendant; the defendant claiming he did so for himself.’ It appears from the-record of the proceedings had in' the district court of Pottawattamie county that on March 4, 1888, M. E. Smith & Co. filed their petition against T. H. Sketchley, asking the foreclosure of said real-estate mortgage; to-which Sketchley answered, averring payment, and setting up counter-claim on account for services rendered by Minerva N. Sketchley, assigned to him, one thousand dollars; and for safe, book-accounts and notes, six hundred and seventy-five dollars ; and for thirty days’ services rendered by himself in February and March, 1885, in taking charge of stock of goods in. Nebraska, and work and labor with reference thereto, one hundred dollars. Smith & Co. filed an amendment-asking a foreclosure of the chattel mortgage given by Sketchley on “my entire stock of merchandise at Marquette, Nebraska, * * *. and all future advances to be made on said stock; * * * that said mort- * gagor consents to give mortgagee possession under said mortgage immediately, and consents that mortgagee may sell at private sale until his indebtedness is fully satisfied, or until a sufficient amount is sold to pay the amount due, as the case may be, with reasonable attorney’s fees, and all costs pertaining to taking, keeping, advertising and. selling of said property; any sums remaining, to be paid on demand to the party of the first part.” In said amended petition, Smith & Co. alleged that about May, 1885, under an oral agreement between the parties, the property embraced in the chattel mortgage was removed to Missouri Talley, Iowa, and the defendant placed in charge thereof as mortgagor; that he was to proceed with the sale of the said mortgaged property, and account for the same promptly, until the mortgage indebtedness was fully paid ; that in order to expedite the sale of said goods, and assist Sketchley in realizing — 546 — thereon, Smith & Co. would advance, from time to time, at current Avholesale rates, such merchandise as was deemed necessary by Sketchley, a separate account of which was to be kept by him ; that the merchandise so advanced was to be included in the chattel mortgage as additions to the original stock, and Smith & Co. were to have a lien on the same for the payment of the advances, as well as for the notes described in the mortgage ; that neither Sketchley nor his agents were to receive any compensation for services in disposing of said stock; that under this agreement Smith & Co. advanced merchandise to the sum of six thousand dollars. Smith & Co., in addition to the relief prayed for in its original petition, asked judgment for twelve hundred and ninety-two dollars and interest, and that its chattel mortgage be foreclosed on said stock of goods, and for special execution. Sketchley answered this amendment, admitting the execution of the chattel mortgage, and alleging that the same was fully paid; that Smith ,& Co. had. converted the safe, notes and book-accounts described therein, and had received the proceeds of all the goods described in said mortgage, to the value of fifteen hundred dollars; and denying “each and every allegation pertaining to an alleged agreement as set out in said amendment.” Upon these issues and the proofs, the district court of Pottawattamie county found that Sketchley executed the mortgages, and the notes secured thereby; that there was due on said notes $702.32, and $41.60 attorney’s fees; and further found as follows: “(4) That subsequent to the execution and delivery of said notes and securities, by mutual arrangement between the parties, the defendant’s.stock of goods at Marquette, Nebraska, was removed to Missouri Talley, Iowa; the defendant, Sketchley, still remaining in possession and charge thereof as the owner. (5) That, under and by virtue of an oral agreement had with plaintiff, defendant was to remain in possession of said stock of goods, and sell the same, and apply the proceeds on the mortgage indebtedness. (6) That plaintiff was to furnish defendant — 547 — additions to said stock, from time to time, as should be demanded, which additions, under and by virtue of said chattel mortgage and oral agreement, were included in the lien of said mortgage; and plaintiff’s security for such advances was embraced and included in the lien of said chattel mortgage, together with the notes secured thereby. (7) That, under and by virtue of said agreement, plaintiff sold and delivered to defendant at Missouri Yalley, Iowa, merchandise aggregating the amount of $6, 176.35, on which account there remains due and unpaid the sum of $1,292.88, for which amount plaintiffs are entitled to a foreclosure of their chattel mortgage. (8) That the property on which the plaintiffs are entitled to a foreclosure of their chattel mortgage herein is the identical property and the same taken by plaintiffs under a delivery bond given by them in certain attachment proceedings had in the district court of Harrison county, Iowa, in an action therein pending wherein Thomas H. Sketchley is plaintiff, and M. E. Smith & Co., plaintiffs herein, are the defendants.” It was decreed that Smith & Co. recover $702.32 as debt, and $41.60 attorney’s fees and cost; that the mortgage on the real estate be foreclosed; that Smith & Co. have judgment on account against Sketchley for $1,292.88, and a decree establishing and declaring his chattel mortgage lien to be a lien on all the personal property of the defendant, T. H. Sketchley, at Missouri Yalley, Iowa, in his store in said place, more particularly described as the property taken by M. E. Smith & Co. under a delivery bond in attachment proceedings from Harrison county district court, wherein T. H. Sketchley is plaintiff, and M. E. Smith & Co. defendants, and that ■special execution issue for the sale of said property,” etc. III. This action is to recover for services rendered by plaintiff himself at Missouri Yalley. No claim was made for these services in the adjudicated case, but appellant’s contention is that “a party cannot split and divide up his causes of action into different divisions, and bring separate actions;” citing Freeman, Judgment, sections 239, 240. That authority says: “The plaintiff — 548 — cannot be allowed to split np the various covenants or promises contained in one contract, and to recover upon each separately. It can have but one recovery upon one contract.” The recoveries sought in the adjudicated case were upon other and different contracts from that upon which recovery is sought in this. This action was commenced March 3, and that March 4, 1888. Had this claim been pleaded in that case, it would have been a sufficient answer that it was pending in this. Dalter v. Laue, 13 Iowa, 538, and Street v. Beckman, 43 Iowa, 496, cited by counsel, are not in point on this question. In the former, the court held that a defendant in chancery will not be permitted to set up a defense which he has neglected to interpose, and. which he should have interposed, to an action at law involving the same subject-matter; in the latter, that an adjudication of indebtedness upon an item of account by one court will be a bar to an action upon it in another, notwithstanding it was not the intention of the plaintiff to include it in the former action. IV. The plaintiff bases his right of recovery upon the claim that the goods in the care, and sale of which he rendered the services sued for were the defendant’s goods; while the defendant claims that it was only mortgagee of the goods, and that plaintiff was in possession as owner, under the oral agreement already stated. Plaintiff ’ s right to recover wages depends upon whether he was caring for and selling the goods for himself or for the defendant. That controversy between these parties was directly in issue, and specifically passed upon by the district court of Pottawattamie county. That court found that there was an oral agreement between the parties that the goods at Marquette should be removed to Missouri Valley; that Sketchley was to remain in possession of the goods, and sell the same, and apply the proceeds upon the mortgage indebtedness; that Smith & Co. were .to furnish additional goods, which, under the mortgage and agreement, would be included in the lien of the mortgage; that they did furnish additional goods; and — 549 — that the property on which Smith & Co. were entitled to a foreclosure of their chattel mortgage was the same taken by them under a delivery bond in this suit; and decreed Smith & Co. a lien upon all of said goods. Appellant asked instructions to the effect that, under this adjudication, the jury should find for the defendant, but the instructions were refused. The court instructed the jury “that in so far as the plaintiff in this action seeks to recover for the care of or sale of the goods which were covered by the Marquette mortgage, or the remnants of the same which were placed in the store at Missouri Yalley, Iowa; I say, in so far as the claim seeks to recover for work and labor in reference to these goods, —it is adjudicated that nothing can be allowed plaintiff herein on account of any work or labor done in the way of caring for or selling the remnant of the goods brought from Nebraska, which goods were covered by what is known as the ‘ Marquette mortgage ? ’ In reference to the claim as presented by the plaintiff for the care of and sale of goods other than those which were covered by the Marquette mortgage and shipped from Nebraska to Missouri Yalley, the claim is not adjudicated. It will be your duty to ascertain from the evidence whether, as to this portion of the claim, anything is due the plaintiff.” The district court of Pottawattamie county held that, under the provisions of the mortgage, it extended to “all future additions to be made to said stock;” that, under the oral agreement, the goods added to the stock at Missouri Yalley from time to time were advances, and secured by the mortgage; while in this case the court instructed that the additions to the stock made at Missouri Yalley were not covered by the mortgage. We are not called upon to say which court is right, but think it very clear that thq question as to the relation of thesé parties to the stock of goods was fully adjudicated upon the issues joined between them in the district court of Pottawattamie county; that plaintiff herein had no claim for recovery, except upon a readj udication of that •question; and that the court should have instructed the jury to find for the defendant. The judgment of the district court is Reversed.