Jandt v. Potthast

Kinne, C. J. [226] 2 3 [225] I. When Allen, the plaintiff’s agent, sold the goods to the defendant W. H. Potthast, the latter filled out and signed a printed blank statement for the purpose of obtaining credit. The statement was addressed to the plaintiff, and, in part, read: “For the purpose of obtaining credit with your firm for merchandise, * * * I, W. H. Potthast, * * * do make the following full and complete statement of my resources and liabilities.” Then followed a schedule' showing various [226] resources, of oyer five thousand dollars, and no liabilities. On the liability side of the statement appeared the following, among other matter: “For merchandise, — give name and dates when due.” “For borrowed money. When due. Rate of interest. Security.” “Confidential and other debts not included in the above.” “Does the above statement show all your debts and liabilities, of every kind and nature whatsoever?” None of the questions on the liability side of the statement were answered. At the bottom of the statement were found these words: “The above statement, both printed and written, has been carefully read by me, and is a full and correct statement of our financial condition and mercantile connection at this date.” It is. signed by W. IT. Potthast. On the trial, plaintiff attempted to prove certain oral statements made by said defendant as to his liabilities at the time the order for the goods was given, to the effect that said defendant had stated and represented to the witness that he had no liabilities, which said statements-were communicated to plaintiff before the goods were shipped. This evidence was ruled out, on an objection that it must be conclusively presumed that only the written representations were relied upon. This ruling is assigned as error. We are at a loss to understand upon what theory the court made its ruling. The proposed evidence was clearly admissible. It was admissible to show the intent of the defendant; that, after the matter of indebtedness was particularly called to his attention, he still persisted in concealing the fact that he owed his father two thousand dollars. This is a case of alleged false representation, and the evidence was admissible to establish the same, regardless of the written statement. Scroggin v. Wood, 87 Iowa, 502 (54 N. W. Rep. 437), and eases cited. It appeared that the agent selling the goods made a pencil [227] memoranda on the statement to the effect that the defendant “bought the stock in February, and owes nothing on it.” It was shown that such was the oral statement made by the defendant. It was improperly ruled out. It was material to show upon what statements and representations, if any, the plaintiff relied in selling and shipping the goods. If this oral statement of the defendant was not communicated to the plaintiff before the shipment of the goods, as a matter of course, he could not have relied upon the same in making the sale. 4 II. Plaintiff sought to show by the testimony of one Erwin, his credit man, that plaintiff would not have sold and shipped the goods on credit, had he known the defendant’s real financial condition. This evidence was ruled out as incompetent, immaterial, and irrelevant. It should have been admitted. It was material and relevant, for, if plaintiff would have made the sale in any event, he could not thereafter rely upon false representations made by the defendant. It was incumbent upon him to show that he would not have consummated the sale, had he known of defendant’s real condition. It was shown that Erwin had sole charge of the matter of extending credit. He was therefore a competent witness to testify to the matter as to which plaintiff had vested complete control in him. III. It is contended that the judgment is contrary to the evidence and to the law. As for other reasons the judgment below must be reversed, and, in view of another trial, it is better that we do not discuss the evidence. [227] IY. On the application of the defendants, and after judgment had been entered against plaintiff for the value of the goods actually taken under the writ,' the court added the sum of two hundred and seven dollars and eighty-four cents to the judgment. This [228] seems to have been clone on the theory that plaintiff should pay for goods which were not taken on the writ, but had been turned over to plaintiff by the defendant. Plaintiff averred that said goods were voluntarily turned over by defendant to plaintiff. Defendant pleaded that one Rogers, acting as attorney for the plaintiff, obtained them by fraud, and sent them to plaintiff. No evidence was offered to sustain either claim. In some way the plaintiff obtained possession of this two hundred and seven dollars and eighty-four cents worth of goods otherwise than under the writ, and had actual possession of them when the writ was levied. It is very clear that these goods were not involved in this suit. This property was not taken, wrongfully or otherwise, under the writ. Beroud v. Lyons, 85 Iowa, 486 (52 N. W. Rep. 486); Hove v. McHenry, 60 Iowa, 227 (14 N. W. Rep. 301). The court had no jurisdiction over it in this action, and its action in rendering a judgment therefor was error. [228] Y. It is claimed that the court erred in rendering a judgment in favor of the defendants. The claim is well founded. The defendant W. H. Potthast did not claim any judgment in his pleadings, except for costs. It is hardly necessary to cite authorities to the effect that the finding and judgment must follow the pleadings, and that a judgment in replevin cannot be entered in favor of several defendants jointly when some of them have no interest in the property. W. £L. Potthast claimed no interest in this property, nor did he ask for a judgment for its return or its value. Cobbey, Repl., section 1142; Steele v. Matteson, 50 Mich. 313 (15 N. W. Rep. 488). W. H. Potthast not having claimed the property, and not having shown himself entitled to a return of it, a judgment for its value in his favor was erroneous. Wells, Repl., section 491. The [229] defendant H. A. Potthast in his answer claimed the property by virtue of a chattel mortgage upon it. He did not introduce his mortgage in evidence. He did not testify regarding any ownership of the property or claim upon it. In fact, there was no evidence whatever upon which to base a judgment in his favor. VI. Other questions are discussed. As they are not likely to arise upon another trial, we do not pass upon them. Por the reasons heretofore stated the judgment of the district court must be reversed.