Goring v. Fitzgerald

Waterman, J. 1 — Appellee object® to a consideration of the case here because he says, first, that the evidence is not properly identified. We see no merit in this objection. Next lie claims that the judge’s certificate does not state that all the evidence offered is in the record. This might be admitted without its affording any basis for the claim that the appeal shall not be heard on its merits. We are asked to pass on the court’s action in taking the case from the jury. In doing this, we .are called upon to consider only the evidence that was received, and this is properly before us. 2 I. Plaintiff moved to strike from the files defendant’s amendment to his answer, in which the statute of limitations is set -up-. This motion was overr uled, and this .action of the court is made the basis of the first assignment of error. Plaintiff claims that this objection should have been taken by demurrer. But plaintiff insists that his petition, as amended, not only does not show upon its face that his-claim is barred by limitation, but on the contrary, discloses that such is -not the case. According to his own contention, this defense could be made only by answer. 3 II. The next assignment of -error relates to the court’s action in striking out of the amendment to the petition the facts which it is alleged amounted to a concealment of the fraud practiced upon plaintiff. This error, if, indeed, if was an error, was without prejudice. While the specific facts charged were stricken out, there was left in the petition, as amended, the general allegation that the facts [511] were fraudulently concealed from plaintiff, and the truth not discovered by him until in the year 1894. 4 III. The next assignment of error presents the gist of the controversy. Was there anything in plaintiff’s case for a jury to pass upon? The fraud, if any, consisted in the statements and representations made in 1889 to induce plaintiff to execute the first note. Plaintiff introduced evidence tending to prove the representations charged, and .also their falsity. It was shown that defendant did not own, and had no authority to collect, the judgment of the Hawkey e Insurance Company; and there was some evidence to the effect that he did not own the bank judgment. It was established beyond dispute that plaintiff has had to pay the first of these judgments to another party since the giving of the note to defendant. Defendant’s first claim is that plaintiff has been in nowise injured; that the amount of the judgment which he has paid has been credited on the note, and that it does not appear that he has ever been called upon to pay the other judgment. This reasoning does not strike us as satisfactory. If defendant falsely represented himself to be the owner of the bank judgment, and thus secured its payment to him in money or property, we think he may well be called upon by plaintiff to refund, without waiting until the latter is compelled to pay the rightful owner. If the judgment creditor saw fit not to enforce his claim, it would not afford .any ground for defendant keeping what he had wrongfully obtained. 5 IV. Next it is said in justification of the trial court’s action that plaintiff’s claim was barred by limitation. But we think, under the pleadings, this was peculiarly a question for the jury. The fact that plaintiff looked at the judgment record, and saw that no. assignment of either judgment to defendant had ever been filed, while a circumstance to be considered, was by no means conclusive. Defendant might [512] well have been the owner of these judgments without there being any recorded assignment. 6 V. Next it is said in behalf of defendant that there is no evidence that he knew the representations made to be false. The statement of this proposition refutes it. Scienter may be established by circumstances. If a man (a lawyer, especially) says that he owns a judgment to which he has no title whatever, no other proof of his guilty knowledge need be given in the first instance. As having some bearing on this branch of the case, we cite Melick v. Bank, 52 Iowa, 91. 7 VI. Again, it is urged that plaintiff should have returned, or offered to return, certain securities which he received from defendant in the course of their transactions^ and that, not having done so, this action cannot be maintained. This action is not to rescind the contract, but to. recover damages. The rule sought to- be invoked does- not apply here. The principles governing an action of this character are the same as in case of a breach of warranty. Joy v. Bitzer, 77 Iowa, 73. VII. Finally, it is said that the action of the lower court was authorized because plaintiff established no sufficient basis for damages. It is enough to say on. this point that if defendant, without any right, obtained from plaintiff money or property in payment of the bank judgment, this of itself would afford a claim for substantial damages. Our conclusion is that the case should have gone to the jury. The judgment below is therefore reversed.