Howard v. Pratt

Waterman, J. [535] It is difficult, if not impossible, to harmonize the claims made in the petition. While suing on .these contracts, the court is asked to annul them for fraud. (So also with the decree rendered by the trial court. While it annuls the contracts for fraud, it seems they were considered .as valid by the court for the purpose of making an accounting. Taking the pleadings-with the evidence, and we are of opinion that no real complaint is presented as to the making of the contracts, but only as to a failure to carry them out. Plaintiff admits that he knowingly and deliberately entered into the agreement of •co-partnership first made. Both parties unite upon its terms. All the complaint now made is that defendant did not do as he agreed. We hardly think „ the testimony justifies a finding that defendant failed in his obligation; but, however this may be, on April 28, 1896, there was a written agreement of dissolution, signed by both parties, and containing full terms of settlement. There is no charge in the petition of any fraud or mistake in the making of this instrument. On the contrary, plaintiff sets it up, and claims something for its alleged breach. Behind this agreement we are not warranted in going. In the agreement of dissolution it was provided that plaintiff should take a one-half interest in the Jolley 'store, and defendant should furnish to that store [536] merchandise of the cash value of one thousand eight hundred dollars. We now inquire whether defendant performed' his part of this- agreement. The evidence as 'to the value of" the goods furnished is in direct conflict. But we think the contention is settled in'defendant’s favor by plaintiff’s acts. The partnership was dissolved on March 9, 1896. The written agreement of dissolution was made on April 28, 1896, and at this time plaintiff admits he knew the goods were not worth the' invoice price. On May 1st following, plaintiff' receipted to defendant for one thousand eight hundred dollars worth of goods “in full settlement of contract to date of Jolley account and contract.” There is no direct charge of' fraud or mistake in' procuring this receipt. It is said, however, as we 'have already remarked, that plaintiff was not familiar with mercantile business, and had no knowledge of’ the value of goods, and left the matter wholly to defendant, confiding in his'integrity. If we accept this as a charge of' fraud, it does not avail plaintiff; for he is shown to. have had prior knowledge of the facts, and furthermore,. on June 16, 1896, when the written agreement of April 28th was apparently delivered,. the following memorandum was attached thereto, above-the signatures of plaintiff and Strahl: “I don’t think. the goods put in by you are worth one' thousand eight hundred dollars at cash price now, but I sign this to-keep the peace.” If there rvas a shortage, and, with full, knowledge thereof, plaintiff signed the agreement of settlement, or delivered it to defendant, it is too late for him now - to have it set aside, or make claim for any deficiency. Moffit v. Cressler, 8 Iowa, 122-125. 3 II. A motion is made to dismiss the appeal and affirm • the judgment because “no true abstract has been filed by appellant within thirty days of the second term of this-court” after appeal taken. The ground of this motion Seems to be that the abstract is not “a transcript,” but an abbreviation, of the record. This can hardly [537] be said to be a fault,- under our rules. Brevity in an abstract is not only a commendable quality, so long as all material" matters are presented, but it is expressly enjoined. Buies 21, 22. Appellee filed an additional abstract,,and made nonspecific denial of tlie correctness of the one now assailed. The motion is overruled. The trial co-urt should have dismissed the petition with, costs. — Beversed. Granger, C. J., not sitting.