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M. DAVIS, Appellant, vs. E. R. LUCAS, County Treasurer,

Appellee.

Filed October 28, 1879.

Koons v. Lucas, 3 N. W. REP. 84 (Iowa 704) followed.—[ED.

Appeal from Clinton circuit court.

N. Corning, for appellant.

E. S. Bailey and C. W. Chase, for appellee.

DAY, J. This case involves the same questions as those determined in Koons v. Lucas, supra. Following that case the judgment of the court below in this case is affirmed.

WHITING, MCKENNA & Co., Appellees, vs. R. T. ROOT,

Appellant.

JOHN V. FARWELL & Co., Appellees, vs. R. T. ROOT,

Appellant.

HURST, SWIGGEAT & Cc., Appellees, vs. R. T. ROOT,

Appellant.

Filed October 28, 1879.

Referee's findings of fact held sufficient to support his conclusions of law. Contract involved in tl is case construed and held to bind defendant to pay the debts of plaintiff. Where equity has taken cognizance of a case, it will grant relief, though a remedy might have been had in an action at law. Where the decision of the court below is correct, it will not be reversed because an unsound reason is given therefor.-[Ed.

Appeals from Clarke circuit court.

These actions were commenced at law, but upon the filing of amended petitions were transferred to the chancery side of the court. The causes were sent to a referee, and judgments for plaintiff rendered upon his report. Defendant appeals. The facts appear in the opinion.

J. C. Power, Henry Stivers and W. M. Wilson, for appellant. Stuart Bros., for appellees.

BECK, C. J. The cases were presented together upon substantially the same abstracts and arguments. The petition of plaintiffs in the first case alleges that Mintonye & Lee executed to them two promissory notes, each for the sum of $760, for goods to supply a store which they were keeping. Mintonye & Lee owned most of the capital invested in the business, and a valuable store-house and the lot upon which it was situated, which were occupied by the firm. They were

largely indebted, and desirous of making such a disposition of their property as would secure the payment of their debts. In pursuance of this purpose Mintonye sold the stock of goods owned by the firm, and the store-house and lot to defendant, and entered into a written contract with him, which will hereafter appear. The petition recites at great length the circumstances under which the contract was executed, and charges that the defendant procured the execution of the instrument on the part of Mintonye by fraud and misrepresentation, and by putting upon it an interpretation in accord with the agreement of the parties. It also alleges that a large part of the agreement of the parties was omitted from instrument by defendant, who wrote it for fraudulent purposes, and that it was the intention of the parties that defendant should become bound to pay the debts of Mintonye & Lee, contracted in the course of their mercantile business. It is not necessary to refer more fully to the allegations of facts contained in the petition. Plaintiffs claim that under the contract for the purchase of the property defendant became bound to pay their claim against the firm. The answer of defendant put in issue the allegations of the petition.

The referee made report of his findings of fact and law in the case first named, which we present entire, as it is found in the abstract, for the reason that it fully discloses the facts of the case. We understand a like report was made in each of the other cases. It is as follows:

"From the evidence in this case I find the following facts: "First. In the month of March, 1876, two of the defendants, H. E. Mintonye and George Lee, were selling goods in Osceola, Iowa. They occupied a store-room in a brick building on the east side of the public square in Osceola, Iowa. Lee had all his capital invested in the business, and Mintonye had equal capital invested. Mintonye owned the building in which the store was situated-a three story brick house, with cellar underneath. The lower story and cellar were occupied as the store-room. The second floor contained offices, and the third floor was used as a public hall. The value of the building and ground was $9,000.

"Second. R. T. Root, the other defendant, was at that time a citizen of Burlington, Iowa, engaged in the publication of a book entitled "Foot-Prints of Time." His business seems also to have embraced the sale of territory in the United States for the sale of the above mentioned book to agents, who were authorized to sell the books within the territory-Root fur

nishing the book to such agents, as ordered by them, at a stipulated price.

"Third. At this time, viz., the month of March, 1876, the firm of Mintonye & Lee seems to have been in embarassed circumstances, and heavily burdened with debt. Mintonye was in poor health, and seemed to anticipate an early death, and was extremely anxious to protect his credit and preserve his creditors from loss.

"Fourth. Lee, the other defendant, had been to Mt. Pleasant, seeking to sell the stock of goods for the payment of the creditors. Such a conversation was had by Lee with one Gamage, of Mt. Pleasant, as led Mintonye, although feeble in health, early in March to repair to Mt. Pleasant, in the hope of selling out to Gamage.

"Fifth. Mintonye went to Gamage's house, in Mt. Pleasant, and for a time there was a prospect of a sale to Gamage. "Sixth. On the eighth of March, 1876, Mintonye and Gamage started to Burlington, Gamage desiring to obtain a loan from a friend in Burlington, to enable him to consummate the trade with Mintonye & Lee.

"Seventh. At New London, on their way to Burlington, they met J. S. Wertz, who had previously had business relations with R. T. Root, who returned to Burlington with them. Failing to obtain money from Gamage's friend, the three, Gamage, Wertz and Mintonye, went to Root's office, to see if he could aid them.

"Eighth. While there Mintonye and Root made a contract, which was reduced to writing, and was in words and figures following, to-wit:

"BURLINGTON, Iowa, March 8, 1878. "Contract between R. T. Root, of Burlington, Iowa, and H. E. Mintonye, of Osceola, Iowa.

"Witnesseth: Said Mintonye agrees to make said Root a warranty deed, clear from all encumbrances, (except a claim of $3,000 held by Julia Clark, of Mass.) of property in Osceola, Iowa, and described as follows: Part of lot 3, including hall in block 13, in the town of Osceola, Clarke county, Iowa, and also transfers and conveys a general stock of goods in a building on the lot named, amounting approximately to ten thousand ($10,000) dollars, and including in this notes and accounts due the said Mintonye on goods got from the said store, subject, however, to claims against said stock amounting to about eight thousand, ($8,000;) and said goods to be invoiced at present value, and if the claims amount to

more than the goods invoice for, said Mintonye is to pay off the same, and if the goods amount to more than the claims, the said Root shall pay the said Mintonye the excess, as follows:

"To give, for each thousand dollars, a territory of fifteen thousand inhabitants, to sell a certain book hereinafter named; and each fractional part of a thousand of excess of the claims aforesaid shall be pro rata; and the said Root on his part agrees to give said Mintonye the exclusive right to sell the Foot-Prints of Time, by Bancroft, in a population of two hundred and seventy-five thousand (275,000) inhabitants, which said Mintonye may select, in any place he chooses, by taking a county in a place, and if any territory not otherwise arranged for; and the said Root agrees that, if the said Mintonye does not want to take territory for the excess of goods above the claims, he need not do so, but can retain the same from the goods. "Witness:

"J. S. WERTZ.

R. T. ROOT,
H. E. MINTONYE.

"Ninth. The contract, after being reduced to writing, was read over to Mintonye, and he expressed himself satisfied and signed the same, and was present when Wertz signed the same as witness, except that Mintonye called Root's attention to the fact that the contract was silent as to Root's agreement that he would advance one thousand and three thousand dollars in thirty days. Root replied that was all right; he would carry out the contract in good faith.

"Tenth. The next day after the contract was made, by agreement Wertz and Gamage proceeded with Mintonye to Osceola, and took an invoice of the goods with the following result:

"Goods, furniture and fixtures,

"Notes collectible,

"Accounts,

"Town orders,

"Total,

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$10,990 97

180 97 2,248 92

43 43

13,464 29

11,434 54

"Amongst the claims listed, and making up the amount above set forth, is the claim of Whiting, McKenna & Co., plaintiffs in the case under consideration.

"Eleventh. Wertz took charge of the goods as Root's agent, and proceeded to sell the goods. He paid some bills and bought some goods, until, on the ninth day of June, A. D.

1876, in the case of Whiting, McKenna & Co., and on the sixteenth day of June, 1876, in the case of John V. Farwell & Co., attachments were sued out, and an approved bond to perform judgment given by Root, one of the defendants, and J. Scarff, George Sweeney, D. W. Hixson and Warren Dee, the sureties on each bond, and the goods released.

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"Thirteenth. There is due from Mintonye & Lee to Whiting, McKenna & Co. the sum of $761.40, with 6 per cent. interest from February 4, 1876, less $161.40 paid February 7, 1876; and $200 paid February 24, 1876; and $760, with 6 per cent. interest from March 4, 1876; and $760, with 6 per cent. interest, from April 4, 1876; and $760, with 6 per cent. interest, from May 4, 1876; and current exchange on Boston or New York.

"Fourteenth. I find no evidence of fraud or misrepresentation in the trade or contract on the part of either of the parties to said contract. It was written in the words intended and agreed upon between the parties.

"Fifteenth. No one of the claims against Mintonye & Lee were liens upon the goods; that is to say, there were no mortgages, attachments, or liens of any kind upon the goods at the time of the sale.

"Sixteenth. Root has paid certain claims held by creditors of Mintonye & Lee, but there is no evidence that he has ever paid anything upon the claims of the plaintiffs in this case.

"From these facts I conclude that the purchase of the goods subject to the claims against them-they not being liens, and the stipulations that the goods should be invoiced at their present value, and if the claims amount to more than the goods then Mintonye is to pay off the same, and if the goods amount to more than the claims then Root is to pay Mintonye the excess-by fair construction makes a promise on the part of Root to pay all the claims if the goods amount in value by invoice to enough; if not, to pay the invoice. The acts of the parties also sustain this implication. The words of the contract, though ambiguous and not clearly expressed, do imply such a promise. The idea of a trust is excluded by the stipulation that, if the goods do not invoice for enough to pay the debts, Mintonye is to pay the samethese words being a limitation of the liability of Root to pay the claims. Also the absolute sale of the realty by warranty deed excludes the idea of a trust.

"Second. A promise to one for the benefit of another gives

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