Foster v. Trenary

22 N.W. 898, 65 Iowa 620

• Court: Supreme Court of Iowa
• Decided: April 8, 1885
• Status: Published

Opinion

Reed, J.

i assigndeedofDÍ parol torsliow parties?11 °f I. The patent-right in question covers an attachment by which it is claimed that an ordinary stirring plow may be connected with a sulky cultivator in such a manner as that the combination may be used as a sulky plow. Defendant was the owner of the patent, and he sold to plaintiff the right to manufacture, use and vend said attachment in Cherokee county, and gave him a deed of the territory. He also sold and conveyed to the parties named in the second and third counts of the petition the same rights as to. other counties.

The alleged frauds consist in certain statements and representations as to the practicability, utility and value of the device, which it is charged were made by defendant pending the negotiations which resulted in the sales. The trial below was to the court, and there was a finding of the facts. The court found that the alleged representations were made by defendant, and that they were false and fraudulent. It also found, that plaintiff was the owner of the claims for damages which accrued, under the transactions set out in the second and third counts of the petition, to the parties therein named. For the purpose of proving his ownership of said claims, plaintiff offered in evidence certain assignments, which were indorsed on the deeds given by defendant to the parties named in the second and third counts, of the territory sold to them.

The assignment 'which was indorsed on the deed to O. O. Foster is in the following words: “We hereby sell, assign, transfer and set over all our right, title and interest in ánd to the within deed, and to all rights of ours thereunder, to Charles F. Foster. October 3, 1882. O. O. Foster.” The other assignment is in substantially the same words. Defendant objected to the introduction of these assignments in evidence, on the ground that they did not purport to be assignments of the damages resulting to the parties by reason of the alleged frauds, but were assignments merely of the rights and interests acquired by the parties under the deeds. This objection was overruled, and this ruling is assigned as error. The right which the grantees named in the deeds acquired thereunder was the right to manufacture, use and vend the patented device in the territory named therein; and the rights and interests which, by the express terms of the assignments, are transferred to plaintiff are those which accrued to the assignors under the deéds. There was parol evidence, however, which tended to prove that the real intention of the parties was to transfer to plaintiff their claims for damages on account of the alleged frauds of defendant in the sales of the patent-right to them, and that the understanding between them and plaintiff was that the effect of the assignments was to transfer said claims to him. On this showing as to the intention and understanding of the parties to the instruments, we are of opinion that the court properly admitted them in evidence.

It was held by this court in Moore v. Lowrey, 25 Iowa, , that no particular form is necessary to constitute an assignment of a debt, and that such assignment may be verbal or in writing, and if in writing, and the intent and contract of the parties is not fully expressed therein, it may be shown by evidence alivmde. And to the same effect is Conyngham v. Smith, 16 Iowa, 474. Under the rule as laid down in these cases, the parol evidence as to the intention of the parties to the assignments was competent, and the finding of the court, that plaintiff was the owner of the claims set out in the second and third counts of the petition, is abundantly sustained.

2. fraud usentotionsT eutrigiS^" fraudulent devicesm other sales, II. At the time of the negotiation between the parties, defendant had in his possession a plow which was rigged with the patented device, which he exhibited to plaintiff and the other parties, and with which he did some plowing in their presence. This plow, at the time of these exhibitions, worked in a satisfactory manner. Rut the evidence tends to show that, when plaintiff and the other, parties rigged other plows with the attachment, they were unable to do any work with them; One of the difficulties which they encountered in their attempts to make them work was, that the plows could not be kept in the ground; another was that the neck-yoke was thrown up by the weight of the plow in such a manner as toiinterfere with the team. And it was claimed by plaintiff that defendant obviated this latter difficulty by using a heavy iron neck-yoke with the plow which he exhibited at the time of the negotiation, and that he avoided the other trouble by attaching the plow to a cultivator which had been so altered as to specially adapt it to that particular use; and that these facts were concealed by defendant during the negotiation.

Plaintiff offered evidence tending to prove that, at some time before the negotiation, defendant had procured an iron neck-yoke, and that he used said yoke at other exhibitions of the plow, and that he caused certain alterations to be made in the cultivator to which he attached the plow exhibited by him. Defendant objected to all this evidence, on the ground that, as it did not relate to the transactions in question, it was incompetent and immaterial. This objection was overruled. We think the ruling was correct. The special advantage which defendant, in the negotiation with plaintiff and the other parties, claimed for the patented device was, that by means of it an ordinary plow could be attached to any of the sulky cultivators in common use, and by this combination an implement was made which possessed all the advantages of a sulky plow. Now, if he had been compelled to resort to the means alleged for the purpose of making an apparently successful exhibition of the device, this would tend strongly to show that he knew that he was making a false claim for it.

3. —:-: statements' made in interestofvendor in lus presence. III. Evidence was admitted, against defendant’s objection, of certain statements by one ITayward as to the utility and value of the device. These statements were made to Nippert during the negotiation for the sale to him. Ihe omection urged by defendant to this evidence is that it was not proven that Hayward was authorized to bind defendant by any statement he might make. But it was shown that Hayward accompanied defendant to the place where the negotiations with Nippert took place, and that defendant went there for the purpose of attempting to make a sale to Nippert, and that Hayward made the statements in his presence. Under these circumstances, the evidence of the statements was clearly admissible.

We find no error in the record, and the judgment will be

Affirmed.