Iowa County v. Huston

39 Iowa 323

• Court: Supreme Court of Iowa
• Decided: September 25, 1874
• Status: Published

Opinion

Day, J.

-I. The allegation that defendant was the self-constituted agent of plaintiff, appears merely pai'enthetically in the petition, as descriptive of the capacity in which defendant acted. A. careful examination of the petition discloses that the real ground of complaint is, not that defendant assumed to act as the self-constituted agent of plaintiff, but that, being such agent, he came in possession of $1000.00 of the funds of plaintiff, to have, hold and expend the same, in trust and for the use and benefit of plaintiff, in repairing and rebuilding the Rosta bridge, and that the said sum of $1000.00 still remains in the possession of defendant, unexpended and unaccounted for, and that the bridge has neither been rebuilt nor repaired.' It is the alleged failure of defendant to expend or to account for the money, as required by the terms of what is denominated his self-constituted agency that is the ground of offense. This allegation of the petition, is denied in the answer, and thus is presented the real and sole issue, in the case. The question to which' so much time has been devoted in the argument, and respecting which the court submitted several special findings, as to whether the defendant was duly and legally appointed an agent for the erection of the bridge, is simply a collateral one. The real point made in the pleadings is, not that defendant was not entitled to draw the $1000.00, but that, having drawn it, he did not expend it in the erection of a bridge. This view renders the case very simple.

i. agent: iiatrust The evidence shows, and the court found specifically, that defendant entered into a written contract with John-Hall for rebuilding said bridge, for the sum of $1000.00, and that he paid him thereon the sum of $800.00. The allegation of the petition that the sum of $1000.00 still remains in the possession of defendant, unexpended and unaccounted for, is therefore not established, but on the contrary is clearly disproved, and it was error for the court to render judgment against defendant for $1000.00 with interest from 'the time the money came into defendant’s hands.

2 pleading: proof.6 II. Most of the findings of the court as to the facts relate to certain omissions of defendant, constituting, it is claimed, negligence in the performance of the duty undertaken. And most of the legal conclusions hold that defendant is liable because of such negligence. But these findings of fact and conclusions of law are entirely outside of any issue tendered in the petition. And many of the findings of fact have no support in the evidence. The view of appellee’s counsel, and it seems also to have been the view of the court, is,’ that inasmuch as the defendant' alleges that all things were done in the best of faith, and in the exercise of reasonable and proper care, and all the allegations of the answer are denied in the replication, that the burden of proving the exercise of reasonable and proper care is upon the defendant, and that it is competent to find that he omitted everything, which he has not affirmatively proved he did. But this view, in so far as the plaintiff’s right of recovery is based upon the failure of proof on the part of defendant, ignores the principle that a plaintiff must recover upon the allegations of his petition. If the material allegations of the petition are neither-proved nor admitted, a plaintiff cannot recover because of the failure of defendant to prove the allegation of his answer. Without reviewing seriatim the numerous findings of fact and conclusions of law, we are clear that under the evidence, the issue, and the findings of fact submitted which are pertinent to the issue, the judgment of the court is wrong, and that it should be

Reversed.