Omaha Standard, Inc. v. Nissen

187 N.W.2d 721
CourtSupreme Court of Iowa
DecidedJune 17, 1971
Docket54368
StatusPublished
Cited by9 cases

This text of 187 N.W.2d 721 (Omaha Standard, Inc. v. Nissen) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Omaha Standard, Inc. v. Nissen, 187 N.W.2d 721 (iowa 1971).

Opinion

MASON, Justice.

This is a replevin action instituted by Omaha Standard, Inc. for the recovery of a truck body and hoist and accessories installed upon a 1962 Ford truck which was brought to plaintiff’s place of business by defendant Milo Nissen November 7, 1968. Plaintiff is an Iowa corporation with its principal place of business at Council Bluffs. Milo Nissen is the father of defendant Gary Nissen. The property involved is described as a 16 foot by 94 inch by 64 inch fold-down vented wood, Tread Plate Floor with grain gate truck body and Heil hoist with other accessories.

It is undisputed that Milo Nissen ordered the items described and agreed to pay plaintiff $2933.31 for the installation. At the time the order was placed the Ford truck was equipped with a smaller body and hoist. This equipment was taken by plaintiff on a trade-in basis allowing an agreed credit of $717.82. Milo Nissen made an additional down payment of $375 in cash leaving an unpaid balance of $1840.49. Plaintiff extended credit to Milo Nissen on this balance for 90 days with interest.

When the truck with the new equipment installed was delivered November 18, 1968 to Milo Nissen he furnished a promissory note form which he executed in favor of plaintiff payable February 18, 1969 as evidence of the unpaid balance. Plaintiff sent Milo Nissen a demand letter by certified mail March 13, 1969 after he had failed to make any payments on the note.

April 4 the present law action was filed. May 19 plaintiff amended its petition alleging it had reasonable grounds to believe Gary Nissen claimed some right, title or interest to the property involved which plaintiff asserted was inferior to its title and interest.

Milo Nissen and Gary Nissen appeared by separate attorneys and filed separate answers. None of the other defendants named in the caption of this action appeared or filed answers and were held to be in default.

In answer defendants denied generally the allegations of plaintiff’s petition. Gary Nissen in separate division of his answer alleged The title to the truclTRoxJThe hoist and accessories installed by plaintiff became an integral part of the truck and under the doctrine of accession became his property! In addition to this affirmative defense Gary Nissen defends on the grounds he is the owner of the truck and he is not responsible for his father’s debts and plaintiff cannot claim a lien on the truck without a notation thereto on the Icertificate of title.

Trial was had to the court. Milo Nissen offered no defense. In support of his allegation of ownership Gary Nissen offered in evidence the certificate of title on the Ford truck showing him to be the owner and that he had received title August 5, 1968 from Nissen & Nissen, a partnership of Audubon composed of him and his father.

The court entered judgment decreeing plaintiff to be entitled to immediate possession of the equipment for which the writ was asked and granting plaintiff authority *723 to remove the same, take possession and hold or sell it at a public or private sale and apply the proceeds received on Milo Nissen’s note. Costs were taxed against Milo Nissen and Gary Nissen.

In arriving at this judgment the court concluded the real controversy in the case was whether Gary Nissen’s claim that the property placed on the truck by plaintiff became an integral part of the equipment under the doctrine of accession constituted a defense. The court was of the opinion plaintiff had offered ample and sufficient evidence of its right to replevin the equipment if the doctrine did not apply.

After reviewing the evidence and the law the court determined the doctrine of accession should not apply_ag_it found the items described were removable. without damage to the truck.

"The court further concluded plaintiff had reserved title to the truck body, the hoist and accessories until the promissory < note was fully paid. In as much as the '■note was not paid, plaintiff was entitled to ¡ replevin the items.

Only Gary Nissen appeals.

In a law action tried to the court as here, our review is not de novo but only on errors assigned. Under this limited extent of review the findings of fact by the trial court have the effect of a special verdict and are equivalent to a jury verdict. If supported by substantial evidence and justified as a matter of law, the judgment will not be disturbed on appeal. Rule 344(f) (1), Rules of Civil Procedure. Stated in other words, in a law action tried to the court its findings of fact having adequate evidentiary support shall not be set aside unless induced by an erroneous view of law. It follows, the rule does not preclude inquiry into the question whether, conceding the truth of a finding of fact, the trial court applied erroneous rules of law which materially affect the decision. Alsco Iowa, Inc. v. Jackson, 254 Iowa 837, 840, 118 N.W.2d 565, 567; France v. Ben-ter, 256 Iowa 534, 536, 128 N.W.2d 268, 270. We may also interfere when such findings are undisputed or no conflicting inferences may be drawn from them. Beneficial Finance Company of Waterloo v. Lamos, 179 N.W.2d 573, 578 (Iowa 1970); Henschel v. Hawkeye-Security Insurance Company, 178 N.W.2d 409, 415 (Iowa 1970).

I. In one assignment Nissen maintains the court erred in holding he did not acquire title under the doctrine of accession to the equipment installed by plaintiff pursuant to a contract with his father.

We point out the certificate of title at the time of the installation indicates Gary Nissen as the owner of the Ford truck and the promissory note furnished by Milo Nis-sen provided in part:

“ * * * it is further agreed that title and ownership of the certain personal property described as follows: 16-foot fold-down body and 1721F Heil Hoist and accessories listed on Invoice #4621, dated 11/18/68 for which this promise to pay is made and given shall be and remain in said owners, the Seller, until the full purchase price is paid * *

There was no notation on the certificate o ftitle as to* this agreementnor was the ti-tleTeteñtíon instrument recorded.

As stated, the court concluded the doc-triñe of accession did not apply) This is basecfon its finding, “the only evidence introduced in the trial of this cause relative to the removability of the truck box and hoist and accessories was introduced by the witnesses of the plaintiff. No testimony in this respect was introduced by the defendants or any of them. It is the testimony of the plaintiff’s witnesses that the truck bo~)r~arld~~the"íioist can be easityTemoved without damage to the frame or the re-maIñgéF~6F"the truck and that the stretch in the truck frame can be removed so that the frame will be returned to its original size prior to the work performed and that the two tool boxes, the one TojBing step, *724

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Bluebook (online)
187 N.W.2d 721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/omaha-standard-inc-v-nissen-iowa-1971.