Scott ex rel. Bolenbaugh v. Granger

3 Iowa 447

• Court: Supreme Court of Iowa
• Decided: December 15, 1856
• Status: Published

Opinion

Wright, C. J,

This' demurrer appears to have misapprehended the nature of the action, as also the parties thereto. It assumes that Bolenbaugh is the plaintiff, and suing' in his own right. He does not claim to be the party to the original contract, or that the same has been assigned to him. But Scptt, who brings the suit, was the party to whom the receipt was given, and with whom the contract to enter was made. And though Bolenbaugh may have an adequate remedy against Scott, that does not relieve defendant from his liability on his contract, nor is it any reason, why Scott may not sue for the use of Bolenbaugh, or any other person that he may name. There is no pretence from the petition, that plaintiff has ever been in possession of the premises, or that he has ever held any title to be questioned or doubted. ■On the contrary, the gravaman of his action is,- that defendant did not enter the land, so as to give him title, and the-consequent possession, or the right thereto. Then' where the necessity for his averring that he had been dispossessed, or that his title had been questioned, when he makes neither of these the ground of his claim for damages ? Nor was it necessary to set out the deed to Bolenbaugh,. nor is its character of any importance in this suit. As between Scott and Bolenbaugh, it may be material, and will measure their rights and liabilities'; but this suit is not brought on any covenants therein contained.. 'This action is between Scott andrdeféndant, and is brought upon a contract to which they were parties, and not upon a contract between Bolenbaugh and defendant, or between Bolenbaugh and Scott. To bring the suit for the use of Bolenbaugh, it was not necessary to assign the receipt, or original contract to him; nor is it material to consider his remedy against Scott, — whether he has been dispossessed, nor whether his title has been questioned. The claim made, is that defendant received Scott’s money, and undertook to enter certain land; that he did not enter the same, but appropriated the money to his own use, by which plaintiff has been damaged. How far his damage may be affected, by the fact that he conveyed the premises to Bolenbaugh, relying upon defendant’s representations that the land had been entered, is a question not now arising. We only determine, that the demurrer was not well taken. Whatever other questions there may be in the case, must remain for disposition, until they shall present themselves in • the further progress of the case. See State, for use, &c., v. Butterworth, 2 Iowa, 158.

Judgment reversed.