Stewart v. Puck Soap Co.

135 N.W. 70, 154 Iowa 411

• Court: Supreme Court of Iowa
• Decided: March 13, 1912
• Status: Published

Opinion

McClain, C. J.

From the allegations of the petition it appears: That on November 5, 1904, the defendant entered into a written obligation to pay to J. F. Mason a royalty of 2% cents per box on soap _ manufactured in accordance with a secret process communicated to it by said Mason, payment to be made monthly on soap manufactured under such process. That on November 19, 1904, the defendant represented to one E. R. Mason, then acting and known to defendant to be acting for and representing the plaintiff, that it was then engaged in the _ manufacture of soap in accordance with such process and expected to continue to do so, and that it had ample facilities' for the manufacture and marketing of such soap “by which it could and would continue to produce the same profitably in such quantities as to produce in royalties for the said J. F. Mason within a short time a large amount of money, certainly exceeding the sum of $800,” and that a sum pf money “at least equal to that amount in the aggregate would accrue and become due and payable to said J. F. Mason upon such contract within eighteen months from said date.” That for the purpose of securing payment for any loan plaintiff might make to said T. F. Mason, or money which she might advance to him on an assignment pro tanto of such contract not exceeding $800, E. R. Mason, on behalf of plaintiff, presented to defendant an order in words and figures as follows: “The Puck Soap Go., Des Moines, Iowa — Dear Sirs: Please pay to E. R. Mason the sum of eight hundred dollars ($800.00) on account of the contract entered into between you and J. F. Mason, payments on this order to be made monthly on or before the tenth day of each month for all soap manufactured during the preceding month at the rate of 2% cents per box. E. B. Mason;” which order was on the same day indorsed by the defendant as follows: “The foregoing order is hereby accepted this 19th day of November, 1904. The Puck Soap Go., B. P. Bolton, Prest.” That the order bearing this indorsement was thereupon indorsed payable to plaintiff by E. B. Mason. That thereupon defendant took credit to the amount of the order on its contract with J. F. Mason and charged the amount to him as a payment thereon, indorsing J. F. Mason’s receipt for that amount on the back.of the contract. That thereafter on November 28, 1904, defendant indorsed on the assignment an acknowledgment of notice thereof. That plaintiff, in reliance on the order, indorsement, assignment, and notice, paid to J. F. Mason $800, of which various sums to the total amount of $62.23 were paid to plaintiff by defendant between December 13, 1904, and April 5, 1906; no other payments on said order having been made by defendant to plaintiff. And that defendant knew at the time of its acceptance of the order and the making of said representations that such representations were to be communicated to the plaintiff, and that plaintiff would probably rely thereon for the purpose of making advancements or payment of money to J. F. Mason. The facts alleged are relied upon as constituting an obligation on the part of defendant to pay to plaintiff .the sum of $800 advanced by her to J. F. Mason and as estopping defendant from denying this liability to the amount of such assignment with interest. The grounds of the demurrer to this petition were that the cause of action accrued November 28, 1904, and was barred when the action was instituted, October 27, 1910; that the undertaking of defendant under the allegations of the petition was to pay J. F. Mason’s debt to plaintiff, and therefore is not enforceable because not in writing as required by the statute of frauds; and “that the facts stated in plaintiff’s petition do not entitle plaintiff to recover because the petition fails to allege or show that defendant has ever become liable on any enforceable contract entered into on part of the defendant” and fails to allege any facts or wrongful acts of any kind or nature on the part of said defendant which would make the defendant liable to said J. F. Mason or to the plaintiff herein in tort.

1. Pleadings: demurrer: sufficiency. We think the third ground of demurrer is sufficiently stated (under Code, section 3561), to raise the question whether under the allegations of the petition any cause oi action is pleaded against the defendant, and, as we reach the conclusion that no cause of action was pleaded, we need not discuss the other grounds of demurrer.

2. Oders for payment of money: acceptance: extent of liability. The order on defendant was to pay to E. E. Mason $800 on account of — that is, in accordance with the terms of — the contract between him and defendant. The defendant accepted this order and acknowledged notice of the assigmnent thereof to plaintiff. Defendant thereupon became obligated to make to plaintiff such payments as by the terms of its contract it had agreed to make to J. F. Mason. It is not alleged that defendant has not made all the payments to plaintiff which it was under obligation by its contract to make to J. F. Mason. Knowledge of the fact that plaintiff was advancing to J. F: Mason in reliance on this order the full sum of $800 would not estop defendant from insisting that it had not obligated itself by the acceptance of the order to pay more than the amount which it was bound by its contract to pay to J. F. Mason.

3. False representations: matters of opinion. The representations alleged as to the sums of money which would become due to J. F. Mason under the contract were representations in the nature of an expression option only as to what would become due the future and do not constitute, therefore, either an estoppel, or a fraudulent representation on which plaintiff is entitled to recover as in tort. This proposition seems to us too clear to require citation of authorities.

The judgment is affirmed.