Gagle v. Besser

Ladd, J.

1. Fraud: evidence: submission of issues. The action is not based on contract, as counsel for appellees assume in argument, but sounds in tort. The damages for which judgment is prayed are not alleged to have been in consequence of a breach of contract, but of deceit practiced in inducing . plaintiffs to enter into the contract. This consisted in representing that a depression or basis of considerable area on the premises had been properly drained, and that the furnace in the house was in good condition, and the evidence tended to prove that defendant A. P. Besser so knew, and that plaintiff F. M. Gagle relied thereon, and was induced thereby to purchase the farm when but for such representations, he would not have done so, and was damaged thereby. The evidence also disclosed that after the contract by which Gagle purchased the land had been entered into, Besser removed roots of some climbing roses and took away a screen belonging to the grate. A case against A. P. Besser having been made for the jury, the court must have directed a verdict for him on some other ground.

The defendant Lizzie Besser was not shown to have been concerned in any manner in the alleged deceit, or in carrying away the roses or screen, and the verdict was rightly directed in her favor, but this did not obviate the submission of the issues as to A. P. Besser. Young v. Gormley, 119 Iowa, 547; Boswell v. Gates, 56 Iowa, 143.

2. Same: action: misjoinder of parties plaintiff. II. The contract, dated October 7, 1909, was between P. M. Gagle and Besser, and provided that the former should have title to and possession of the land March 1, 1910, upon payment of the balance of the purchase price. One thousand dollars was paid down by Gagle. The evidence failed to show that Mrs. Gagle participated in the negotiations, or was concerned therein, or that Gagle acted for her therein. The deed was executed to her by Besser and wife, but how this came to be done, or whether she paid the remainder of the consideration, is not disclosed. She then was not a proper party to the suit, and, as contended, there was a misjoinder of parties plaintiff. Had there also been a misjoinder of causes of action, the order directing the verdict must have been sustained. Bort v. Yaw, 46 Iowa, 323; Mendenhall v. Wilson, 54 Iowa, 589; Rhoads v. Both, 14 Iowa, 575; Mervin v. Sherman, 9 Iowa, 331. This is for the reason that separate judgments in favor of different parties on distinct causes of action may not be entered in a single suit. There was no misjoinder of causes of action, however, and these cases are not in point. Nor was there a defect of parties, as appellee assumes, and therefore the point might not be raised by demurrer or answer. District Township of White Oak v. District Township of Oskaloosa, 44 Iowa, 512; Beckwith v. Dargets, 18 Iowa, 303; Dolan v. Hubinger, 109 Iowa, 408.

3. Defect of parties : misjoinder: remedy. A defect of parties is where one or more who should have joined as plaintiff or defendant in order to fully adjudicate the issues raised has been omitted. A misjoinder of parties is where one or more who are not concerned in the action are made parties, and it is well settled that objection thereto can only be interposed by motion to strike the names of those not interested. Miller v. Railway, 63 Iowa, 680; Flynn v. Railway, 63 Iowa, 490; Lull v. Anamosa National Bank, 110 Iowa, 537.

If the real party in interest is willing to share his cause of action with another not concerned therein, this ought not to defeat recovery, and the defendant by interposing no objection by moving to eliminate such other from the suit waives all objection to including Mm as a party to tbe action. Pleading the misjoinder in the answer did not obviate this result. Defendant was entitled to have the name of Mrs. Gagle as party plaintiff stricken from the petition, but not to a verdict in his favor because of her being improperly joined with F. M. Gagle as party plaintiff.

That through some arrangement not disclosed the land was finally conveyed to Mrs. Gagle did not defeat any cause of action F. M. Gagle might have had by reason of being induced to enter into the contract of purchase. The issues should have gone to the jury. — Reversed.

"Weaver, C. J., and Evans and Preston, JJ., concur.