Burrows v. Frank
Burrows v. Frank
Opinion of the Court
The original petition contains two counts. The first states that plaintiff applied to defendants to negotiate a loan for him, which they did, and exacted or received $49.50 more interest than was due, and judgment is asked therefor. The second count states that a large part of the loan so obtained was payable to Mrs. Coleman, and that about the time the same became due the plaintiff applied to the defendants, “ who were the agents of said Eliza R. Coleman, and through whom she collected the interest as the same accrued on said loan,” for an extension thereof at a lower rate of interest; that, in truth and in fact, Mrs. Coleman granted such extension at a reduced rate of interest, but that defendants informed the plaintiff that no extension could be granted at a less rate of interest, and thereafter they paid the rate of interest provided in the contract; and the plaintiff seeks to recover the difference between the two rates. A motion was filed for a more specific statement, to which the plaintiff submitted in part, and filed what is called an “amended
I. The appellants maintain that the petitions must be regarded as one pleading, and construid accordingly. Code, § 2692; Montgomery v. Schockey, 37 Iowa, 107; Cooley v. Brown, 35 Iowa, 475; Kostendader v. Pierce, 37 Iowa, 645.; This, for the purpose of the case,, will be conceded. Counsel for the defendants contend that the averments in the second
The petition and amended petition each contain two counts, and the plaintiff therein seeks to recover on two causes of action. Substantially, each count contains a statement of a cause of action uj>on which the plaintiff is entitled to recover, unless the objection under consideration is well taken. The two causes of action are differently stated in each count which has reference thereto. In the first count in the petition it is simply stated that the plaintiff applied to the defendants to procure the loan, but it does not state in terms whether the defendants acted as the agents of Mrs. Coleman or of the defendants. In the first count of the amended petition, it is stated that the defendants, in obtaining the loan, acted as the agents of the plaintiff. It seems to us that these two counts should and must be regarded as stating the same cause of action in a different manner.
Now, as to the second counts. In the original petition it is stated that the defendants were acting as the agents of Mrs. Coleman; but the second count in the amended petition does not contain this or any similar averments. On the contrary, we think the facts stated in such count show that the defendants were acting as the agents of the plaintiff. . But, if wrong in this, we are sure the count in this respect must be regarded as sufficient after .verdict. The evidence is not before us, and the finding of the court has the force and effect of a verdict. The second counts in the petition and amended petition are not inconsistent with each other, and they should be construed as each stating the same cause of action in a different manner; and under the second count of the amended petition the plaintiff’ was entitled to all the relief he obtained.
Affirmed.
Reference
- Status
- Published