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Gingerich v. Protein Blenders, Inc.

Supreme Court of Iowa

March 10, 1959

A. C. GINGERICH, Plaintiff-Appellee,
v.
PROTEIN BLENDERS, INC., and Maplecrest Turkey Farms, Defendants-Appellants.

Page 523

Newton L. Margulies, Max Putnam and Putnam, Putnam & Putnam, Des Moines, for appellants.

Louis J. Kehoe, Alfred E. Baldridge, Washington, and Simmons, Perrine, Albright, Ellwood & Neff, Cedar Rapids, for appellee.

THOMPSON, Chief Justice.

Plaintiff's action is brought in five counts. We find it necessary, however, to consider only Count I. The action is in equity for specific performance of a contract for the sale of corporate stock, and defendants' complaint is that the trial court improperly denied their motion to transfer to law. Counts II through V are clearly cognizable at law, being for money demands only; and plaintiff justifies the court's ruling that they are triable in equity only by the contention that they grow out of the same transaction as that stated in Count I, which he says is clearly matter for equitable relief; and so fall within the rule that equity having obtained jurisdiction over the subject matter will determine all questions material to the accomplishment of full and complete justice between the parties. Since we have concluded that Count I is itself properly cognizable at law, it follows that the other counts are also triable in that forum, and we shall give no further attention to them.

Count I of plaintiff's petition declares upon a written contract by the terms of which the defendant Protein Blenders, Inc., agreed to purchase from plaintiff 4,505 shares of preferred [250 Iowa 656] stock in the defendant Maplecrest Turkey Farms, at the price of $52.50 per share, or a total sum of $236,512.50. Protein Blenders, Inc., will hereafter be referred to as the defendant. The petition alleges that the defendant has failed and refused to accept the stock or to pay the agreed amount therefor.

It is further alleged that the plaintiff has 'tendered defendant Protein Blenders, Inc., all of said 4,505 shares of said preferred stock together with the certificates evidencing same, properly endorsed and demanded payment therefor; sellers have performed all other conditions on their part.

'Plaintiff is now ready, willing and able to perform said contract * * * and hereby tenders said 4,505 shares of said preferred stock and the certificates evidencing same properly endorsed.'

The petition further pleads that 'Said preferred stock is of unknown and not easily ascertainable value; that the plaintiff has no adequate remedy at law.' The prayer of the petition is this: 'Wherefore, on Count I plaintiff prays for a decree of specific performance of said contract and judgment against defendant Protein Blenders, Inc. for $236,512.50 with interest thereon as provided by law and for such other relief as may be equitable and that he have judgment for costs.' Defendants moved to transfer to law, and their motion was overruled. Application being duly made, we granted leave to appeal as from an order before final judgment.

I. It is the defendant's contention that Count I of plaintiff's petition is merely a money demand and as such is triable by ordinary proceedings; in other words, that plaintiff has an adequate remedy at law. In addition to its motion for transfer of

Page 524

the entire action to law, defendant filed a written request for a jury trial, which the trial court's ruling had the effect of denying also.

The plaintiff asserts that for the purposes of this appeal we must take the case as made by its petition. This is correct, at least as to well pleaded allegations. Gigray v. Mumper,141 Iowa 396, 398, 118 N.W. 393, 394. So it is urged that the statements that the stock in question is of unknown and not easily ascertainable value are conclusive; and this being so, it follows [250 Iowa 657] that equitable jurisdiction to enforce specific performance must attach. We agree that the allegations as to value must be taken as true; but we are unable to join in the conclusion which plaintiff draws therefrom. We think ...


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