V. Specific Causes of Action. 9. On void contracts. An action will not lie 19. on bond given in appointment of on a contract made in violation of a statute and receiver. Where, on the application of the in subversion of the policy of the State, whether plaintiff, a receiver is appointed to take charge it be malum prohibitum or malum in se. Davis of the property in controversy, and a bond is Bronson, 6 Iowa, 410; Pike v. King, 16 Ibid. 49. executed by such plaintiff to the defendant, 10. Practice: nolle prosequi. In actions ex conditioned for the payment of all costs and contractu, as well as in those ex delicto, a plaintiff damages which may be awarded to the respondmay enter a nolle prosequi as to a part of the ent by reason of the wrong suing out of the defendants when they sever in their pleas, and process, or the wrongful appointment of such plead matter going to their personal discharge. receiver, an action may be maintained upon And this is probably so when they sever in such a bond, upon the failure of the plaintiff to their pleas without looking at the matter of the maintain his suit, to recover damages occasioned plea. Quigley v. Merritt et al., 4 Iowa, 475. by the wrongful appointment of the receiver. Thayer v. Hurlburt et al., 5 Iowa, 521. 21. But such an action does not accrue on a bail bond before its forfeiture is properly ordered by the court having jurisdiction. Ibid. 22.- on sheriff's bond: bar. A judgment against a sheriff for misconduct in office is not a bar to another action for the same cause on his official bond. Charles v. Haskins et al., 11 Iowa, 329. 23.- for trespass. An action may be maintained against a sheriff, and the sureties on his official bond, for trespasses committed by him in attempting to discharge his duty as an officer. Ibid. 24. for moneys collected. Where a deputy sheriff collects money on execution, and neglects or refuses to pay over the same, the remedy of the party injured is by action against the sheriff on his bond, and not against the deputy and his sureties. Brayton v. Town et ai., 12 Iowa, 346. 25. Contract: payable in property. Where, in a special contract for work, it is stipulated that payment may be made, part in cash and 17. Bond: attachment. A counter-claim for damages on an attachment bond for wrong-part in goods, and payment is refused by the fully suing out the attachment is an action on a contract and not for a tort. Branch of the State Bank v. Morris, 13 Iowa, 136. party for whom the labor is performed after he has accepted the work, the party performing the labor may maintain an action as on a mòney contract. Stewart v. Craig et al., 3 G. Gr. 505; Butt v. Tuthill, 10 Ibid. 585. 26. Upon the rescission of an entire contract for the sale of real estate, by the mutual and Specific Causes of Action. voluntary consent of the parties, the law implies, in the absence of any agreement to the contrary, a promise on the part of the vendor to refund to the vendee the money or the value of the property received upon such contract, and an action may be maintained thereon; but such a promise is not implied from an agreement to rescind upon a notice which yet remained executory. Nason v. Woodward, 16 Iowa, 216. 27. False representations. A vendee cannot recover of the vendor for damages sustained by reason of false representations, when it is not alleged or proved that the representations were known by the party making them to be false; or when it appears that the damages sustained are contingent and not actual. Kinmans v. Chandler & Lockhart, 13 Iowa, 327. 28. -Where A. sold certain lands to B., making false and fraudulent representations as to the locality of the lands sold, and, at the request of B., conveyed the same to C., as security for the payment of an indebtedness from B. to him, it was held that, in an action for damages for such fraudulent representation, A. was liable, and that B., being the real party in interest, was the proper party plaintiff. Phillips v. Bush, 15 Iowa, 64. 29. Conversion by bailee. Where property placed in the hands of bailee is wrongfully con verted by him, the bailor may waive the tort and maintain the action of assumpsit therefor. Goodenow v. Snyder, 3 G. Gr. 599. it was held that J. could maintain an action against C. for its recovery. Johnson v. Collins, 14 Iowa, 63. 33. voluntary payment. In an action for the purchase-money of real estate, the defendant set up a non-performance of con. tract on the part of the plaintiff to procure the release of dower. A creditor of the plaintiff caused the defendant to be garnished in proper proceedings, and then, by the expenditure of a sum of $100, secured a relinquishment of dower which was satisfactory to defendant, whereupon he withdrew his defense and permitted judgment to go against him. Held, that, in procuring a release of dower, the creditor was acting as an intermeddler, and was not entitled to compensation out of the judgment for the sum thus expended. Meyers v. McHugh, 16 Iowa, 335. 34. Promise to refund. Where the plaintiff in a foreclosure proceeding fails to credit payments made on the mortgage debt, and takes a decree for the entire amount, but afterward promises the defendant to refund the amount of such payments, the defendant may maintain an action thereon. Doyle v. Reilly, 18 Iowa, 108. 35. Agreement to give note of third party in payment. If a party agrees to give the note of a third party, in full payment of a balance due from him, and fails to deliver the note, as agreed, when requested, the amount may be sued for as a cash demand. Hall v. Hunter, 4 G. Gr. 539. which he subsequently assured A. had been entered for him. A. relying upon the assurance conveyed the land to C. It was held, that B. was liable to an action by A. for a breach of the contract, and that the action was brought by A. for the use of C. did not prejudice his right to Scott, for the use of Bolenbaugh v. 30. Promise for benefit of third party. If one party make a promise to another, for the 36. Special contracts to enter land. A. debenefit of a third, such third person may main- posited with B. a sum of money with which the tain an action on the promise. Scott's Adminis-latter undertook to enter a certain parcel of land trators v. Gill et al., 19 Iowa, 187. 31. - rule applied. Where the obligee in a bond for the conveyance of real estate assigned the bond, and it was agreed in the contract of assignment that the assignees should assume and pay the indebtedness of the assignor to the obligor. Held, that the obligor could maintain an action against the assignees on the promise (citing Thompson v. Bertram et al., 14 Iowa, 476; Corbett v. Waterman, 11 Ibid. 86; Moses v. The Clerk of Dallas District Court, 12 Ibid. 139). Scott's Administrators v. Gill et al., 19 Iowa, 187. 32. Implied promise. Where F. paid the money of J. to C., and C. promised to pay the same to J., but neglected and refused so to do, recover. Granger, 3 Iowa, 447. 37. when a person receives the money of another and for a valuable consideration undertakes to enter with it for such person a particular parcel of land, and by mistake enters and conveys to him a different parcel, he is liable to an action for the money, with a tender by plaintiff of a reconveyance of the lands entered and conveyed. Robertson v. Seevers, 3 Iowa, 281. Specific Causes of Action. 38. Contract for work, payable in property. sumpsit on a promissory note, "that if they Where a special contract for work stipulated that payment could be made half in cash and half in goods, and where payment was refused, by defendant after he accepted the work, held, that plaintiff might sue as on a money contract. Stewart v. Craig et al., 3 G. Gr. 505. were satisfied that there was an outstanding agreement for the payment of the purchasemoney for a claim," the plaintiff could not recover on an indebitatus account. Remsey v. Duke, Mor. 385. 44. Intoxicating liquors: action for purchase39. Deceit. Where an agent sold the prop- money. An action can be maintained to recover erty of his principal for a certain sum, for which purchase-money paid, or the value of goods exhe took the notes of vendee, and then conveyed changed for intoxicating liquors in violation of to his principal a tract of land, leading him to law. In such case the plaintiff may treat the conbelieve that he had received it in exchange for tract as void, and if it is set up as a valid defense the property, held, that the principal could he may show that it falls within the statutory maintain an action against the agent for the prohibition. Smith v. Grable, 14 Iowa, 429; amount actually received less his proper charges | Whitlock v. Workman & Co., 15 Ibid. 351; Davis and compensation, even though no express representations were made. Briggs & Sawyer v. Hartman, 10 Iowa, 63. 40. Forcible entry and detainer: administrator. At comnion law an executor or administrator could not maintain an action of forcible entry and detainer for the possession of the lands of his intestate; but section 3954, Revision of 1860 (§ 2364, Code of 1851*), enlarges the rule, and permits the bringing of the action by the administrator. This action does not deprive the heir of his common-law right to maintain the action. Beckley, adm'r, v. Burgett, 15 Iowa, 192. 41. Fraud: in sale of personal property. Where F. was induced, through fraudulent representations of the vendor, to purchase a patent right, and W. was also induced thereby to deposit with the vendor a government bond as security that F. would pay the amount agreed to be given in accordance with the terms of the contract, it was held, the vendor having converted the bond to his own use, and the patent right proving worthless, that W. might recover the amount of his bond in an action against the vendor therefor. Wile v. Wright, 32 Iowa, 451. 42. - Held, also, under the facts of the case that the failure on the part of F. to tender back to the vendor a deed for the patent right, immediately upon the discovery of the fraud, did not affect W.'s right of recovery. Ibid. 43. Indebitatus. It was not erroneous to in struct a jury, on the trial of an action of as *The following is the section of the Code of 1851 and Revision of 1860, referred to by the court: "SEC. 2364. The legal representative of the person who might have been plaintiff, if alive, may bring this suit after his death." v. Slater, 17 Ibid. 250; Carlin & Harney v. Heller, 34 Ibid. 56; Rindskoff & Bro. v. Curran, Ibid. 325; Church v. Simpson, 25 Ibid. 408.' 45.- replevin for. An action cannot be maintained to recover possession of intoxicating liquors kept for sale in violation of the "act for the suppression of intemperance" approved January 22, 1855, † whether they are in the custody of the law or not. WRIGHT, C. J., not concurring. Funk & Hardman v. Israel, 5 Iowa, 438. But see Monty v. Arneson, 25 Ibid. 382. 46. Joint obligation: action after death of an obligor. At common law an action could be maintained on a joint obligation, after the death of one of the obligors, only against the survivors: but under section 2764 of the Revision of 1860, an action may be maintained against either the administrator of the deceased obligor, or the survivors, whether the death occurred before or after the taking effect of the Revision. Sellon & Co. v. Braden, administrator, 13 Iowa, 365. 47. Judgment. The plaintiff in a judgment may bring an action thereon, as upon any other demand, to recover the amount due. He is not confined to his remedy by scire facias. Haven & Buck v. Baldwin, 5 Iowa, 503. 48. Lease: assignee of lessor. A lease may be assigned by the lessor, so as to give to the assignee the right to recover the rent reserved, + Section 15 of the act cited, being section 1571 of the Revision of 1860, provides "that no action of any kind shall be maintained in any court in this State for intoxicating liquors, or the value thereof, sold in any other State or country, contrary to the law of said State or country, or with the intent to enable any person to violate the provisions of this act. Nor shall any action be maintained for the recovery or possession of any intoxicating liquors or the value thereof, except in cases where the person owning or possessing such liquors with lawful intent may have been illegally deprived of the same." Specific Causes of Action. without a sale or transfer of the reversionary which the transaction was made, cannot be reinterest. Watson v. Hunkins, 13 Iowa, 547. 49. Military duty: liability for refusal to perform. The defendant was duly drafted into the service of the United States, in the first class or division, and the plaintiff was drawn in the second class, or as alternate; the defendant, though primarily liable to render the service, never responded, but fled the country, and secreted himself beyond the control of the proper military authorities, in consequence of which neglect and refusal the plaintiff was com pelled to, and did, render said service. Held, that no action for damages could lie. COLE, J., dissenting. Dennis v. Larkin, 19 Iowa, 434. 50. Money had and received. When A paid the money of B to C, and C promised to pay it to B, but neglected and refused so to do, it was held that B could maintain an action against C❘ for its recovery, notwithstanding his right of action against A. Johnson v. Collins, 14 Iowa, 63; District Township of Norway v. District Township of Clear Lake, 11 Ibid. 506. 51. Mortgage: action against vendee who assumes payment of mortgage. Where the purchaser of mortgaged premises assumes the payment of the mortgage debt, the mortgagee may treat both mortgagor and purchaser as principal debtors as to him, and have a personal decree, in a foreclosure proceeding, against either or both. As between the mortgagor and the vendee, the vendee becomes a principal debtor, and the mortgagor his surety; but the mortgagee may treat them both as principals. Corbett v. Waterman, 11 Iowa, 86; Moses v. The Clerk of the Dallas District Court, 12 Ibid. 139; Thompson v. Bertram et al., 14 Ibid. 476; Scott's Administrator v. Gill et al., 19 Ibid. 187. 52. Municipal corporations: torts of officers and agents. An action will lie against a municipal corporation from injuries resulting from wrongful acts done by such corporation, through its officers and agents claiming to act within the scope of its legitimate powers. Freeland v. City of Muscatine, 9 Iowa, 461; Cotes & Patchin v. City of Davenport, Ibid. 227; Templin v. Iowa City, 14 Ibid. 59. covered in an action by the payor against the corporation. Kraft v. City of Keokuk, 14 Iowa, 86; Espy v. Town of Fort Madison, Ibid. 226. 55.- taxes fraudulently collected. An action cannot be maintained by a tax payer against a county for moneys fraudulently collected by the treasurer as taxes, and applied to his own use. Estep v. Keokuk County, 18 Iowa, 199. 56.- - services of deputy treasurer. A county treasurer cannot recover against the county for money paid as compensation to a deputy. The county is liable directly to the deputy, and not to the principal. County of Mahaska v. Ingalls et al., 14 Iowa, 170. 57. negligence in not collecting warrant. Held, that an action lies against a county treas urer, and the sureties on his official bond, for damages sustained by the county by reason of county warrants being abstracted from his office, and again put in circulation, after they had been once paid, the treasurer neglecting to cancel the warrants upon receiving them, in the manner prescribed by law. County of Johnson v. Hughes, 12 Iowa, 360. 58. defective bridge. It is the duty of the county in which a bridge is situated to make all repairs requiring an extraordinary expenditure of money, and this duty involves a corresponding liability for damages resulting from a neglect to make such repairs; and an action may be maintained by a party injured for the same. Wilson & Gustin v. Jefferson County, 13 Iowa, 181; Brown v. Jefferson County, 16 Ibid. 339. 59.- expenses in keeping prisoners. No action can be maintained on a demand for charges and expenses incurred in keeping and maintaining prisoners in a county jail, before such demand has been presented for settlement and allowance to the county judge. From an order refusing to allow such a demand, or an order allowing an insufficient amount, the claimant can take an appeal.* The State of *This decision was based upon the following section of the Code of 1851: "SEC. 3116. All charges and expenses of safe-keep 53. - Such liability did not exist at common ing and maintaining convicts and persons charged law. Ibid. 54. illegal taxes. Money paid to a municipal corporation for taxes or license fees under a mistake as to the validity of the law under with public offenses, and committed for examination or trial to the county jail, shall be paid from the county treasury, the accounts therefor being first settled and allowed by the county court; except prisoners committed or detained by the authority of the courts of the United States, in which case the United States must pay such expenses to the county." Specific Causes of Action. Iowa ex rel. Brackett v. The County Judge of v. The Davenport Gas Light and Coke Co., 24 Floyd County, 5 Iowa, 380, is not applicable to Iowa, 419. this class of cases. Marvin v. Fremont County, 11 Iowa, 463. 66. Promissory note: transfer of satisfied note. Semble, that when a note has been trans60. against school districts. A contract ferred to the purchaser for a consideration, with entered into by a school district, prior to the specific representations in regard to it, after it "Act for the public instruction of the State of had been paid by the maker, the remedy of Iowa," of 1858, should be enforced by action | such purchaser is by an action on the represen against the proper township district. McDonald tations. An action may be maintained to rev. School District No. 1, 10 Iowa, 469; Runyan v. School District No. 3, 12 Ibid. 184. 61. district order. An action may be maintained against a school district on an order drawn by the proper officer on the treasurer thereof. The creditor of a corporation is not restricted to mandamus as his sole remedy. Cross v. The District Township of Dayton, 14 Iowa, 28. 62. Negligence: setting out fire. It is the duty of a person setting out fire to use care, caution, diligence and effort to prevent injury to others, and if he is guilty of any negligence, he will be liable for any injury resulting from the fire. Hanlon v. Ingram, 1 Iowa, 108. 63. Partners: action on account stated. A partner may maintain an action at law against his copartner upon an amount found to be due upon settlement and account stated of the copartnership business. In such an action the petition should show fully the character of the settlement, and must show that the partnership is ended, and that the account between them as partners is no longer a matter of controversy. Wycoff v. Purnell, 10 Iowa, 332. 64. Pauper. An action does not lie by a third person against a son for expenditures made in support of his indigent father, in the absence of an order by the proper authorities respecting the support of such pauper, or a promise on the part of defendant to pay such expenditures. A promise to pay for past expenditures is not binding when a good or valuable consideration has not once existed. A moral obligation alone is not sufficient to sustain such a promise. Dawson v. Dawson, 12 Iowa, 512. 65. Principal and agent. Where a contract, executed by an agent, purports to be executed in his own behalf, it seems that if the alleged principal in fact received the benefits of the contract, then, in equity, at least, an action might be maintained against him upon the special facts of the case. Davison & True et al. cover the consideration paid for a note, and if the transfer was fraudulently made by the payee, the purchaser may waive the fraud and proceed by an action for the consideration. Campbell & Bro. v. Ayres, 9 Iowa, 108. 67. return of the note. The rule that the purchaser cannot recover in an action for the consideration, before placing the payee in statu quo by a return of the note, does not apply when it appears that the note had been paid when it was transferred. Ibid. An 68. by payee who holds as agent. action may be maintained by the payee named in a promissory note, notwithstanding it appears that the note was executed to him in a transaction in which he acted as the agent of another. Farwell v. Tyler, 5 Iowa, 535; Fear v. Jones, 6 Ibid. 169. 69.- - remedy where several persons hold distinct shares. Where the owner of a promissory note sold distinct shares thereof to different persons, his remedy is by an action for partition, or in equity, by making the other part-owners and the debtor parties. Conover v. Earl, 26 Iowa, 167. 70. Publication of laws. The proprietor of a newspaper has no such private or personal interest in the publication of the laws and of the proceedings of the board of supervisors, as provided for by chapter 118, Laws of the Eleventh General Assembly, as that he can, in his own name, maintain an action to compel by mandamus the board of supervisors to order such publication in his paper. Welch v. The Board of Supervisors, 23 Iowa, 199. 71. Stolen property. The vendee can recover against his vendor in assumpsit, the price paid for a horse stolen by another, and to which the vendor had not title, even if the thief has not been tried. Barton v. Flaherty, 3 G. Gr. 327. 72. Torts: parties. The plaintiff commenced an action against the defendant for damages sustained to his person by the upsetting of a stage |