Rosenbaum Bros. v. Levitt

• Citation: 80 N.W. 393,109 Iowa 292
• Court: United States State Supreme Court of Iowa
• Decision Date: 13 October 1899
• Parties: ROSENBAUM BROS. v. LEVITT ET AL.

109 Iowa 292

80 N.W. 393

ROSENBAUM BROS.

v.LEVITT ET AL.

Supreme Court of Iowa.

Oct. 13, 1899.

Appeal from district court, Franklin county; B. P. Birdsall, Judge.

Action at law upon a promissory note. Defense, duress, undue influence, want of consideration, and that it was given upon an agreement, express or implied, not to prosecute one A. J. Doidge, a son of one of the defendants and a son-in-law of the other, for the crime of forgery. Trial to a jury, verdict and judgment for plaintiff, and defendants appeal. Reversed.Taylor & Evans, for appellants.

E. P. Andrews and B. I. Salinger, for appellee.

DEEMER, J.

The note in suit was executed by defendants on or about July 10, 1895. It is claimed that they were in no manner indebted to plaintiff, but that they were induced to execute the same because of threats made by plaintiff's agent to prosecute one A. J. Doidge for the crime of forgery, and an agreement on the part of said agent that, if defendants would execute this note with another of equal amount, they would not prosecute said Doidge for the crime he is said to have committed. Plaintiff denies these claims, and says that the notes were given in settlement of a $1,500 note held against A. J. Doidge, which also bore the names of defendant Levitt and another person as makers. It admits that defendant Levitt claimed that his signature to the said $1,500 note was a forgery, but claims that the note in suit was given in settlement of the forged note.

1. At the time the note in suit was given, plaintiff was represented by one Ray. The defendants were each asked on the witness stand to describe his conversation with them at the time the note was given, as to being angry or excited. Objections to the questions were sustained. We think they should have been answered. They do not call for a conclusion,but for a fact, and that fact was a material inquiry in the case.

On cross-examination of witness Ray, he was asked if he did not, just before or while conducting the negotiations with defendants, state to various persons that he proposed to have his money or send A. J. Doidge to the penitentiary. Objections to these questions were sustained. We think they should have been answered. Truthful response to the interrogatories might have thrown light on the questions at issue, and, in view of the witness' statement on his examination-inchief that he never at any time said anything about prosecuting A. J. Doidge, they were certainly proper cross-examination.

One Whelman, plaintiff's treasurer, who lives in Chicago, was permitted to state the consideration for the note in suit. Objections were made to the questions which elicited these answers, on the ground of incompetency, irrelevancy, and immateriality. None of these grounds were tenable. Counsel now says that the witness had no personal knowledge of the matter, and that his evidence is merely hearsay. It may be that this objection, if made in time, ought to have been sustained. No such objection was made to the evidence, however, and, as the witness stated the facts as of his own personal knowledge, there was no error.

Some other rulings are complained of. In so far as they were erroneous they were cured by the subsequent admission of the evidence. It is not important that we set out those which were clearly correct.

2. Section 4889 of the Code makes it a crime for any person to take any money or valuable consideration, or promise therefor, upon an agreement or understanding, express or implied, to compound or conceal such offense or not to prosecute the same. The trial court, after...