Andrew v. Hanson

• Decision Date: 20 November 1928
• Docket Number: 38963
• Citation: 222 N.W. 10,206 Iowa 1258
• Parties: L. A. ANDREW, Receiver, Appellant, v. E. M. HANSON et al., Appellees
• Court: Iowa Supreme Court

222 N.W. 10

206 Iowa 1258

L. A. ANDREW, Receiver, Appellant, v. E. M. HANSON et al., Appellees

No. 38963

Supreme Court of Iowa, Des Moines

November 20, 1928

Appeal from Hamilton District Court.--T. G. GARFIELD, Judge.

Suit on a promissory note. Defendant E. B. Tyler defended on the ground that he signed the note as a surety only conditionally, and that the note had been materially altered. A verdict was directed in his behalf. The defendants Emma Hanson, Amanda Hanson, and Sarah Hanson defended on the ground of no consideration, and a claim of false representations, inducing the execution of the instrument. The court submitted to the jury the defense of false representations, and the jury returned a verdict in behalf of said defendants. Plaintiff appeals.

Affirmed.

Martin & Alexander, for appellant.

Birdsall McGrath & Archerd, for Emma Hanson, Amanda Hanson, and Sarah Hanson, appellees.

Helsell Helsell & McCall, for E. B. Tyler, appellee.

FAVILLE, J. STEVENS, C. J., and EVANS, KINDIG, and WAGNER, JJ., concur.

OPINION

FAVILLE, J.

Hanson & Tyler was a copartnership engaged in the automobile business at Webster City. Said firm was indebted to the Hamilton County State Bank, and said indebtedness was secured by chattel mortgage on certain automobiles belonging to said firm. The firm desired to secure a new contract with an automobile company, which involved the return of the automobiles covered by said chattel mortgage. It became necessary for the firm to make a substitution of securities at said bank, to effectuate the release of the cars. This they undertook to do by executing a note to the bank with sureties thereon. This is the note in suit. The note was signed by W. A. Hanson and R. C. Tyler, the members of the firm of Hanson & Tyler, and by their respective wives. It was also signed by the appellee E. B. Tyler, as surety, and later by the appellees Emma, Sarah, and Amanda Hanson, as sureties.

I. The court directed a verdict in behalf of the appellee E. B. Tyler, and error is predicated upon said ruling. It appears from the record that E. B. Tyler was the brother of R. C. Tyler, a member of said firm. E. B. Tyler signed the note in question, as surety, at said bank. It had already been signed by R. C. Tyler and his wife and W. A. Hanson and his wife. E. B. Tyler contends, among other defenses, that he signed the note at the bank and left the same there upon a conditional delivery; that the note was not to become effective unless one Christian also signed the note as surety. In regard to said matter, the cashier of the bank, who conducted the negotiations, testified as follows:

"I told him [Tyler] I expected to have Mr. Christian sign it, or words to that effect. * * * I told Mr. Tyler that we did expect Mr. Christian to sign the note."

Tyler testified that he signed the note in the bank, and that the cashier took it in his hands, and that there was something left to be done with the note; that "he [the cashier] was to secure Mr. Christian's signature, to make it complete, so the matter was not closed or completed there that evening." The appellant contends at this point that the admission of this oral testimony violated the parol-evidence rule; that the written instrument was complete on its face; and that parol evidence was not admissible to show conditional delivery. The evidence was not offered to change or vary the terms of the written instrument,--as, for example, by claiming that it was orally agreed, at the time, that the payment should be made from a certain fund, as in the case of Mechanics' Sav. Bank v. Gish, 200 Iowa 463, 203 N.W. 687. See, also, Hills Sav. Bank v. Hirt, 204 Iowa 940, 216 N.W. 281. It is a well established rule that parol evidence is admissible to show delivery upon a condition that the note was not to be effective unless other signatures were obtained thereto. Section 9476, Code of 1927; Kline v. Reeder, 203 Iowa 396, 212 N.W. 693; Travers-Newton Chautauqua System v. Naab, 196 Iowa 1313, 196 N.W. 36; Security Sav. Bank v. Hambright, 195 Iowa 1147, 193 N.W. 576; City Nat. Bank of Auburn v. Mason, 192 Iowa 1048, 186 N.W. 30; Mason v. Cater, 192 Iowa 143, 182 N.W. 179; Herron v. Brinton, 188 Iowa 60, 175 N.W. 831; Carney v. Miller, 187 Iowa 927, 174 N.W. 643; Waukee Sav. Bank v. Jones, 179 Iowa 261, 159 N.W. 691; Garner v. Kratzer, 173 Iowa 292, 155 N.W. 296; Selma Sav. Bank v. Harlan, 167 Iowa 673, 149 N.W. 882; Lavalleur v. Hahn, 152 Iowa 649, 132 N.W. 877; McNight v. Parsons, 136 Iowa 390, 113 N.W. 858; McCormick Harv. Mach. Co. v. Morlan, 121 Iowa 451, 96 N.W. 976; Sutton v. Griebel, 118 Iowa 78, 91 N.W. 825.

The court did not err in admitting the evidence with respect to the condition upon which the note was delivered to the bank.

II. The evidence in respect to said conditional delivery was not in conflict. It clearly established that the appellee E. B. Tyler signed the note as surety, and left the same with the bank, to become effective only upon the signing of the same by one Christian, as a surety, and it further appears that the signature of the said Christian was never obtained. In this connection, however, the appellant contends that Tyler was duly notified by letter from said bank that Christian had not signed the note, and that the three Hanson sisters had been substituted as signers on said note in place of Christian. It appears that Tyler did receive a letter from the bank, stating, in substance, that Christian had not signed the note, and the three Hanson sisters had signed it, and it also affirmatively appears that Tyler made no reply to said letter. This, however, did not constitute an estoppel against Tyler, nor a waiver of the conditions upon which the note was signed. The bank could not bind Tyler by such a letter, when Tyler made no response thereto. It is not a case where "silence gives...