Ballard v. Ballard

• Decision Date: 04 April 1939
• Docket Number: 44582.
• Citation: 285 N.W. 165,226 Iowa 699
• Parties: BALLARD v. BALLARD.
• Court: Iowa Supreme Court

285 N.W. 165

226 Iowa 699

BALLARD v. BALLARD.

No. 44582.

Supreme Court of Iowa.

April 4, 1939

Appeal from District Court, Monona County; Robert H. Munger, Judge.

A suit on a promissory note. Defendant plead that plaintiff was not the owner of the note; that conditions under which it was delivered were not fulfilled; that there was no valid delivery after it had once been rejected by plaintiff; that there was no consideration for it; and that the same had been materially altered. Trial was had to jury and a verdict returned for plaintiff. Defendant's motion for judgment notwithstanding the verdict, exceptions to instructions and motion for new trial being overruled, defendant appeals.

Affirmed.

Prichard & Prichard, of Onawa, for appellant.

Ward Evans and E. A. Smith, both of Sioux City, for appellee.

SAGER Justice.

Plaintiff and defendant are brothers who inherited from their mother a one-sixth interest each in certain land. A partition suit was commenced by one of the heirs, which proceedings resulted in the appointment of a referee, W. B. Whiting. He thereafter sold the land to the defendant. Thinking himself short of funds to pay the purchase price, defendant sought to get some of his brothers, among them the appellee, to accept his note for their shares. Whiting conducted the correspondence upon which the case largely turns. One of the questions involved and really the one upon which the case turns, is the question as to whose agent Whiting was during the negotiations.

Plaintiff-appellee was at all times a resident of Florida; and he had no connection with the transaction other than is disclosed by the exhibits. On October 2, 1931, Whiting wrote to three of the defendant's brothers, including the plaintiff, and advised them that Charlie (defendant) had been in that day and was unable to settle for the deed and would like to get an extension of time for a year. The letter further advised that an attorney representing a creditor of another brother was insisting on payment at once and threatening a resale and that the land at that time would not sell for as much as appellant had paid for it. The letter then continues:

" Would you be willing to allow Charley to pay enough to take care of Frank's share, and then let your share go until he is able to sell some cattle or make payment some other way?

Charley had some money in our Bank and we were compelled to close a week ago Monday, so that money is tied up for a while.

If the three boys (among them plaintiff) * * * would be willing to give Charley an extension of a year, it seems to me it would save a lot of costs and in the end you would get more than you would by Williams attorney ordering a resale of the land, which he undoubtedly has the power to do."

On March 30, 1932, Whiting addressed a letter to the defendant-appellant which reads as follows:

" Hess was up today and we went down to George Prichard's and fixed up the land deal. I am holding the money of Lynn's and Billy's here for you as you are to give them notes for this. Out of this amount it will take $598.22 to pay the balance that you owe for the land and house. Shall I now send this balance to the insurance company or send it direct to you?

If you could come over, we could go over this entire deal with George Prichard, but if you can't come over, just advise whether you want the balance of this money sent to you or to be applied on the mortgage of the Prudential Life. Before sending this money out, it will be necessary to get the receipts from Billy and Lynn, which I have enclosed to them and asked them to return."

Enclosed with this under the same date was a statement to the defendant as to the sale of land which sets up the sale price and other matters and concludes with this: " Amount necessary to deduct from the amounts coming to Lynn and Billy to make up enough to pay for the balance of the land-$598.22."

On May 27, 1932, Whiting again addressed a letter to the defendant as follows:

" I received a letter from Lynn and he inclosed the note that you signed to him. When you are over here he would like the time put in the note and the note signed in ink, so I'll hold it here until you come.

Lynn says that he did not receive the receipt that I sent you for him to sign. Before we can close the estate it will be necessary to get these receipts from Lynn and Billy. Will you send them out to the boys just as soon as you get this letter? As soon as we get those receipts we can settle up the estate."

This postscript was attached: " Before I settle with you we will have to get the receipts signed from boys."

On July 1, 1932, Whiting again wrote the defendant saying that he had received Billy's (one of the brothers) receipt for the amount of his share and advised of a deduction necessary. (Here follows a list of deductions.) The letter continues:

" Balance due you for which I am enclosing a check 700.51

Total $1,327.23

If I had known you weren't coming back soon I'd have sent this to you before.

Did you ever get Lynn's (plaintiff) receipt?"

Some days before the letter just referred to had been written, plaintiff wrote to appellant. Among other things, he had this to say:

" Charlie your note you sent me was not all filled out. You never wrote in when it was payable and then you should have signed it with pen & ink. Willard wrote me that he sent you a Estate receipt to send me when you sent your note but you failed to send it to me.

You say you will be down to Whiting soon. So I am sending your note to Willard Whiting. So he can make out a new note for you to sign and if you have that Estate receipt you had better bring it along with you as Willard wants to get things fixed up as soon as he can." (It should be noted that the referee's name was Willard Whiting and his address, Whiting.)

On August 23, 1934, Whiting sent back to plaintiff the note which had been signed by the defendant and which is involved herein, with this letter: " The lost is found and I am enclosing the Charlie Ballard note that you returned to me. In Iowa lead pencil signature is as good as...