Bank of Bushnell v. Bros

• Decision Date: 24 September 1913
• Citation: 161 Iowa 362,142 N.W. 1004
• Parties: BANK OF BUSHNELL v. BUCK BROS.
• Court: Iowa Supreme Court

161 Iowa 362

142 N.W. 1004

BANK OF BUSHNELL

v.BUCK BROS.

Supreme Court of Iowa.

Sept. 24, 1913.

Appeal from District Court, Johnson County; R. P. Howell, Judge.

Suit on note. Trial to jury; verdict for defendants. Plaintiff appeals. Affirmed.Henry G. Walker, of Iowa City, for appellant.

Wade, Dutcher & Davis, of Iowa City, for appellees.

PRESTON, J.

December 29, 1909, defendants executed their note for $1,000 to Truman's Pioneer Stud Farm of Bushnell, Ill. Defendants purchased a stallion of said payee, or rather exchanged a colt of theirs for a stallion. The note was given for the difference. Plaintiff claims to have purchased the note from the payee April 28, 1909, for $990 and sues as an innocent holder. Defendants deny that plaintiff is an innocent holder without notice. They also allege that the Trumans falsely and fraudulently represented the horse to be sound; that the horse had stringhalt in one hind leg and had a disease of long standing in his front feet. The same facts were plead as a breach of warranty. The evidence is ample to show such false representations. In fact, defendant's evidence on this point is not disputed. The errors alleged to have been committed by the trial court are in regard to rulings on objections to evidence, instructions to the jury, and some minor matters.

[1] 1. Witnesses Means and McCracken were asked to describe the condition of the horse as they observed it on the day it was delivered to defendants. They gave their testimony without objection, but, when each had concluded his evidence, plaintiff moved to strike the testimony as incompetent, irrelevant, and immaterial, and the motion was overruled. The testimony was for the most part perfectly proper. If any part of it was objectionable, such part should have been specifically pointed out in the motion. It was not error to overrule the objection to the testimony as a whole. State v. Hasty, 121 Iowa, 507, 517, 96 N. W. 1115.

[2] Objections should be timely as well as specific. A party ought not to sit by and allow evidence to go in without objection and take his chances on its being favorable to him but, if it should be unsatisfactory, move to strike it out.

[3] 2. During the cross-examination of one of the defendants, counsel for plaintiff asked him if a paper, produced and shown to the witness, was a copy of the contract entered into by defendants and Trumans December 29, 1909; witness answered that it was; and plaintiff then offered the contract in evidence and moved to strike out the testimony of the witness, as to the representations of Trumans, relative to the soundness of the horse, as incompetent, for the reason that it is an attempt to vary the terms of the written contract by parol evidence. This motion was overruled. We shall later refer to this written contract, which was a bill of sale, and the warranty therein and the question as to whether that matter of the warranty was properly presented to the court. The objection now being considered has reference to false representations. As before stated, the same facts were pleaded as false representations and breach of warranty. The witness had testified in chief, without objection, to all conversations, statements, and representations of the Trumans. Another defendant testified without objection to such statements. The first and only time the written bill of sale was referred to on the trial was on cross-examination of one of the defendants, as above stated. Defendants were not relying on the bill of sale, but their defense was independent of it and based upon fraud. Even as to the warranty, defendants did not rely on the bill of sale or any warranty contained in it but upon oral statements and representations which they also claimed as a warranty. The ruling of the court was correct. The evidence was admissible as to the false representations at least. The rule excluding evidence contradictory of a written instrument does not apply when fraud is the gravamen of the action or gist of the defense. Humbert v. Larson, 99 Iowa, 275, 68 N. W. 703;Stanhope v. Swafford, 80 Iowa, 45, 45 N. W. 403;McNight v. Parsons, 136 Iowa, 390, 394, 113 N. W. 858, 125 Am. St. Rep. 265, 22 L. R. A. (N. S.) 718, 15 Ann. Cas. 665;Lavalleur v. Hahn, 152 Iowa, 649, 132 N. W. 877, 39 L. R. A. (N. S.) 24;Bank v. Young, 140 N. W. 376, 379. This would be the rule as between the original parties to the contract and is the rule as between this plaintiff and defendants, unless plaintiff was an innocent holder of the note. There was evidence from which the jury may have found that plaintiff was not such, and they must necessarily have so found in order to find for defendants.

[4] 3. It is contended by appellant that instruction No. 7 is erroneous in that it directs the jury to find a warranty without reference to the written contract, covering that feature of the transaction. The theory is that there was a written warranty in the bill of sale and that an oral warranty may be shown. Western Electric Co. v. Baerthel, 127 Iowa, 467, 103 N. W. 475, is cited. There is a warranty in the bill of sale by which the stallion is warranted to be an average foalgetter. Defendants do not complain of the horse in this respect because, as they say, up to the time of the trial they had not had the horse long enough to tell. Whether the oral alleged warranty that the horse was sound, which was also a representation, would conflict with or enlarge the express warranty in the writing need not now be determined, because in our opinion the question was not properly presented to the trial court. In their answer defendants did not refer to or rely upon the writing but did set out oral statements as false representations and breach of warranty. Plaintiff in its reply simply denied the allegations of the answer and did not refer to the written contract, nor was this matter raised in the motion to direct a verdict; no instruction was asked by appellant on this subject; and there was no motion for a new trial. All the evidence as to parol statements went in without objection. It does not appear that the warranty in the written contract was ever called to the court's attention, and, if it was not, the court had the right to rely on the pleadings, the oral testimony, and the theory of the trial. As we have stated, the only reference to this matter on the trial was the objection and motion made during the cross-examination of one of the defendants when the writing was identified. If the point now urged was intended to be relied on in the trial court, it was only fair to that court to call its attention to the matter in some way.

4. At the close of the evidence plaintiff moved the court “to direct a verdict for plaintiff in accordance with the prayer of plaintiff's petition.” The motion was overruled. No grounds or reasons were given. The evidence was sufficient to take the case to the jury.

[5] 5. Instruction No. 8 is complained of. So much of it as is necessary to an understanding of the objection to it is as follows: “(8) If you should find that the said note and the signatures of defendants thereto was obtained through the fraud of Truman Bros., or on account of Truman Bros. having warranted the horse to be sound when he was not, then the burden is upon the plaintiffs to show by a preponderance of evidence that they acquired said note in the ordinary course of business, for value, before maturity, and without notice of such fraud or breach of warranty or of either of these, or of any other fact or circumstances which would amount to actual bad faith on their part should they not make an investigation as to the same before they can recover. * * * To constitute notice of an infirmity in the instrument, the person to whom it is negotiated must have actual knowledge of the...