Bartlett v. Bolte

• Decision Date: 23 June 1922
• Docket Number: No. 34654.,34654.
• Citation: 188 N.W. 814,193 Iowa 1063
• Parties: BARTLETT v. BOLTE ET AL.
• Court: Iowa Supreme Court

193 Iowa 1063

188 N.W. 814

BARTLETT

v.BOLTE ET AL.

No. 34654.

Supreme Court of Iowa.

June 23, 1922.

Appeal from District Court, Muscatine County; D. V. Jackson, Judge.

Action in equity wherein plaintiff asks judgment against the Boltes and Swailes upon a note executed by the Boltes to Swailes, and by him indorsed to plaintiff. Also asking the foreclosure on a chattel mortgage given on certain automobiles to secure said note. The petition also asks that the claim or interest of appellants, as purchasers of the automobiles, be decreed to be inferior to plaintiff's lien, and that special execution issue, and that the machines be delivered up and sold. There was a decree for plaintiff as prayed, and the parties named in the caption as appellants appeal. Affirmed.Wolfe, Wolfe & Claussen, of Clinton, for appellants.

John F. Devitt and H. M. Bartlett, both of Muscatine, and Ralph P. Howell, of Iowa City, for appellee.

PRESTON, J.

The plaintiff, H. H. Bartlett, is the wife of H. M. Bartlett, who was acting for her in the transaction in question and had power of attorney to loan money for her, etc. As said, plaintiff brought an ordinary action for judgment against the makers and indorsers of the note, and to foreclose the mortgage on two automobiles. Appellants answered separately, and stated in substance that Bolte was engaged in buying and selling Premier cars in June, 1920; that he purchased said cars for resale; that said cars constituted the entire stock of said Bolte; that all parties connected with the mortgage knew that said cars were purchased for resale, and that it was orally agreed that said cars should be sold, notwithstanding the terms of the mortgage. In addition, appellant Fannie D. Cossman states that Bickelhaupt purchased one of the cars from Joseph Bolte, and that she purchased it from Bickelhaupt, and is the absolute owner. Appellant Mrs. Studer alleges that Bickelhaupt purchased the other car, and that she is the owner by purchase from him. The contention of appellants is that appellee knew the circumstances; that Swailes also knew of the arrangement and consented thereto; and that the mortgage lien was waived, and that plaintiff is estopped from asserting her lien. The reply denies each affirmative allegation of the separate answers. The foregoing were the issues, and the only issues, upon which evidence was introduced up to the time when both parties had rested. Thereafter appellants filed an amendment to their answers, and stated that such amendment was so filed to meet the proof. But appellee urges that new issues were therein raised. This matter will be referred to later.

[1] The principal question in the case, and to which the evidence was largely directed, is one of fact, whether plaintiff so waived her lien. The burden was upon appellants on this issue (Bensen v. Reger, 186 Iowa, 19, 168 N. W. 881, 172 N. W. 166), and that they bought the property without notice of plaintiff's mortgage (Diemer v. Guernsey, 112 Iowa, 393, 83 N. W. 1047). It appears that in June, 1920, Joseph G. Bolte desired to borrow some $7,000 or $8,000 upon the two Premier cars in question. The automobiles were then on the cars in the city of Davenport, and consigned to Bolte. Bolte saw Mr. Bartlett a few days prior to June 17, 1920, in regard to securing a loan of that amount of money. Mr. Bartlett refused to loan that amount to Bolte upon the cars, because he did not think the security adequate, but informed Bolte that if he could get a man who was responsible to take the note and mortgage, and assign the same and indorse the note, that he would make the loan. Bolte secured W. H. Swailes, who was acceptable, and on June 17, 1920, Bolte and his wife executed a mortgage on the two cars to Swailes, and the same was then assigned to plaintiff. Plaintiff was present at the time of the execution of the note and mortgage and the assignment to her. The note and mortgage were for $7,525. Plaintiff paid Swailes by check the sum of $7,000. The check was indorsed by Swailes to Bolte. The balance was for discount, and for an item owing by Bolte. Plaintiff, her husband, W. H. Swailes, Joseph and Maude Bolte, were present when the note and mortgage was executed. The several parties having knowledge of the transaction testified in detail as to what was said and done, and there are other circumstances brought out by each bearing upon the question of the alleged waiver. The mortgage itself provides:

“Both of the above cars are new, and are now standing on a freight car in the railroad yards at Davenport, Iowa, same to be unloaded and moved to and kept at the J. G. Bolte Tractor Company salesroom, Davenport, Iowa. Said cars are to be kept at said place continuously, and not removed therefrom until this mortgage is paid, and we represent that the above cars are free from all incumbrances, and that this mortgage is given to permit mortgagors to obtain money with which to pay for said cars.”

A later provision in the mortgage reads:

“And we agree whenever the mortgagee or his assigns shall choose so to do, it shall be lawful for him to take immediate possession of said cars wherever found, and to sell the same, etc.”

Still another provision reads:

“Mortgagors agree not to remove the property from the place above stated, and agree to insure the cars,” etc.

The trial court, having seen and heard the witnesses, found for plaintiff on this issue. We shall not set out the evidence. It is enough to say that we reach the same conclusion.

2. As said, after both parties had rested, appellants asked leave to file an amendment to their answers to make the allegations of the pleadings conform to the proofs. To this plaintiff objected on the following grounds:

The amendment states new issues; issues that were not in the case when called for trial; for the further reason that it does not attempt to conform the pleadings to the proof, but sets up new and distinct defenses; for the further reason that the testimony upon which they claim to base their amendment was all properly objected to at the time, and cannot be considered by the court as the basis for their amendment, being based upon the testimony of Mr. Bartlett, upon cross-examination, and the entire cross-examination was objected to, and was improper and cannot be considered by the court in the determination of the case; plaintiff has had no opportunity to meet any of the claims made by defendants in the proposed amendment, and for that reason it is wholly incompetent and immaterial, and she asks that permission to file said amendment be denied; in case the court should grant leave to so file, then the objections are renewed and made the basis of a motion to strike the same from the files as fully as if set out in this motion, and the motion heretofore made is incorporated into and made a part of this motion to strike. The proposed amendment recites that leave to file the same was first had, but the record does not otherwise show that leave was granted. There was no ruling on the motion to strike. The court did not impose any terms as a condition for filing the amendment by offering to reopen the case and permit plaintiff to be further heard, or otherwise, Code, § 3600. It is true that appellee did not ask a continuance, or that the case be reopened, further than to state in the objections that she had no opportunity to meet the new claims. Appellee cites Stewart v. Stewart (Iowa) 186 N. W. 833, to the proposition that an amendment setting up new and distinct causes of action is not allowable. Considering all these circumstances, it is somewhat doubtful whether appellants are entitled to review of the issues raised in the amendment, but we shall notice them briefly.

[2] The amendments sets up that the mortgage in question from Bolte and wife to Swailes was acknowledged by the Boltes before H. M. Bartlett, as notary public, and that because H. M. Bartlett was the attorney in fact for plaintiff, with power to loan money and do other things for plaintiff, the acknowledgment was void, and the fact that it was placed upon record imparted no notice to appellants, and that they had no notice, either actual or constructive. It is alleged and contended by appellants that a part at least of the $525 before referred to went to H. M., the notary; that he had such an interest in the mortgage as to disqualify him. The record does not show that fact, or that any part of the mortgage was to go to H. M. Bartlett personally, rather than to the plaintiff. In a sense his evidence might be construed as referring to it in a personal way, as he did in regard to the $7,000, but he was transacting the entire business for his wife. There is no claim that he had any interest in the $7,000. As we understand the record, the...