Beh v. Van Ness

• Decision Date: 14 December 1920
• Docket Number: 33676
• Parties: JOSEPH F. BEH, Appellant, v. M. J. VAN NESS, Appellee
• Court: Iowa Supreme Court

180 N.W. 292

190 Iowa 151

JOSEPH F. BEH, Appellant, v. M. J. VAN NESS, Appellee

No. 33676

Supreme Court of Iowa, Des Moines

December 14, 1920

Appeal from Shelby District Court.--EARL PETERS, Judge.

ACTION upon two promissory notes, bearing date February 27, 1914 for $ 814.18 and $ 58.50, respectively, payable to plaintiff and signed by F. N. and M. J. Van Ness, husband and wife. Trial was had to a jury, which resulted in a verdict for the defendant, and plaintiff appeals.

Affirmed.

Cullison & Cullison, for appellant.

Thomas H. Smith, for appellee.

STEVENS J. WEAVER, C. J. LADD and ARTHUR, JJ., concur.

OPINION

STEVENS, J.

It is conceded that signatures to both notes were written by F. N. Van Ness, who was the husband of defendant, and who was deceased at the time of the commencement of this action. The defendant denied the execution of the notes, and averred that, if the same were signed by her husband, no consideration was received therefor. At the conclusion of all the testimony, plaintiff moved the court to withdraw the issues of payment and want of consideration. The motion was sustained as to the issue of payment, but otherwise overruled.

The court submitted to the jury the issue of want of consideration, and the question of the authority of F. N. Van Ness to sign the name of defendant to said notes. It is admitted by counsel for appellant that the latter issue was properly submitted to the jury, but they contend that the plea of want of consideration is wholly without support in the evidence, and should have been withdrawn. This presents the only question for our consideration. Defendant at one time owned, and resided with her husband on, a farm near Portsmouth, in Harrison County, Iowa, but later owned, and resided with her husband upon, a farm of 380 acres near Moorhead, Iowa. Her husband was without separate property. During a portion of the time covered by the numerous transactions between the parties, plaintiff was engaged in the mercantile and loan business at Harlan, Iowa. The record discloses that the defendant and her husband obtained a good many loans of or through plaintiff, who claims that the consideration for the notes arose out of these transactions. The defendant, testifying upon her own behalf, denied that she received any consideration therefor, and that she ever knew thereof until after the death of her husband, which occurred in 1917; and she further testified that she had a conversation with plaintiff in 1911, upon an occasion when she and her husband executed a note for $ 3,000, and a mortgage upon her farm to secure the payment thereof, in which he stated that they were square up to date, and that everything was then settled between them.

Plaintiff, testifying as a witness in his own behalf, undertook to state the consideration for the note. He testified that it was given for commissions upon loans, interest advanced by him, taxes paid, and, perhaps, expense of procuring abstracts. His testimony as to the several items of commission earned, together with taxes and interest paid, is very indefinite, and not wholly consistent. In a letter addressed to the defendant, and bearing date February 23, 1917, plaintiff stated that the note originated from the first loan made by him to the defendant and her husband. It appears from his testimony, however, upon cross-examination, that no part of the consideration arose out of the first loan made, which was in 1902, unless, possibly, a commission of $ 20. A complete settlement between the parties was had, February 23, 1903. Plaintiff, on April 14, 1914, which was after the notes in suit were executed, rendered a statement to defendant, showing a balance due of 10 cents. Neither of the notes in controversy is referred to in the statement, but they were not then due. According to the testimony of defendant, the proceeds of a loan of $ 3,000 in 1911 were applied first to the payment of a note for $ 1,500, executed March 10, 1909, to the Wolcott Savings Bank, and the balance was retained by plaintiff, upon sums claimed to be due him.

Referring to this transaction, the defendant testified:

"The only time he ever claimed a balance due him when we settled was in 1911, when we gave him the $ 3,000 mortgage. There was a mortgage of $ 1,500 on the place, and we took that up, and gave him a $ 3,000 mortgage. He did not pay us any money then at all. He claimed the difference between the two mortgages we owed him. He said it was for one thing and another. He said it was on the back...