Beidman v. Goodell

• Decision Date: 05 October 1881
• Citation: 9 N.W. 900,56 Iowa 592
• Parties: BEIDMAN v. GOODELL AND OTHERS.
• Court: Iowa Supreme Court

56 Iowa 592

9 N.W. 900

BEIDMAN

v.GOODELL AND OTHERS.

Supreme Court of Iowa.

Filed October 5, 1881.

Appeal from Van Buren circuit court.

Action to foreclose a mortgage executed by the defendants J. G. and Abigail O. Goodell. The defendants do not deny the indebtedness, but resist the foreclosure of the mortgage, alleging that the plaintiff, for a valuable consideration, agreed to release the mortgage. The original indebtedness was due to one Swazy. For this indebtedness J. G. Goodell executed his promissory note, and to secure it he executed the mortgage in suit; A. O. Goodell, his wife, joining with him in the mortgage. Afterwards the note was sold and transferred to the plaintiff, Beidman. It not being paid when due, and some interest being delinquent, the plaintiff desired to have the note renewed and a note given for the interest. Two notes were accordingly given,--that for the principal being payable one day after date, and that for the interest being payable on demand. The new notes were signed not only by J. G. Goodell, the maker of the original note, but by his wife also, A. O. Goodell, who had not signed the original note. They aver that in consideration of Mrs. Goodell's signature to the new notes, the plaintiff agreed to release the mortgage. The transaction in which the old note was surrendered to J. G. Goodell and the new notes were taken, was conducted on the part of the plaintiff by an attorney, one Henry Benson. Whatever agreement, if any, was made for a release of the mortgage was made by Benson. The mortgaged land has been conveyed by the mortgagors to their son, Flagg Goodell. He joins with them in resisting the foreclosure, setting up the alleged release. The court rendered judgment for the amount of the notes against J. G. and A. O. Goodell, and denied the foreclosure. The plaintiff appeals.G. W. Ringer and Work & Brown, for appellant.

Knapp & Beaman and Henry Benson, for appellees.

ADAMS, C. J.

Wheather Benson was authorized to agree to a release of the mortgage is one of the questions in dispute. There is no evidence that he was, unless Benson's testimony may be regarded as such evidence. While he says that he has no remembrance of being authorized to agree to such release, yet he says that if he told Mrs. Goodell that the mortgage was to be released, then he was authorized to say so. He was first asked if he would have made an unauthorized statement to induce Mrs. Goodell to sign the notes, to which he replied that that was not his way of doing business. His testimony then, as to his authorization, is based simply upon this theory, and not upon any remembrance of the fact. The plaintiff's testimony was taken by deposition, and he does not appear to have been asked any question...