Blain v. Johnson
Decision Date | 09 April 1926 |
Docket Number | 36905 |
Citation | 208 N.W. 273,201 Iowa 961 |
Parties | W. E. BLAIN, Appellee, v. C. A. JOHNSON, Appellant |
Court | Iowa Supreme Court |
Appeal from Shelby District Court.--EARL PETERS, Judge.
Action on promissory note. Plea of want of consideration. Directed verdict for plaintiff. Defendant appeals.
Reversed.
E. E Wagner and White & White, for appellant.
Cullison & Cullison and Bennett Cullison, for appellee.
The sole defendant is C. A. Johnson, father of Louis E. Johnson. On March 1, 1920, Louis and wife executed to plaintiff a note and mortgage for $ 5,000, due March 1, 1925, with interest payable annually. The note contained no acceleration clause. The mortgage did. The defendant had nothing to do with the original transaction. He paid the interest one year, on account of his son's having a crop failure. Plaintiff called on the defendant and his wife, to get them to sign the note, about March 1, 1923. The only testimony concerning the transaction is that given by the defendant and his wife. Defendant testified:
On cross-examination, defendant testified:
Defendant's wife testified that plaintiff asked her to sign.
On cross-examination, she testified:
The defendant at this time put his name upon the note. His wife did not. On the 7th day of March, 1923, Louis Johnson sent to plaintiff the interest that was due March 1, 1923. The petition in the present suit was filed May 17, 1924, and originally asked for the full amount of the principal and interest against C. A. Johnson. The original makers are residents of South Dakota. The mortgage was set out in the petition, and the principal was claimed to be due, on account of the acceleration clause in the mortgage. The claim for the principal, however, was stricken out by the court.
The defendant pleaded want of consideration. The court directed a verdict against him. The only consideration claimed by the plaintiff in argument here is: first, that there was an agreement for forbearance; second, that the addition of defendant's name to the note was an alteration which discharged the original makers.
I. We take up first the claim of an agreement for forbearance. There is no evidence that defendant requested forbearance, or that forbearance was mentioned in terms. Plaintiff was threatening foreclosure, not unless the defendant signed the note, but unless the interest was paid. Nothing was said about defendant's paying the interest, except by implication in asking him to sign the note. The interest, according to the note, was already due; so that no implication of agreement to forbear would result from signing the note. The mortgage provides that, in case of default in payment of interest, the principal at the option of the holder, should become due. It does not appear either that plaintiff had exercised this option or precluded himself from doing so. He did not say he would forbear, or waive his right to enforce payment of the whole amount, or that he would not foreclose. For all that appears, unless an agreement may be implied, plaintiff might have sued or foreclosed immediately, notwithstanding defendant's having signed the note. Queal & Co. v. Peterson, 138 Iowa 514, 116 N.W. 593; Zimbelman & Otis v. Finnegan, 141 Iowa 358, 118 N.W. 312; Green Bay Lbr. Co. v. Frederickson, 197 Iowa 70, 76, 196 N.W. 790; Watt v. German Sav. Bank, 183 Iowa 346, 165 N.W. 897; 13 Corpus Juris 348. It cannot be said, as a matter of law, that there was an implied agreement for forbearance. Whether the jury might have found an implied agreement, we need not discuss; for it is not likely that the case on retrial will be submitted on the same evidence.
II. It is argued here that the addition of defendant's name to the note was a material alteration which discharged the original makers, and that this was a consideration for defendant's signature. Plaintiff does not claim, of course, that the alteration was fraudulent. The only theory upon which the addition of defendant's name to the note can be held to discharge the original makers, and so afford the consideration for defendant's signature, is that expressed in Rhoades v. Leach, 93 Iowa 337, 339, 61 N.W. 988, in which it is said:
"The cases are placed upon the ground that the addition of another name to a note is a material alteration, which will discharge the original parties not consenting thereto, and without inquiry whether the alteration is injurious or beneficial to them, and that the person so executing the note makes it his own, and that it is, in effect, the execution of a new note."
See Browning v. Gosnell, 91 Iowa 448, 59 N.W. 340; Dickerman v. Miner, 43 Iowa 508. In the latter case it is said:
The plaintiff's petition, the plaintiff's cross-examination of defendant's witnesses, the plaintiff's argument in this court, and his first claim of consideration, which has been discussed, are...
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