Blakesburg Savings Bank v. Blake
| Citation | 223 N.W. 895,207 Iowa 843 |
| Decision Date | 05 March 1929 |
| Docket Number | 39209 |
| Parties | BLAKESBURG SAVINGS BANK, Appellant, v. LOUIS BLAKE et al., Appellees |
| Court | United States State Supreme Court of Iowa |
Appeal from Wapello District Court.--GEORGE W. DASHIELL, Judge.
This was an action to recover the balance due on a promissory note. The defense was a plea of payment and a counterclaim for property sold. After a trial to the jury, a verdict was returned for the defendants, and the plaintiff appeals.
Affirmed.
Heindel & Hunt, for appellant.
Thomas J. Bray, for appellees.
Louis Blake, one of the appellees, was a merchant at Blakesburg, and the appellee Zella M. Blake is his wife. Hereinafter, the term "appellee" will be applied to Louis Blake alone, because the subject of the discussion only incidentally includes Zella M. Blake.
During the conduct of his business, appellee became indebted to the appellant, Blakesburg Savings Bank. In addition to the foregoing obligations, appellee owed money to various other creditors. On October 9, 1924, appellee transferred to appellant a promissory note in the principal sum of $ 1,582, executed by Marion Bailey and Lorena Bailey, together with a mortgage securing the written promise to pay. Guarantee of the Bailey indebtedness was made by appellee. Furthermore, at that time appellee was obligated to the bank on two other notes, in the amounts of $ 4,825 and $ 400, respectively. Thus, the total liability of appellee to appellant, on October 9th, was $ 6,807.
Immediately, appellee commenced selling the appellant property, for the purpose of reducing the financial burden. So, in August, 1924, a livery barn and lot were transferred by appellee to appellant, for the consideration of $ 500, which sum was credited on the above amount due. Apparently appellee was not able to liquidate, and on October 9, 1924, Walter Abegg called appellee over to the appellant bank, for the purpose of discussing the financial situation. Concerning what was said and done there is in dispute. Each litigant has his own version. Testimony on the part of appellee tends to prove the following facts: Abegg was appellant's managing officer. At the inception of this conference, appellant, through Abegg, demanded full payment of the entire amount due. Appellee said that he could not meet the demand. A suggestion was made by Abegg that appellee borrow sufficient money elsewhere, but again appellee announced his inability so to do. Then a final and more threatening demand was made by appellant, through its officer aforesaid, which prompted appellee to suggest that it would be necessary for him to go through bankruptcy. This was not to appellant's liking, and the managing officer, Abegg, intimated to appellee that creditors in a bankruptcy proceeding will obtain but little from the trust assets, as the attorneys involved would consume most of the funds in fees, costs, and expenses. Whereupon, appellee expressed the opinion that the only way he could satisfy appellant's claim was by selling the store. Pursuing this scheme for such sale, appellee stated that he would be glad to have appellant procure a buyer. Resultantly, appellant expressed its willingness to purchase part of appellee's property itself, and, as will hereinafter be seen, negotiated for and bought the remainder thereof. The first portion of appellee's property thus purchased by appellant, as indicated, was the store building and lot, for $ 1,000, and the fixtures in the store for $ 600. All that was credited upon the indebtedness aforesaid.
Inquiry then was made by appellant concerning the value of the merchandise, and appellee estimated the same at $ 6,000. Succeeding this, Abegg said to appellee that he did not believe the stock worth that much, but appellee replied that he had been carrying a $ 15,000 stock. Appellant, through Abegg, then asked concerning the price appellee would make. Response to that inquiry on appellee's part was to the effect that he would make "a real price." That proposal caused appellant's representative, Abegg, to suggest that he might buy the property himself, for the bank. Consequently, appellant and appellee agreed that an invoice should be made of the stock, and if the amount thus appraised was satisfactory, a sale would result. If, on the other hand, the total value thus found was not to appellant's liking, then, according to appellee, there was to be no contract. However, appellant asserts, contrary to appellee's claim, that in such event the stock was "to be disposed of at the best advantage possible for the benefit of the creditors."
Accordingly, an invoice was made by appellee, his clerk, Ida Tubaugh, and a Miss Frederick, who was working in another store. Said latter valuer was employed at the suggestion of appellant. Within a few days, the invoicing was completed. During the progress of making the valuation, appellant prepared a deed for the lot above mentioned, and a bill of sale for the fixtures and merchandise. These instruments were signed by appellee and his wife, and the delivery thereof made to appellant. Neither party, however, relies upon that bill of sale in the present litigation, because it did not make an absolute disposition of the merchandise stock being invoiced, but rather, future disposal thereof was dependent upon whether or not the valuation of the goods was satisfactory to appellant.
When the invoice was completed, it was found that the merchandise was worth approximately $ 6,178.58. As soon as the invoice was finished, Abegg, acting for appellant, took the same to an adding machine, for the purpose of making a total. Shortly after doing this, Abegg went to the store, and delivered a copy of the adding machine figures to appellee. While so doing, appellant asked appellee for the door keys and the combination to the safe. Such information concerning the safe was given appellant by appellee, and the keys were immediately delivered, in accordance with the request. Moreover, appellant employed the said Ida Tubaugh to operate the store, and, on the occasion just mentioned, he said to her, in the presence of appellee: Thereupon, the bank took possession of all the property, and operated the business under the following name: "Farmers' Cash Store." Throughout the negotiations, appellant had a list of appellee's creditors, and promised to pay all obligations to third persons, in the event the property aforesaid was purchased. Included within the foregoing proposition, in addition to the liquidation of third-party debts, appellant consented to satisfy and discharge all financial claims which it had against appellee.
By way of answer to appellant's petition, appellee, in accordance with his theory, filed a counterclaim for the balance of the property sale price above named, after allowing credit for the indebtedness due the bank and moneys paid out by it to appellee's creditors. On the other hand, it was appellant's claim that it agreed to take over the stock of goods above described, and pay appellee's debts in the sum of $ 1,296, on the basis of 75 cents on the dollar. Also, appellant urged that, under the contract, appellee was to pay all other indebtedness, including $ 1,000 to Abegg. Consistent with its contention, appellant instituted suit against appellee to recover $ 420.81, alleged to be an amount paid on appellee's indebtedness in excess of the agreed assumption thereof.
Thus in a general way have been stated the broad issues between the parties. Manifestly, the jury found the facts in accordance with appellee's contention, and a verdict was returned by that body against the appellant. Unless the result can be obviated because of the errors alleged, the verdict and judgment thereon must stand. Appellant's exceptions will now be considered in the order made.
I. It is first urged by appellant that there is a variance between the pleading and the proof. To more definitely particularize, appellant says that appellee declared upon an express contract, but established an implied one only. Basis for this argument is alleged to be in the following declaration found in the counterclaim, to this effect: "Contract in parol." For the purposes of this discussion, we assume, without deciding, that a "contract in parol" does not include an implied contract. Was there, then, a variance between the pleading and the proof? We think not.
Implication was not required, to complete the agreement between appellant and the appellee. An offer was made by appellee to sell the merchandise before described at the invoice price. According to appellee's version, appellant...
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Blakesburg Sav. Bank v. Blake
... ... Blake, is his wife. Hereinafter the term appellee will be applied to Louis Blake alone, because the subject of the discussion only incidentally includes Zella M. Blake.During the conduct of his business, appellee became indebted to the appellant, Blakesburg Savings Bank. In addition to the foregoing obligations, appellee owed money to various other creditors. On October 9, 1924, appellee transferred to appellant a promissory note in the principal sum of $1,582, executed by Marion Bailey and Lorena Bailey, together with a mortgage securing the written promise ... ...