Bloomfield State Bank v. Seabury

• Decision Date: 25 June 1925
• Docket Number: 36509
• Citation: 204 N.W. 259,200 Iowa 37
• Parties: BLOOMFIELD STATE BANK, Appellee, v. F. R. SEABURY, Appellant
• Court: Iowa Supreme Court

204 N.W. 259

200 Iowa 37

BLOOMFIELD STATE BANK, Appellee, v. F. R. SEABURY, Appellant

No. 36509

Supreme Court of Iowa, Des Moines

June 25, 1925

Appeal from Davis District Court.--FRANCIS M. HUNTER, Judge.

ACTION against the defendant as indorser of a promissory note. A verdict returned in his favor was set aside by the court, and a new trial granted. Defendant appeals.

Affirmed.

T. A Goodson and E. Rominger, for appellant.

Buell McCash and H. C. & H. C. Taylor, for appellee.

STEVENS J. FAVILLE, C. J., and DE GRAFF and VERMILION, JJ., concur.

OPINION

STEVENS, J.

I.

This is an action against appellant as indorser upon a negotiable promissory note for $ 249 executed to him February 15, 1921, by one Norton. $ 198 of the consideration was the purchase by Norton at a public sale of some sheep belonging to appellee. The remainder of the consideration, $ 51, was evidently included in the note by mistake, as it represented the purchase price of some oats sold at the sale, in which appellant had no interest. The clerk of the sale was the cashier of appellee bank. The total amount for which the property of appellant sold at the sale was $ 751.10. A few days after the sale, appellant had a settlement at the bank, and received this sum in cash, the bank purchasing the note in controversy. Appellant alleged, and sought to introduce testimony to show, that he was induced by the fraud of the cashier to indorse the note. The fraud charged was that the cashier stated to him that the note had been taken in his name by mistake, and that it was necessary for him to indorse it, to pass title to the bank; that it was a mere formality. The court excluded the testimony as to the alleged fraud, upon the theory that the cashier of the bank, who clerked the sale, in making settlement with appellant was his agent, and not the agent of the bank. We express no opinion as to the sufficiency of the evidence, offer of which was made in the absence of the jury; but we are quite clear that, in negotiating the purchase of the note from appellant, the cashier was not his agent.

II. Appellant denied that appellee notified him of the default of the principal, as required by Sections 89, 90, and 91 of the Negotiable Instruments Law. The cashier of the bank, however testified that he placed a notice in an envelope, properly sealed, stamped, and addressed to appellant at his last known place of residence, and deposited the same in the post office on the day the note fell due. The jury found, in answer to a special interrogatory submitted to it by the court, on its own motion, that the testimony of the cashier was not true. No objection was made in the court below to the testimony of appellant that he did not receive such a notice, but it is urged upon this appeal that...