Brewster v. Reel
| Decision Date | 22 May 1888 |
| Citation | 74 Iowa 506,38 N.W. 381 |
| Parties | BREWSTER v. REEL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from superior court of Council Bluffs.
Action to recover the possession of personal property of the agreed value of $2,150. The case was tried to the court, and judgment rendered for defendant. The plaintiff appeals.Smith & Harl, for appellant.
Wright, Baldwin & Haldane, for appellee.
On the 18th day of November, 1885, the copartnership of P. C. & W. D. Kirkland was engaged in business in the city of Council Bluffs, and owned the stock of goods in controversy. P. C. Kirkland, a member of the firm, was at that time indebted to plaintiff. On the day named the plaintiff telegraphed from Kansas to a law firm in Council Bluffs to “attach or secure my claim against P. C. Kirkland.” Members of the firm, which received the dispatch on the day it was sent, procured from P. C. & W. D. Kirkland a bill of sale covering their stock in trade, which included the property in controversy. The bill of sale was in favor of plaintiff, was executed by W. D. Kirkland in the name of the firm, and was recorded on the day of its date. After it was recorded, the defendant, as sheriff, levied upon the property in question, and subsequently sold it, and applied the proceeds to the payment of a judgment against W. D. Kirkland. Plaintiff seeks to recover by virtue of the bill of sale.
1. The assignment of errors presents for our consideration the correctness of the rulings of the superior court in admitting certain testimony. It was contended by defendant that there was no consideration for the bill of sale; that it never had a legal existence, and was never in fact delivered. The testimony to which objection was made, in fact, tended to show that the bill of sale was given on account of the personal debt of P. C. Kirkland, without his consent or knowledge. It also tended to show that, during the conference which led to the execution of the bill of sale, the attorneys for plaintiff told W. D. Kirkland that it was their desire to secure for plaintiff whatever interest P. C. Kirkland had in the stock; that the bill of sale should be given only to secure to plaintiff any claim which P. C. Kirkland might have in the goods after the creditors of the firm and W. D. Kirkland, Jr., had been paid their claims; and that the bill of sale was given pursuant to these propositions. As we understand the record, this evidence was objected to on the ground that it sought to vary and contradict the terms of a contemporaneous written instrument. It is evident that parol evidence would not be competent to give to the instrument the effect which seems to have been contemplated in the preliminary negotiations; but it was competent as tending to show, in connection with other evidence, that the instrument never in fact had a legal existence. Bowman v. Torr, 3 Iowa, 573; 1 Greenl. Ev. § 284; 2 Whart. Ev. § 927, and notes; 2 Tayl. Ev. § 1135. While it is true, as a rule, that each partner is authorized to act for and in the name of the firm, yet his power to do so is limited to matters within the scope and ordinary business transactions and purposes of the copartnership....
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