Briggs v. Yetzer

• Decision Date: 20 October 1897
• Citation: 72 N.W. 647,103 Iowa 342
• Parties: FRED. E. BRIGGS v. J. C. YETZER, et al., Appellees, and CLAUS H. CLAUSEN, Appellant
• Court: Iowa Supreme Court

72 N.W. 647

103 Iowa 342

FRED. E. BRIGGS v. J. C. YETZER, et al., Appellees, and CLAUS H. CLAUSEN, Appellant

Supreme Court of Iowa, Des Moines

October 20, 1897

Appeal from Cass District Court.--HON. N.W. MACY, Judge.

JUDGMENT by confession was duly entered in favor of the plaintiff and against the Cass County Bank, J. C. Yetzer, and Isaac Dickerson, December 23, 1893, for the sum of three thousand and eighty-six dollars and sixty-seven cents, and execution issued thereon, and certain land belonging to Yetzer sold. Claus H. Clausen obtained judgment against Yetzer and Dickerson February 14, 1894, and, on November 26 of the same year, filed his motion asking that the plaintiff's judgment and sale thereunder be set aside. The motion was over-ruled, and Clausen appeals.

Affirmed.

Willard & Willard and De Lano & Meredith for appellant.

J. B Rockafellow for appellees.

OPINION

LADD, J.

The statement of facts out of which the indebtedness arose is in these words: "On the eighteenth day of August, 1893, the Cass County Bank issued to Geo. E. Pennell a certificate of deposit in the sum of three thousand dollars, in words and figures to-wit: 'Cass County Bank. $ 3,000. Atlantic Iowa August 18, 1893. Geo. E. Pennell has deposited in this bank three thousand dollars, payable to himself, in current funds, on the return of this certificate, four months after date, with interest at the rate of eight per cent. per annum until due only. A. W. Dickerson, Cashier.' And on the back of said certificate is the following: 'We hereby guarantee and waive protest and notice of protest, payment of the within certificate of deposit. J. C Yetzer. Isaac Dickerson.' And the following transfer: 'Pay to the order of Fred E. Briggs. [Signed] Geo. E. Pennell.' 'There is now justly due said plaintiff on said certificate of deposit the said sum of three thousand, eighty-six and 67-100 dollars. J. C. Yetzer. Isaac Dickerson.'" The certificate indicates that it was issued for three thousand dollars deposited by Pennell. On the authority of Brown v. Barngrover, 82 Iowa 204, 47 N.W. 1082, no further detail of facts was required. But it is insisted that more ought to have been stated as to the liability of Yetzer. The guaranty is set out, and fully apprises all of the nature of the obligation. The law requires the facts to be concisely stated, so as to direct the attention of third parties to the nature and character of the consideration. It must be brief, not specific or particular. Bernard v. Douglas, 10 Iowa 370; Vanfleet v. Phillips, 11 Iowa 558. And it has been held sufficient if the transaction is identified, and a clue furnished the creditor which will enable him to start to investigate. Claflin v. Dodson, 111 Mo. 195 (19 S.W. 711); Dunham v. Waterman, 17 N.Y. 9. If the statement is full enough to enable third parties to investigate and judge of the good faith of the transaction, and sufficiently definite to fix this, then the object of the statute in requiring the statement has been met. The consideration of the security was not stated in Dullard v. Phelan, 83 Iowa 471, 50 N.W. 204, but the court held the facts sufficiently set out. Our statute is like that of New York, and in Dow v. Platner, 16 N.Y. 562, a statement of facts in these words, "My drafts on Peck, Myers and Brownson, of the city of New York, dated January 14, 1851, payable at sixty days from date, for eight hundred dollars, and indorsed by said Daniel Dow, Jr., as my surety and for my benefit," was sufficient to warrant judgment in favor of Dow. See, also, Sharp v. Railroad Co., 106 N.C. 308 (11 S.E. 530). The facts out of which the indebtedness arose were the loaning of the money to the bank, and the guaranty of its payment by Yetzer and Dickerson, and a statement to this effect was all that was required in order to comply with the statute. From these facts creditors could readily investigate and learn the character of the transaction. The cases relied on by appellant are not opposed to this conclusion. In Kern v. Chalfant, 7 Minn. 487 (Gil. 393), the consideration of the bond on which defendant was surety was not stated. The other cases construed statutes essentially different from ours. Reading v. Reading, 24 N.J.L. 358; Davidson v. Alexander, 84 N.C. 621.

II. Was the statement properly verified? It was signed by Yetzer and Dickerson, but they did not sign the annexed affidavit, and their names were not written in the jurat. The law does not require the statement to be accompanied with an affidavit. It must be signed and verified by the defendant. Code 1873, section 2896. The jurat of the notary is in the usual form, with the names of the affiants omitted. Subscribed and sworn to by whom? The very persons, and the only ones, who had subscribed to the statement. No other inference can be drawn. And such a jurat is held sufficient in Stone v. Miller, 60 Iowa 243, 14 N.W. 781; Stoddard v. Sloan, 65 Iowa 680, 22 N.W. 924; and Kirby v. Gates, 71 Iowa 100, 32 N.W. 191. Averill v. Boyles, 52 Iowa 672, 3 N.W. 731, is not in point, as, under the statute, interrogatories attached to a pleading must be verified by affidavit.

III. It is...