Callanan v. Williams

• Decision Date: 14 March 1887
• Citation: 71 Iowa 363,32 N.W. 383
• Parties: CALLANAN AND OTHERS v. WILLIAMS AND OTHERS.
• Court: Iowa Supreme Court

71 Iowa 363

32 N.W. 383

CALLANAN AND OTHERS

v.WILLIAMS AND OTHERS.

Supreme Court of Iowa.

March 14, 1887.

Appeal from district court, Taylor county.

Action on three promissory notes and to foreclose a mortgage. A demurrer to the answer was overruled, and the plaintiffs appeal.J. J. Davis, for appellants.

Flick & Jones, for appellees.

SEEVERS, J.

The following is a copy of one of the notes upon which the action was brought:

+-------------------------------------------------------------+
                ¦“$180.¦REAL ESTATE, LOAN, AND EXCHANGE OFFICE OF N. B. MOORE.¦
                +-------------------------------------------------------------+
                

CLARINDA, IOWA, November 1, 1880.

One year after date I promise to pay to the order of N. B. Moore one hundred and eighty dollars, with ten per cent. interest from date, payable annually at the office of N. B. Moore, in Clarinda, Iowa, and, if not paid when due, the interest to draw the same per cent. after due as the original note, and, if collected by suit, a reasonable attorney's fee. Value received.

J. T. WILLIAMS.”

The other two notes are in all respects like the foregoing, except that one is payable in one and the other in two years after date. It is stated in the petition that the notes were indorsed and transferred by the payee, before maturity, to an innocent holder, from whom the plaintiffs obtained the notes. The defendants admitted the execution of the notes and mortgage, denied they were indebted in the amount claimed in the petition, and pleaded that on the first day of October, 1881, the maker paid the note above set out to N. B. Moore, at his office, at Clarinda, Iowa, and that on the fifteenth day of April, 1882, the maker paid the full amount due on the two last-described notes to N. B. Moore, at his office, at Clarinda, Iowa; that said Moore has possession of said money at his said office to pay said notes when presented at said place; that, when said money was paid, Moore represented that the notes had been lost or mislaid, and he canceled the mortgage to secure the same, and then and there agreed with said Williams to take up and pay said notes in full at their maturity, or when presented at his office; and he now holds said money, but said notes have never been presented for payment at said office. A demurrer to the answer was overruled.

1. Counsel for the appellees insist that the court did not err in overruling the demurrer, because a general denial was pleaded, and the demurrer was to the whole...