Chumbley v. Courtney

• Citation: 181 Iowa 482,164 N.W. 945
• Decision Date: 27 October 1917
• Docket Number: No. 31811.,31811.
• Parties: CHUMBLEY v. COURTNEY ET AL.
• Court: Iowa Supreme Court

181 Iowa 482

164 N.W. 945

CHUMBLEY

v.COURTNEY ET AL.

No. 31811.

Supreme Court of Iowa.

Oct. 27, 1917.

Appeal from District Court, Warren County; Loren N. Hayes, Judge.

Action on a promissory note resulted in a judgment as prayed. The defendant Daniel O'Donnell appeals. Affirmed.Neiman & Neiman, of Des Moines, for appellant.

Berry & Watson, of Indianola, for appellee.

LADD, J.

[1][2] This is an action on a promissory note dated May 9, 1914, for $400, payable with interest March 1, 1915, and purports to have been signed by “Courtney & O'Donnell, per Courtney. I. C. Walker.” The purported partnership as well as the individual members and Walker were defendants. After answering, O'Donnell filed a motion for change of venue to Polk county on the ground that that was the county of his residence, and that his sworn answer alleged fraud in the inception of the note sued on and constituted a complete defense as appears from said answer. As the other defendants are not shown to have been nonresidents of Warren county, the motion could not well prevail on the sole ground of defendant's residence in Poke county. Section 3501, Code. Nor is the other ground tenable. The note on which the action was brought contained no stipulation that it be performed in Warren county. Without this the circumstance that fraud in the inception of the note was alleged furnished no ground for a change of venue under paragraph 6 of section 3505 of Code Supp. 1913, providing that a change of venue may be had in any case where the action is “brought on a written contract in the county where the contract by its express terms is to be performed, in which defendant in said action, residing in a different county in the [said] state, has filed a sworn answer alleging fraud in the inception of the contract constituting a complete defense thereto.” The motion for change of venue was rightly overruled.

[3] II. The defendant complains of the court's refusal to give four instructions requested. The first and second of these in so far as correct were given. The error in each was in assuming that a partner in a nontrading partnership could only be bound by the act of the other in executing a promissory note by attaching the firm name thereto where he has an express order of the other partner so to do. On the contrary, such authority may be implied from the circumstances proven, and in this case the jury might have found from the circumstances proven that, in signing the note, Courtney was authorized by O'Donnell to use the firm name. For this reason the instructions were rightly refused. See Schumacher v. Sumner Telephone Co., 161 Iowa, 326, 142 N. W. 1034, Ann. Cas. 1916A, 201.

[4] There was no evidence whatever that the payee of the note had any information as to whether the transaction was a partnership one of Courtney & O'Donnell or an individual deal of Courtney, and for this reason the refusal of the third instruction is approved. The fourth instruction was, in substance, that if a partnership existed, and its principal business was earning commissions by dealing in land, there could be no recovery. This was rightly refused for that. This eliminated the possibility of a finding that O'Donnel consented to or authorized the use of the firm name in the signing of the note. There was no error in the refusal to give instructions requested.

[5] III. Several of the instructions given are assailed in argument, but the errors relied on may not be considered. Section 3705a of the Code Supp. 1913 requires that “all objections or exceptions thereto must be made before the instructions are read to the jury and must point out the grounds thereof specifically and with reasonable exactness; but upon a showing in the motion for new trial that an error in such instruction was not discovered by the party claiming the error at...