City Nat. Bank of Auburn v. Mason
| Decision Date | 21 November 1917 |
| Docket Number | No. 31408.,31408. |
| Citation | 165 N.W. 103,181 Iowa 824 |
| Parties | CITY NAT. BANK OF AUBURN, IND., v. MASON ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Hardin County; R. M. Wright, Judge.
Action on a promissory note resulted in judgment for the defendants. The plaintiff appeals. Reversed.George W. Ward, of Eldora, for appellant.
Williams & Huff, of Eldora, for appellees.
On August 12, 1913, defendants executed their promissory note to the De Soto Motor Company for $522.16, payable on or before January 1, 1914. The note was transferred, being indorsed, “De Soto Motor Car Co., per L. A. Miller,” to plaintiff on or about October 2, 1913. It was given in renewal of one of the two notes, of $500 each, executed in August, 1912; the other renewal having been paid. Defendants pleaded (1) that the original notes were without consideration, and (2) that one Field obtained said notes through the perpetration of fraud on the defendants; and these issues were submitted to the jury.
[1] The instructions were not objected to and therefore criticisms thereof may not be considered. State v. Nott, 168 Iowa, 619, 149 N. W. 79;State v. Piernot, 167 Iowa, 353, 149 N. W. 446;State v. Cooper, 169 Iowa, 571, 151 N. W. 835;Thomas v. I. C. Ry. Co., 169 Iowa, 337, 151 N. W. 387;Parkhill v. Storage Co., 169 Iowa, 468, 151 N. W. 506;State v. Fisher, 172 Iowa, 462, 154 N. W. 587;State v. Stanton, 172 Iowa, 477, 154 N. W. 762;American Fruit Product Co. v. Davenport Vinegar & Pickling Works, 172 Iowa, 683, 154 N. W. 1031;Joyner v. Railway Co., 172 Iowa, 727, 154 N. W. 936;Johnson v. Bernstein, 155 N. W. 266;Pengilly v. Southern, Land Co., 157 N. W. 146;Gilman v. McDaniels, 158 N. W. 459;Hanson v. Anamosa, 158 N. W. 595;Sawyer v. Hawthorne, 158 N. W. 665;Berry v. Hardin, 159 N. W. 669;Rule v. Carey, 159 N. W. 700;Cohen v. Hayden, 163 N. W. 238;Chumbly v. Courtney, 164 N. W. 945, decided at present session.
[2] II. One of the defendants, Mason, was asked to “tell the jury what the conversation was that you had with L. M. Field at the time and place.” An objection as immaterial and incompetent was overruled. The point made in the brief is that evidence that the note was payable only upon conditions not expressed in the note was not admissible. It is enough to say that no evidence of that kind was sought to be elicited. The evidence was tendered in order to prove want of consideration of the original notes and that these were obtained by misrepresentations on the part of Field. The law is well settled that, if a promissory note is without consideration, a renewal thereof, even though extending the time of payment, also is without consideration. Paxon v. Nields, 137 Pa. 385, 20 Atl. 1016, 21 Am. St. Rep. 888;Seager v. Drayton, 217 Mass. 571, 105 N. E. 461;Wheelock v. Berkeley, 138 Ill. 153, 27 N. E. 942; 8 C. J. 218, and cases cited in note. The note sued on, then, stands in place and stead of the original note, and is subject to like defenses, and the evidence bearing on the want of consideration of the original notes, tending to establish fraud in their inception, was admissible.
[3] III. The court instructed the jury that the burden of proof was upon the defendants to show that plaintiff took the note with notice of the want of consideration, and it is insisted that the record was without evidence bearing thereon. We have been unable to discover any such evidence in the record, and because of its absence are of the opinion that this issue ought not to have been submitted to the jury.
[4] IV. The defendants testified in substance that Field approached them with the proposition that they purchase a share of stock in a company to be organized, known as the De Soto Motor Car Company, a sales and manufacturing company, saying that he had disposed of nine shares, of the par value of $1,000 each, and the one offered was the last; that he would guarantee a dividend of 8 per cent. annually; that he would retain their notes given for the stock until the company was organized and the stock certificate issued and sent to them; that he would not sell or dispose of the note in the meantime; that the factory was to be at Auburn, Ind. In reliance on what he said, two notes of $500 each were given. Neither the share of stock nor any other thing of value was ever received by either defendant, nor has either demanded the share of stock. The only evidence of the falsity of these representations is that of Mason, who swore to being in Auburn, Ind., in October, 1914, and that “the De Soto Motor Car Company never built no factory and had no...
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