City National Bank of Auburn, Indiana, v. Mason

• Decision Date: 21 November 1917
• Docket Number: 31408
• Citation: 165 N.W. 103,181 Iowa 824
• Parties: CITY NATIONAL BANK OF AUBURN, INDIANA, Appellant, v. M. R. MASON et al., Appellees
• Court: Iowa Supreme Court

165 N.W. 103

181 Iowa 824

CITY NATIONAL BANK OF AUBURN, INDIANA, Appellant, v. M. R. MASON et al., Appellees

No. 31408

Supreme Court of Iowa, Des Moines

November 21, 1917

Appeal from Hardin District Court.--R.M. WRIGHT, Judge.

ACTION on a promissory note resulted in judgment for the defendants. The plaintiff appeals.

Reversed.

Geo. W Ward, for appellant.

Williams & Huff, for appellees.

LADD J. GAYNOR, C. J., EVANS and SALINGER, JJ., concur.

OPINION

LADD, J.

On August 12, 1913, defendants executed their promissory note to the De Soto Motor Car Co. for $ 522.16, payable on or before January 1, 1914. The note was transferred to plaintiff on or about October 1, 1913, being indorsed "De Soto Motor Car Co., per L. A. Miller." 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.

I. The instructions were not objected to, and therefore criticisms thereof may not be considered. State v. Nott, 168 Iowa 617, 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. Illinois Cent. R. Co., 169 Iowa 337, 151 N.W. 387; Parkhill v. Bekin's Van & Storage Co., 169 Iowa 455, 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 Prod. Co. v. Davenport V. & P. Works, 172 Iowa 683, 154 N.W. 1031; Joyner v. Interurban R. Co., 172 Iowa 727, 154 N.W. 936; Johnson v. Bernstein, 178 Iowa 1052, 155 N.W. 266; Pengilly v. Southern Land Co., (Iowa) 157 N.W. 146 (not officially reported); Gilman v. McDaniels, 177 Iowa 76, 158 N.W. 459; Hanson v. City of Anamosa, 177 Iowa 101, 158 N.W. 591; Sawyer v. Hawthorne, 178 Iowa 407, 158 N.W. 665; Berry v. Hardin, 178 Iowa 165, 159 N.W. 669; Rule v. Carey, 178 Iowa 184, 159 N.W. 699; Cohen v. Hayden, 180 Iowa 232, 157 N.W. 217; Chumbley v. Courtney, 181 Iowa 482.

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. Paxson v. Nields, 137 Pa. 385 (21 Am. St. 888, 20 A. 1016); Seager v. Drayton, 217 Mass. 571 (105 N.E. 461); Wheelock v. Berkley, 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.

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.

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 Co., a sales and manufacturing company, saying that he had disposed of 9 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 send it to them; that he would not sell or dispose of the note in the meantime; that the factory was to be at Auburn, Indiana. In reliance on what he said, the 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, Indiana, in October, 1914, and that "the De Soto Motor Car Company never built no factory and had no manufacturing plant that I know of. * * * I do not know whether or not the De Soto Motor Car Company had any factory at any time;" and that it had no office or place of business that he could learn of; and he based this testimony...