Cleophas v. Walker
| Decision Date | 18 November 1930 |
| Docket Number | No. 40206.,40206. |
| Parties | CLEOPHAS v. WALKER ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Worth County; M. F. Edwards, Judge.
This was a proceeding by the plaintiff to have a claim allowed against the estate of C. H. Walker, deceased, and set aside certain conveyances of real estate belonging to the estate, in order that the aforesaid claim might be satisfied therefrom. The claim grew out of two promissory notes, whereon the plaintiff was payee, one H. O. Haugen the maker, and the decedent, C. H. Walker, surety. After a hearing, the district court disallowed plaintiff the relief asked, and consequently he appeals.
Affirmed.Senneff, Bliss, Witwer & Senneff, of Mason City, for appellant.
W. H. Salisbury, of Osage, for appellees.
On July 19, 1919, H. O. Haugen and C. H. Walker executed two promissory notes, payable to the plaintiff-appellant, C. Cleophas, at the Kensett Bank, Kensett, Iowa, in the amounts of $4,260.57 and $5,000, respectively, together with interest. These notes were renewals of original notes given perhaps as early as 1909. The appellant all that time was a banker at Kensett. H. O. Haugen, who signed the foregoing notes, was the son-in-law of the other signer, C. H. Walker, and a nephew of appellant's sister.
Haugen, it seems, had worked in appellant's bank at Kensett. In 1909, however, Haugen moved to the state of Washington. Before leaving for Washington, Haugen, together with his wife, Harriette, and his father-in-law, C. H. Walker, went to appellant's bank and arranged to borrow the money represented by notes, the renewal of which are the notes in question. Appellant refused to loan the money to H. O. Haugen unless the father-in-law, C. H. Walker, signed the notes as surety. When the original notes became due, the present renewal notes were executed in lieu thereof, and thereon H. O. Haugen again was the maker and his father-in-law, C. H. Walker, the surety.
No claim is made in the present controversy that it was improper for the defendants-appellees to prove that C. H. Walker was in fact a surety on the notes in question. All the money represented by the foregoing loan went to and was used by H. O. Haugen in Washington. There is no serious dispute of the fact, and, in effect, it is conceded that Walker was a surety. Walker, the surety, died April 16, 1926. C. A. Walker, a son of C. H. Walker, deceased, is the executor of his father's estate. Julia E. Walker is the surviving widow of C. H. Walker, deceased. Harriette W. Haugen and Alice E. Jolliffe are the daughters of said Walker. Those named persons are the defendants and appellees.
This suit was commenced on July 14, 1927, for the purpose of having the foregoing notes allowed as claims against the Walker estate, and also to set aside certain real estate conveyances in order that the alleged debt might be paid therefrom. Appellees, for a defense to the appellant's claim, alleged and sought to prove that C. H. Walker, before his death, and after the foregoing notes became due, duly served a notice in writing upon the appellant pursuant to the statute then in force, requiring the appellant “to sue on the obligation” or permit him, as surety, to do so. Upon the subject under consideration, the 1897 Code of Iowa, then in effect, provides:
[1] I. In order to prove the contents and service of such notice, appellees avail themselves of oral testimony. It appears that the appellees do not have in their possession a copy of the notice, and the appellant denied receiving the original or a copy thereof. Hence, the appellant failed to produce the same for appellees use at the trial. That notice was served, it is alleged, in 1922. Under those circumstances it was proper for the appellees to introduce oral testimony for the purpose of showing the contents of the notice served. Kerr v. Topping, 109 Iowa, 150, 80 N. W. 321;Borden v. Isherwood, 120 Iowa, 677, 94 N. W. 1128.
[2][3] Likewise it was permissible for appellees to prove the service of the notice by oral testimony. Des Moines v. Casady, 21 Iowa, 570;Farrell v. Leighton, 49 Iowa, 174;Markley v. Telegraph Co., 144 Iowa, 105, 122 N. W. 136, 138 Am. St. Rep. 263;In re Estate of Schultz, 192 Iowa, 436, 185 N. W. 24;McLenon v. Kansas City, St. Joseph & Council Bluffs Railway Co., 69 Iowa, 320, 28 N. W. 619;Shawhan v. Loffer, 24 Iowa, 217. Conceding in effect that the law is as above stated, appellant seeks to avoid appellees' defense on the theory that their proof was insufficient. Such proof appellant declares must be “clear, cogent, unequivocal, and satisfactory.” Stewart v. Todd, 190 Iowa, 283, 173 N. W. 619, 180 N. W. 146, 20 A. L. R. 1272;Queen v. Queen, 116 Ark. 370, 172 S. W. 1018, Ann. Cas. 1917A, 1101;Slaughter v. Cornie Stave Co., 172 Ark. 952, 291 S. W. 69;Scurry v. City of Seattle, 56 Wash. 1, 104 P. 1129, 134 Am. St. Rep. 1092. With the requirement in regard to the proof requisite, we agree with the appellant. Said proof must be clear, positive, convincing, and satisfactory. Tested by that standard, it is now to be determined whether appellees' proof was sufficient.
H. O. Haugen, the maker, was quarreling with his wife, a daughter of C. H. Walker, deceased. The note was past due and had not been paid. Neither had the note been renewed, or otherwise met, as required by good business. C. H. Walker, the surety, then living, in 1922, dictated, and finally personally presented, the notice, above described, to the appellant in his bank at Kensett. To prove this fact, the appellees offered the following evidence:
Charles A. Walker, the son, declared:
Harriette W. Haugen, the surety's daughter, claims to have been the scrivener who prepared the notice for her father. Mr. Walker read law and possessed Miller's Code of 1888. While dictating the notice, it is alleged by Harriette that her father had the Miller's Code before him. So far as material, the provision in regard to the service of notice by surety upon the payee of the note is the same in Miller's Code as in the 1897 Code. When testifying, Harriette said:
“The notice was addressed to Mr. C. Cleophas (appellant) at Kensett, and it described these two notes, stating that Mr. Cleophas (appellant) held the two notes described, and that they were against H. O. Haugen, and C. H. Walker, and he (C. H. Walker) claimed that he was the surety for H. O. Haugen. He (C. H. Walker) demanded that Mr. Cleophas (appellant) bring an action, bring suit, I believe was his word, against H. O. Haugen and himself (C. H. Walker), or allow him (C. H. Walker) to do it at his (C. H. Walker's) own expense, in the name of Mr. Cleophas (appellant), and if Mr. Cleophas (appellant) did not comply with his (C. H. Walker's) request within ten days, that he (C. H. Walker) considered that he (C. H. Walker) would be released from all financial obligation on these two notes.
Q. Did you write that notice more than once? A. I did.
Q. What was the final correction which you made on the notice? A. Well, he (C. H. Walker) brought me his Code of Iowa, and had me copy something out of the Code of Iowa.
Q. Your father frequently studied the Code of Iowa? A. He did.
Q. He always had a copy of it in his possession? A. He did.
Q. I am showing you now sections 2108 and 2109 of the Revised Code of Iowa, known as Miller's Code, dated July 4, 1888, and I will ask you if those are the two sections you copied into that notice? A. They are.
Q. When you had written the notice the final time and embodied these sections, in addition to what you have stated, what did you do with the notice? A. I gave it to my father C. H. Walker.”
This notice was thus written by Harriette for her father, it is claimed, in her father's dining room at Northwood. First the dictation was taken by Harriette in longhand and afterwards transcribed by her on the typewriter.
Dr. Clough, who is acquainted with the Walker family, and lived in Florida, testified:
“Q. And your profession is what? A. Physician. I was at Northwood in the summer of 1922 staying at the home of C. H. Walker who I had known about all my life. I was raised near the same town in the same county that Mr. Walker (the surety) was raised. I was just there visiting the Walkers.
Q. Were you at that time studying medicine? A. I was taking a graduate course at Minneapolis Physio-Therapy school.
Q. Had you at that time made any study of law? A. Well, yes, some, at the Blackstone School at Chicago for my own use only, however. I was engaged in the study of...
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