Continental National Bank of Sioux City v. Greene
| Decision Date | 07 April 1925 |
| Docket Number | 36011 |
| Citation | 203 N.W. 9,200 Iowa 568 |
| Parties | CONTINENTAL NATIONAL BANK OF SIOUX CITY, Appellant, v. CHARLIE GREENE, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED OCTOBER 2, 1925.
Appeal from Crawford District Court.--M. E. HUTCHISON, Judge.
ACTION upon a promissory note. Verdict and judgment in favor of defendant. Plaintiff appeals.
Reversed.
Burgess & Gill and W. E. Kahler, for appellant.
P. W Harding and Andrew Bell, for appellee.
STEVENS J. FAVILLE, C. J., and DE GRAFF and VERMILION, JJ., concur.
I. This is an action upon a promissory note for $ 5,700, executed March 8, 1921, by appellee to the appellant, being the third renewal of a note for like amount, executed by appellee to the Home Securities Company, a corporation, in payment of a subscription for stock. The defense pleaded is fraud in the original transaction. Although numerous rulings of the court below are assigned as error by appellant, but two of them require particular mention. The other alleged errors are either without merit, or are not likely to arise upon a retrial of the case.
Appellee in his answer set up numerous specific fraudulent representations which he alleged were made to him by the agent of the Home Securities Company, and which induced him to subscribe for the stock. The note in suit, as stated, is the third renewal note executed to appellant in lieu of the original note to the Securities Company. Appellee knew of the fraud charged, at the time the first renewal note was executed. He therefore alleged in his answer that he was induced to execute the renewal note by the false and fraudulent representations of the cashier of appellant bank that it was a bona-fide holder of the note for value, without notice of defects in the title of the Securities Company. Appellee also admitted the execution of the several notes.
The instructions placed the burden of all of the issues upon appellee, who was given the opening and closing arguments. Appellant complains of this ruling by the court. The right to open and close the argument is by the statute given to the party having the burden of the issue. The burden in this case clearly rested upon appellee. Appellee, in effect, conceded that, by the execution of the renewal note, with knowledge of the fraud, he waived the right to interpose fraud in the original transaction as a defense. It was to avoid the waiver that he pleaded fraud upon the part of the bank which induced him to execute the renewal note. In this state of the issues, the court properly placed the burden upon appellee of proving knowledge of the fraud upon the part of the officers of the bank. Appellee, having assumed the burden of all the issues, was entitled to open and close the argument. Louisa County Nat. Bank v. Burr, 198 Iowa 4, 199 N.W. 359.
II. Prior to the commencement of this action, on January 13, 1922, the affairs of the Home Securities Company were placed in charge of a receiver. Appellee neither pleaded nor offered proof that he had rescinded the subscription and tendered the certificate back to the Securities Company, nor is there evidence from which the jury could have found that it was worthless and of no value.
Appellant at the conclusion of all the testimony, moved the court to direct a verdict in its favor, upon the ground, among others, that it appeared from the evidence without dispute that the stock purchased was delivered to appellee, and that he still retained the same in his possession. Appel...
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