Corbett v. Hughes

• Decision Date: 02 October 1888
• Citation: Corbett v. Hughes, 75 Iowa 281, 39 N.W. 500 (Iowa 1888)
• Parties: CORBETT v. HUGHES ET AL.
• Court: Iowa Supreme Court

75 Iowa 281

39 N.W. 500

CORBETT

v.HUGHES ET AL.

Supreme Court of Iowa.

October 2, 1888.

Appeal from district court, Hardin county; JOHN H. HENDERSON, Judge.

Action by Charles Corbett against A. S. Hughes and Matt.Rose, upon a promissory note, to which Rose was surety.The district court, on plaintiff's motion, struck out the second and third divisions of the answer, on the ground that the matters pleaded constituted a counter-claim, and that the same did not arise out of the contract set out in the petition, and constituted a cause of action in favor of defendant Rose alone.The only question arising upon the appeal is as to the correctness of that ruling.Albrook & Hardin, for appellants.

W. J. Moir, for appellee.

REED, J., ( after stating the facts substantially as above.)

It was alleged in the motion that defendant Hughes is the principal debtor on the note sued on, and that Rose is surety; and counsel for both parties have argued the cause on the assumption that the averment is true.We will consider the case, assuming that such is the relation of the defendants, although the fact is not shown by any averment of the pleadings, neither does it appear upon the face of the note.

1.The second division of the answer is as follows: “By way of counter-claim thereto, these defendants say that there has been paid on the said note to the plaintiff by the defendant Rose the sum of $29.85, in tiling, and the further sum of $6, in hauling tile for the said plaintiff from Ackley, making a total of $35.85, to which these defendants are entitled as a credit on the said note, an itemized statement of which is hereto attached as Exhibit A, and made a part hereof.”In the exhibit the plaintiff is debited with three items for tile and one item for hauling.It was contended that this division of the answer pleaded a partial payment of the note, and that it should not have been stricken out, even though it should be held that a counter-claim in favor of but one of the defendants cannot be pleaded in the action.The promissory note sued on is a contract for the payment of money.That contract would not be performed by the delivery of property or the rendition of services, unless there was an agreement by the payee to accept such property or services in payment.Its delivery and acceptance, in the absence of such agreement, would create an indebtedness against the payee, but would in no manner effect the indebtedness evidenced by the note.The division of the answer in question, while it alleges in...