Eggleston v. Mason

• Decision Date: 08 February 1892
• Citation: 84 Iowa 630,51 N.W. 1
• Parties: EGGLESTON v. MASON ET AL.
• Court: Iowa Supreme Court

84 Iowa 630

51 N.W. 1

EGGLESTON

v.MASON ET AL.

Supreme Court of Iowa.

Feb. 8, 1892.

Appeal from district court, Polk county; CHARLES A. BISHOP, Judge.

Action to recover an amount alleged to be due on a promissory note. There was a trial by jury and a verdict and judgment for plaintiff. The defendants appeal.Whiting S. Clark, for appellants.

Chamberlain & Stewart, for appellee.

ROBINSON, C. J.

The note in suit was given on the 10th day of September, 1878, for the sum of $500, was payable 60 days after its date, and purports to be signed by defendants Mason & Co. Plaintiff claims that there is due thereon the sum of $522.07, with interest on that amount at 10 per cent. per annum from the 25th day of October, 1888. The defendants are Mason & Co. and E. R. Mason. They deny the making of the note, and allege payment in full. During the year 1878, Mason & Co. were engaged in the business of manufacturing and dealing in tinware and other merchandise. The business was managed by J. F. Mason. There is evidence which tends to show that the note in suit was made and delivered by J. F. Mason for the benefit of the firm of Mason & Co., and it is claimed by plaintiff that he was a member of the firm, and duly empowered to give the note. The defendants insist that he was not a member of the firm; that he was not authorized to give the note; and that E. R. Mason constituted the firm when the note was given. The jury found specially that J. F. Mason was not a member of the firm.

1. The court permitted plaintiff to show that the money for which the note was given was used in the business of the firm. The jury were instructed as follows: “If you find that the money borrowed of plaintiff for which the note in suit was given was actually used in the business of the firm by Mason & Co. for its use and benefit, then you are instructed that the defendants cannot be heard to deny the authority of said J. F. Mason to borrow the money and execute and deliver the note in question; and if you find that the said J. F. Mason did in fact borrow the money of the plaintiff, and give in evidence thereof the note in suit, or that such note was given partly in payment of another note held by plaintiff against the firm of Mason & Co., and partly on account of money borrowed; and you further find that the money received by said J. F. Mason was actually put into the business of Mason & Co., and said firm had the benefit and advantage thereof,--then, unless you further find that such note in suit has been paid as you are hereinafter instructed, your finding should be for the plaintiff, and you will so say by your verdict.” We are of the opinion that this portion of the charge was erroneous, as applied to the issues raised by the pleadings. It told the jury, in effect, that, if the money for which the note was given had been used in the business and for the benefit of the firm, the defendants were estopped to deny liability on the note. The...