F. C. Austin Mfg. Co. v. Decker

• Decision Date: 12 October 1899
• Citation: 109 Iowa 277,80 N.W. 312
• Parties: F. C. AUSTIN MFG. CO. v. DECKER ET AL.
• Court: Iowa Supreme Court

109 Iowa 277

80 N.W. 312

F. C. AUSTIN MFG. CO.

v.DECKER ET AL.

Supreme Court of Iowa.

Oct. 12, 1899.

Appeal from district court, Muscatine county; James W. Bollinger, Judge.

Action at law for the purchase price of a well-making outfit. There was a trial to a jury, resulting in a verdict and judgment for plaintiff, and defendant the Union Bank of Wilton appeals. Affirmed.P. M. Detwiler, for appellant.

E. M. Warner, for appellee.

DEEMER, J.

On July 16, 1895, the defendant Decker ordered of plaintiff a well-making outfit, for which he agreed to pay the sum of $400 upon delivery of the machine. On the back of the order was a certificate described as a banker's certificate of deposit, which reads as follows: “July 16, 1895. F. C. Austin Manufacturing Company, Chicago, Ill.: Mr. J. I. Decker, of Wilton Junction, Iowa, has this day deposited with us, in legal tender, $400.00, with Chicago exchange, subject to your order when machine is set up and works satisfactorily. Union Bank of Wilton, J. L. Giesler, Cashier. H. W.” The order was accepted and the machine delivered, but Decker failed to pay for it, and this action was brought against both defendants to recover the purchase price. Defendant Decker pleaded that his signature to the order was procured through fraud; that plaintiff failed to furnish a man to set up the machine, and put it into successful operation, as agreed; that the machine was not as represented, and was and is of no value; and that the certificate on the back of the order was obtained by fraud and false statements, and was and is without consideration. The defendant bank denies the allegations of the petition, and says that its signature to the certificate was obtained through fraud. On these issues the case was tried to a jury, resulting in a verdict for plaintiff. A motion for a new trial was overruled as to defendant Decker, and judgment was rendered against him for the amount of the verdict. The motion as to the bank was sustained, and thereupon plaintiff filed an amendment to its petition reciting the recovery of the judgment against Decker, and asking judgment against the bank on its certificate. The bank demurred to this amendment, and its demurrer was overruled, to which ruling exception was duly taken. It thereupon filed an amendment to its answer, in which it pleaded that it had no money belonging to Decker at the time it signed the certificate, and further pleaded that, as plaintiff had taken judgment against defendant Decker, it had elected to hold him for the purchase price, and thereby discharged the bank from liability on its certificate. On the issues tendered by these amended pleadings the case was tried to the court, resulting in a judgment for plaintiff.

Appellant contends that by the terms of the certificate in suit it became the agent of its co-defendant, Decker, and that, as plaintiff has taken judgment against Decker, it has either made such an election of remedies as that it is now precluded from recovering on the certificate, or that it has no right of recovery against the bank in an independent suit, but must proceed by execution to subject the money now in the hands of the bank now belonging to Decker to the payment of its judgment against Decker. We do not regard either of these propositions as tenable. The bank was something more than a mere agent of its co-defendant. It is expressly stated by a certificate in the handwriting of its cashier that Decker had deposited the sum of $400 with it, which it agreed to pay to plaintiff's order when the machine was set up and worked satisfactorily. The bank was, at least, a bailee, and, we are inclined to think, was a surety for the performance of defendant's contract. The verdict of the jury and the judgment against Decker were conclusive as to his liability, and defendant's promise was simply collateral to that of its co-defendant. There is no room here for the application of the doctrine of election of remedies. The remedies were not inconsistent, but concurrent and...