Farmers Trust & Savings Bank of Spencer v. Dewolf

• Decision Date: 09 December 1930
• Docket Number: 40504
• Citation: Farmers Trust & Savings Bank of Spencer v. Dewolf, 233 N.W. 524, 212 Iowa 312 (Iowa 1930)
• Parties: FARMERS TRUST & SAVINGS BANK OF SPENCER, Appellee, v. MARIS E. DEWOLF, Appellant, et al
• Court: Iowa Supreme Court

233 N.W. 524

212 Iowa 312

FARMERS TRUST & SAVINGS BANK OF SPENCER, Appellee, v. MARIS E. DEWOLF, Appellant, et al

No. 40504

Supreme Court of Iowa, Des Moines

December 9, 1930

REHEARING DENIED APRIL 14, 1931.

Appeal from Clay District Court.--F. C. DAVIDSON, Judge.

From a judgment in favor of the plaintiff rendered on the verdict of a jury, defendants appeal.

Affirmed.

Heald & Heald, for appellant.

H. E Narey and Cornwall & Cornwall, for appellees.

ALBERTJ. MORLING, C. J., and STEVENS, DE GRAFF, and WAGNER, JJ., concur.

OPINION

ALBERT, J.

This is a suit on a promissory note.Maris E. DeWolf is the only appellant in this court, and the defense made by him in the lower court was:

1st.His signature was placed on the note by him after the note had been made, delivered to and accepted by the plaintiff.

2d.There was no arrangement or understanding with the plaintiff prior to the acceptance of the note that said defendant would sign the same.

3d.There was no consideration for his signature.

He admits liability on the note were it not for the defenses above set out.

In the trial of the case, certain of the books of the bank were introduced in evidence by the plaintiff, over objection, and the admission of these books is the first error assigned.We are cited to many cases in both briefs on this proposition and a very able discussion by respective counsel on the question of books of account was made.Without entering into this discussion, the materiality of the entries in the books was by way of fixing the time at which the note was turned in to the bank.

The entries in the books were merely memoranda.The proper foundation being shown, we think this evidence was admissible.The modern doctrine as to the introduction of memorandum is announced by us in the following cases: State v. Brady,100 Iowa 191, 69 N.W. 290;State v. McGruder,125 Iowa 741, 101 N.W. 646;Ricker v. Davis,160 Iowa 37, 139 N.W. 1110.Gibson v. Seney,138 Iowa 383, 116 N.W. 325, is quite in point on the question here involved.See also22 C. J., 893.

In the trial of the case it developed that the note in controversy was a renewal note.The evidence was that in 1922, the DeWolf Grain Company was indebted to the plaintiff in the sum of $ 5,000.00, and a note was executed for that amount to the plaintiff, signed by the DeWolf Grain Company, N. E. DeWolf and Maris E. DeWolf.This note is known in the record as "Exhibit B".Much testimony was devoted to the circumstances surrounding the making of this note and the signing of it by Maris, he claiming that he signed the same under duress.It is shown that later the note last referred to was taken up and a new note made for $ 4,500.00, signed the same as the first note.Under the admission of Maris, this second note was a valid and binding obligation upon him.

On December 4, 1924, the second note was taken up and the note in controversy given as a renewal of the indebtedness.This note is known as "Exhibit A" in the record and is the note on which the present suit is founded.

In instruction No. 4the court said:

"It appears without dispute that the DeWolf Grain Company was indebted to the plaintiff bank, in June, 1922, upon the note of $ 5,000.00.That the plaintiff requested Maris E. DeWolf to sign the renewal note which was dated June 28, 1922; and that Maris E. DeWolf did sign said renewal note and became legally liable for the payment of said debt evidenced by the note Exhibit B.Whether he signed that note by reason of threats is immaterial, because such alleged threats, if made, would not constitute duress or afford any legal excuse to relieve him from the obligation to pay said note, Exhibit B."

From the brief history of these notes as above recited, it is quite evident that the original note, Exhibit B, and the circumstances surrounding its making were wholly immaterial in the case at bar.Maris having admitted that the...