Farrar v. Peterson

• Decision Date: 04 December 1879
• Citation: 3 N.W. 457,52 Iowa 420
• Court: Iowa Supreme Court
• Parties: FARRAR & WHEELER, APPELLANTS, v. A. PETERSON, APPELLEE.

52 Iowa 420

3 N.W. 457

FARRAR & WHEELER, APPELLANTS,

v.A. PETERSON, APPELLEE.

Supreme Court of Iowa.

Filed December 4, 1879.

Appeal from Montgomery circuit court.

Action upon a promissory note commenced before a justice of the peace, where a judgment was rendered for defendant. A like judgment was rendered in the circuit court upon an appeal. The plaintiffs now appeal to this court, the circuit court certifying the questions to be presented here.C. S. Murphy and McPherson & Scott, for appellants.

W. S. Strawn and Miller & Bartholomew, for appellee.

BECK, C. J.

I. The instrument sued upon is payable to plaintiffs, and contains a condition to the effect that it was executed for the purchase of a sewing machine, the title, ownership and right of possession of which should not pass from the plaintiffs until the note is paid in full, and that plaintiffs shall have full power to declare the note due, and take possession of the machine at any time they may deem themselves insecure, even before the maturity of the note. The answer of the defendant, as set out in the docket of the justice of the peace, admits the execution of the note, but avers that it was obtained by fraud; that it was given to plaintiffs' agent as evidence of the conditional sale of a sewing machine; that the sale was rescinded by plaintiffs, who took back the machine, and that the consideration of the note has wholly failed.

The defendant introduced testimony tending to show that he purchased the sewing machine of one Lattimer, to whom he delivered in payment the note in suit. It was agreed between Lattimer and defendant that if defendant's wife could not sew with it the machine was to be taken back and the note was to be returned. Within the time agreed upon Lattimer took the machine away. He informed defendant that he did not have the note with him, but he gave defendant a paper which he said was “a receipt against the note.” This proved to be a promissory note signed by Lattimer for the amount of defendant's note. The defendant is unable to read and write, and did not discover the character of the instrument given him by Lattimer until some time afterwards.

The plaintiffs introduced testimony in conflict with the evidence of defendant. Their testimony also tended to show that Lattimer was employed to sell sewing machines by one Tallmadge, who was the agent of plaintiffs for the sale of such machines, and that he was not authorized to make a contract and arrangement of the kind entered into by defendant with Lattimer.

2. The only question raised by the assignment of error, relates to thecorrectness of certain instructions given by the court to the jury. It is proper here to remark that all the instructions excepted to are not assailed in the assignment of errors, and one of the instructions so assailed was not excepted to in the court below. Another assigned for error is not objected to in argument. We can only consider those that were excepted to in the court below, and are assailed in the assignment of errors and argument of counsel. There are but two in this condition; to these our discussion must be limited....