First Nat. Bank of Grand Haven v. Zeims

• Decision Date: 19 December 1894
• Citation: 61 N.W. 483,93 Iowa 140
• Parties: FIRST NAT. BANK OF GRAND HAVEN v. ZEIMS.
• Court: Iowa Supreme Court

93 Iowa 140

61 N.W. 483

FIRST NAT. BANK OF GRAND HAVEN

v.ZEIMS.

Supreme Court of Iowa.

Dec. 19, 1894.

Appeal from district court, Webster county; John L. Stevens, Judge.

Action at law on a promissory note. The defendant, in answer, pleaded: First, that he never signed the note in suit as such; second, fraud in the inception of the note; third, want of consideration. The case was tried to a jury, which returned a verdict for defendant, on which judgment was rendered, and plaintiff appeals. Affirmed.Wesley Martin and George Wambach, for appellant.

Botsford, Healy & Healy, for appellee.

DEEMER, J.

The action is upon a promissory note of which the following is a copy: “$120.00. Fort Dodge, Iowa, May 14th, 1888. On or before the 14th day of May, 1889, I promise to pay to the order of Cole, Grant & Co., one hundred and twenty dollars, value received, with interest at 8 per cent. per annum. Payable at the Webster Co. Fence Factory. F. Zeims.” The defendant denies that he signed the same in the form it now appears, but avers that at the time he signed the paper no writing whatever was upon it; that the same was not then a promissory note, nor in the form of one. No payee was named in the instrument, and the figures “120.00” and the words “Cole, Grant & Co.,” “one hundred and twenty dollars,” and the figure “8” were not upon the instrument, but the same were written in after defendant signed the paper; and the note as it now appears is a forgery. For further defense the defendant avers that about the date of the instrument one Clark called upon him, and claimed that he represented Cole, Grant & Co., who had a factory for the manufacture of an improved fence, and that the said firm had the exclusive right to sell the fence in Webster county, Iowa; that said firm had a branch factory at Ft. Dodge, of which Breese & Breese were managers, and that they (Cole, Grant & Co.) wished defendant to act as agent for the sale of the fence in his township; that defendant would have nothing to pay, but would be required to execute a contract for the agency, and an instrument was presented to him, which was unnamed, but which was in the form stated in the first division of defendant's answer before the same was signed and delivered, which Clark represented should be deposited with Breese & Breese until such time as defendant should be convinced of the truth of Clark's statements, and to satisfy Breese & Breese that defendant was agent for the territory named, and that as such agent he was to purchase of Breese & Breese such fence as he should order, the instrument to be evidence of his authority; that believing in and relying upon the truth of the statements defendant signed the instrument. And defendant avers that each and all of said statements were untrue; that the instrument signed by him was not deposited with Breese & Breese, but instead it was fraudulently forged and altered, and made in the form of a promissory note, without defendant's knowledge or consent; that the same was transferred without consideration to the plaintiffs, and that plaintiffs had notice of the fraud and false representations before set forth. Defendant further avers that he never received any consideration for the note. No reply was filed, and no attack was made upon this answer, or any part of it, and the case went to trial upon the issues thus joined.

There was testimony in the case from defendant himself, tending to support his claim that the paper is a forged and altered one. And under familiar rules, if matter pleaded as a defense is not attacked by motion or demurrer, and there is testimony to sustain it, it will defeat the action, although it may not have amounted to a legal defense. Conger v. Crabtree (Iowa) 55 N. W. 335;Linden v. Green, 81 Iowa, 365, 46 N. W. 1108;Benjamin v. Vieth, 80 Iowa, 149, 45 N. W. 731. Let it be assumed, however, that the objection to the answer was not clearly apparent on the face thereof, and that the insufficiency of the defense arises upon the proofs. We turn, then, to such of the assignments of error as are argued by counsel. It is insisted on behalf of appellant that the evidence shows beyond question that it is a good-faith holder of the note, for value and before maturity, and that under the undisputed facts plaintiff is entitled to recover--First, because the defendant intrusted Clark with a printed form of promissory note to which he (defendant) had signed his name, with implied authority in Clark to fill it up for some purpose, and that, as against an innocent purchaser, defendant cannot be heard to say that Clark had no authority to fill in the blanks; second, that defendant was negligent in placing in the hands of Clark a printed form of promissory note with the blanks left unfilled, and that, as between plaintiff and defendant, defendant must suffer the consequences of his neglect, under the well-known rule that, where one of the two innocent parties must suffer through the fraud or negligence of a third, the loss shall fall upon him who placed it in the power of the third party to do the wrong; and, third, that defendant was negligent in not discovering the contents of the paper he was signing, and cannot be heard to say it was not a promissory note. These questions are practically all there are in the case, and they arise on motions to exclude testimony and exceptions to the instructions given.

The defendant testified: That Clark, who represented he was an agent for Cole, Grant & Co., tried to induce him to accept the agency for the sale of a patent fence in certain territory in Webster county, but that he (defendant) would not agree to do it. That Clark then represented that Breese & Breese, living in Ft. Dodge, were agents for Cole, Grant & Co., and...