Gardner v. Johnson

• Decision Date: 12 May 1942
• Docket Number: 45798.
• Citation: 3 N.W.2d 606,231 Iowa 1233
• Parties: GARDNER v. JOHNSON et al.
• Court: Iowa Supreme Court

3 N.W.2d 606

231 Iowa 1233

GARDNER v. JOHNSON et al.

No. 45798.

Supreme Court of Iowa

May 12, 1942

Ferguson & Ferguson, of Shenandoah, and Miller, Hines &amp Higgins and More & More, all of Harlan, for appellants.

White & White, of Harlan, for appellee.

GARFIELD Justice.

The note in suit is for $600, dated September 15, 1930. It was signed by defendants John A. Johnson and Anna B. Johnson, husband and wife, payable to Amanda E. McKeighan, mother of Anna B Johnson. The payee transferred the note after maturity to plaintiff-appellee. Defendants interposed different defenses all of which were withdrawn from the jury except Anna B Johnson's separate defense of want of consideration. The court, in effect, directed a verdict against John A. Johnson. Defendants have appealed from the verdict and judgment (for $1,346.22) against Anna B. Johnson and the overruling of the motion for new trial and exceptions to instructions. Anna B. Johnson will be referred to as sole appellant.

We find it necessary to discuss but one of appellant's three claims to a reversal--that the jury was not sufficiently instructed regarding the defense of no consideration.

It appears in evidence without dispute that appellant was not present when the note was signed by her husband and the $600 was delivered to him by the payee or her agent. This was done at the payee's home, about 90 miles from the home of appellant and her husband. Appellant's signature was added a few days later, the exact time being in dispute. There is no claim of any new or added consideration for appellant's signature. There is sufficient evidence from which the jury could have found not only that there was no understanding or agreement that appellant was to sign the note, but that the payee expressly agreed appellant's signature was not necessary; that appellant later signed the note pursuant to a request from another son-in-law of the payee, induced by appellee's wife (a foster daughter of payee) who "was fussing because mother loaned Jack the money."

It is true appellee testified in substance, and the jury could have found, that the payee agreed to make the loan provided appellant would sign the note. A dispute of fact was thus presented for the jury. The note was secured by a chattel mortgage on property of John A. Johnson. Appellant, the jury could have found, received no part of the proceeds of the loan, which were entirely used to pay an individual debt of the husband.

We go now to the instructions. Instructions 1, 2, and 3 refer to the pleaded issues, including those withdrawn. The defense of want of consideration is referred to in No. 3 as follows: "To plaintiff's petition, defendant Anna B. Johnson has filed her answer alleging in substance: * * * that insofar as she is concerned, the note in suit is without consideration as to her, and does not constitute a valid obligation against her." Appellant's pleading of no consideration was in the same general terms set out in the instruction.

Instruction 4 states that plaintiff would be entitled to recover unless Anna B. Johnson had shown by a preponderance of the evidence that as to her the note was without consideration.

Instruction 5 quotes section 9484, Code 1939 (Sec. 24, Neg.Inst.Law): "Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value."

Instruction 6 reads: "Consideration means something of value moving from one person to another, a benefit to the party promising, or a loss to the person to whom the promise is made."

Instructions 7, 8, and 9 are stock instructions defining "preponderance of the evidence," dealing with credibility of the witnesses and forms of verdict. These are all the instructions...