Gregory v. Wattowa

• Decision Date: 13 June 1882
• Citation: 12 N.W. 726,58 Iowa 711
• Parties: GREGORY v. WATTOWA AND OTHERS.
• Court: Iowa Supreme Court

58 Iowa 711

12 N.W. 726

GREGORY

v.WATTOWA AND OTHERS.

Supreme Court of Iowa.

Filed June 13, 1882.

Appeal from Howard circuit court,

In February, 1876, the plaintiff sold to the defendant Wattowa 160 acres of land, and took from him a mortgage and six promissory notes to secure the purchase money. Soon after the notes were executed the plaintiff, who resided in Howard county, sent three of them to Bryden, Moak & Scurr, commission merchants in Milwaukee, to secure such future advancements as they might make for him in certain contemplated purchases and sales of grain to be made by Bryden, Moak & Scurr for the plaintiff. The notes were indorsed in blank by the plaintiff either at the time they were sent or afterwards. In pursuance of the arrangement between the parties, Bryden, Moak & Scurr made purchases and sales from time to time, and at the close of the business the plaintiff was indebted to them, as they claimed, in a large amount. Afterwards the partnership of Bryden, Moak & Scurr was dissolved, and the notes, with plaintiff's indebtedness, passed to J. A. Bryden, one of the firm. Bryden sold the notes and transferred them to John Johnson. Johnson subsequently brought suit in the Howard district court against Wattowa, the maker of the notes, to recover the amount due thereon and to foreclose the mortgage. The plaintiff herein intervened in that action and claimed that he was the real owner of the notes, and alleged that all of the purchases and sales of grain made by Bryden, Moak & Scurr for him and upon his order were mere gambling transactions, and that it was understood by the parties that no actual delivery of any of the grain contracted was intended or was in fact made. It appears there was a trial upon the issue thus made, and the plaintiff's petition of intervention was dismissed without prejudice. Soon afterwards he commenced this action, in which he set up substantially the same claim to the notes that he did in his petition of intervention. Issue having been joined on the plaintiff's petition, there was a trial to the court, and a decree was entered finding that Johnson was the owner of the three notes in controversy, and dismissing plaintiff's petition as to him. Plaintiff appeals.John L. Stoneman, Frank Sayre, and A. Chapin, for appellant.

H. T. Reed and Geo. E. Marsh, for appellee.

ROTHROCK, J.

Passing the question as to the effect of the dismissal of plaintiff's petition of intervention in the former action concerning these notes, we come to the main question upon the merits of the case, which is, was the transfer of the notes by the plaintiff to Bryden, Moak & Scurr void, or, rather, voidable at plaintiff's election, because the transfer was an advancement made or security for advancements to be made by the...