Hall v. Wolff

• Decision Date: 02 October 1883
• Citation: 16 N.W. 710,61 Iowa 559
• Parties: HALL v. WOLFF ET AL
• Court: Iowa Supreme Court

16 N.W. 710

61 Iowa 559

HALL v. WOLFF ET AL

Supreme Court of Iowa, Davenport

October 2, 1883

Appeal from Page Circuit Court.

THIS action was commenced by the plaintiff against the defendant Wolff, upon a promissory note, and a writ of attachment was issued upon the ground that the debt was incurred for property obtained by false pretenses, the defendant having absconded. The writ of attachment was levied upon eleven spring calves.

The Shenandoah National Bank intervened in the action, and claimed that it was the absolute owner of the attached property at the time it was attached, and that it was at that time in the actual possession of the bank. Plaintiff answered the petition of intervention by denying that the bank was the owner of the property, and alleging that all claim of the bank to the property was derived from the defendant, Wolff and Wolff never assented to part with any title or interest in said property to the bank, and that all form of assent by Wolff was obtained by duress. He further averred that the claim of intervenor to the property was founded upon an illegal consideration, in that the same was procured by intervenor through a contract tainted with an agreement to stifle and hinder criminal prosecutions against H. S. Wolff for the crime of forgery. There was a trial by jury, which resulted in a verdict and judgment for the intervenor, and the plaintiff appeals.

REVERSED.

W. W Morsman, Hepburn & Thummel and James McCabe, for appellant.

C. S. Keenan and T. E. Clark, for appellee.

OPINION

ROTHROCK, J.

I.

Some two or three witnesses testified upon the trial that they were present when the agent of the bank purchased the calves from Wolff, and that the property was actually delivered to the agent of the bank in pursuance of the sale, and it appears that, at the time the bank purchased the property, Wolff was largely in debt to the bank, and that the property in controversy was taken upon the debt. There is no evidence in contradiction of the testimony of the witnesses that a sale was actually made, and that the property was delivered. And there was no evidence that the property was obtained by the bank by duress.

We have made the foregoing statement of facts, for the reason that a number of errors are assigned upon the rulings of the court upon the admissibility of evidence. Without setting out these assignments of error in full, we deem it sufficient to say that none of them are well taken, in view of the fact that the one and only issue really presented to the jury was, whether the contract between the bank and Wolff was illegal and corrupt, as being upon an agreement to stifle and hinder criminal prosecutions against Wolff; and we may further say that the foregoing statement is a complete answer to the complaint of counsel for appellant, that the instructions were indefinite, and failed to present the whole of the issues between the parties. The instructions given by the court to the jury presented in a clear and concise manner the very question which the jury under the evidence were called to pass upon. Instructions upon issues or upon a state of facts upon which there is no evidence are erroneous, as has several times been held by this court.

II. The court gave to the jury the following instruction:

"9. The fact that the contract of sale was coupled with an agreement to stifle or hinder the prosecution of Wolff for forgery, should be clearly and fairly proven, but it need not be necessarily established by direct proof. If such fact is established by the proof of such facts and circumstances which, if taken together, would establish the fact, it would be sufficient."

It is insisted that this instruction is erroneous, because it requires a greater degree or amount of evidence than a preponderance, which is sufficient in all civil cases. We think the claim of counsel is correct. "Clearly and fairly proven' imports more than a mere preponderance of evidence. In the case of West v. Druff, 55 Iowa 335, 7 N.W. 636, an instruction was held to be erroneous which required "clear and satisfactory evidence" to satisfy the jury of an issuable fact. That instruction cannot be distinguished from the one now under consideration.

III. One ground of the...