Hallowell v. Van Zetten
| Decision Date | 17 December 1931 |
| Docket Number | No. 40969.,40969. |
| Citation | 213 Iowa 748,239 N.W. 593 |
| Court | Iowa Supreme Court |
| Parties | D. F. HALLOWELL & SONS v. VAN ZETTEN. |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County: J. E. Meyer, Judge.
This is an action at law upon a promissory note. There was a defense of payment. Trial to a jury. Verdict for the defendant. Plaintiff appeals. The facts appear in the opinion.
Affirmed.
F. L. Meredith, of Des Moines, for appellant.
John McLennan, of Des Moines, for appellee.
In July, 1929, the plaintiff filed a petition at law to recover judgment on a promissory note for $78, executed and delivered on the 7th day of February, 1921, in payment of merchandise purchased from the plaintiff. It is claimed that the total amount due at the time the petition was filed was $156. The defendant answered, admitting the execution and delivery of the note and alleging that it had been paid in full by two installments, one on February 22, 1921, and the other on February 26, 1921. The jury found for the defendant, and the plaintiff appeals.
[1] I. Many contentions are raised by the plaintiff as grounds for a reversal. Several of them pertain to the instructions, but we are unable to pass upon these questions, because the abstract does not set forth the instructions.
[2] II. The plaintiff raises several objections, based upon the introduction of certain receipts tending to show that the note had been paid. The receipts do not show that they represent payments of the note, but the defendant introduced witnesses who testified that the payments were made and accepted as payments on the note.
No error was committed by the court in permitting this explanation of the written receipt. In Effron-Kushner & Co. v. American Railway Express Co., 195 Iowa, 1168, loc. cit. 1172, 193 N. W. 539, 542, this court said: “The rule is well recognized that a written receipt may be explained by parol evidence. Mounce v. Kurtz, 101 Iowa, 192, 70 N. W. 119;Higley & Co. v. Burlington, C. R. & N. R. Co., 99 Iowa, 503, 68 N. W. 829, 61 Am. St. Rep. 250;Halligan v. Keller, 167 Iowa, 72, 148 N. W. 971;Butler v. Farmers' Nat. Bank, 173 Iowa, 659, 155 N. W. 999;Lowe Bros. & Co. v. Young, 59 Iowa, 364, 13 N. W. 329;Wadsworth v. Allcott & Smith, 6 N. Y. 64;Gafford v. Globe Trans. & Stor. Co., 71 Wash. 204, 128 P. 228;Hirsch v. Salem Mills Co., 40 Or. 601, 67 P. 949, 68 P. 733.
In Bremhorst v. Phillips Coal Co., 202 Iowa, 1251, loc. cit. 1260, 211 N. W. 898, 904, this court said:
Other cases of a similar character might be cited.
The plaintiff claims the payments in question were made upon an open book account. They were so applied by the plaintiff.
On the record as made, there arose a controversy of fact; the defendant claiming that, at the time the payments were made, it was understood and agreed that they were to be indorsed upon the note and, after the last installment, the note was to be returned to the defendant, while the plaintiff denies any such conversation or agreement.
As previously stated, the instructions are not before us, and we assume that the trial court correctly instructed the jury in submitting this question to them. The jury found the fact question for the defendant.
III. Various other complaints are made by the appellant, but none of them are presented in accordance with the rules of this court, and cannot be considered. See Supreme Court Rule No. 30; Blakely...
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