Hasted v. Dodge

• Decision Date: 13 December 1887
• Citation: 35 N.W. 462
• Parties: HASTED v. DODGE AND ANOTHER.
• Court: Iowa Supreme Court

35 N.W. 462

HASTED v. DODGE AND ANOTHER.

Supreme Court of Iowa

December 13, 1887

Appeal from superior court of Creston; GEORGE P. WILSON, Judge.

This is an action by Enoch Hasted against August Dodge and John Wood for the possession of certain personal property, or for the value thereof, if the same cannot be found. The plaintiff claims to be the owner of the property. The defendant Dodge claims that he held a chattel mortgage on the property, and that he put the mortgage in the hands of his co-defendant Wood, who, as agent, foreclosed the mortgage by seizing and selling the property. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendants appeal.

Maxwell & Leonard, for appellants.

D. W Higbee, for appellee.

OPINION

ROTHROCK, J.

1. The plaintiff claimed that the mortgage had been paid and settled in full, and should have been canceled of record, but that, instead of doing so, the defendant Dodge wrongfully caused the property to be seized and sold. The question as to the payment and satisfaction of the mortgage was the principal one in the controversy upon the trial. Appellants’ insist that there was no evidence upon which to found a verdict that the same was ever paid. We do not think this position can be sustained. The theory of the plaintiff is that he had an accounting with Dodge, and they estimated that the plaintiff’s property was sufficient to pay the mortgage, excepting eight dollars; that Dodge thereupon agreed to take the property at the face of the mortgage, and call it a settlement in full; and that this was agreed to, and he afterwards bought the property back from Dodge, but that Dodge failed to cancel the mortgage; and it cannot be said that there is no evidence to support the claim made. Counsel for the appellants claim that the release of the eight dollars was without consideration, and that the foreclosure of the mortgage was therefore rightful. The rule that the acceptance of part payment is no consideration for the release of part of a debt not paid can have no application to a case, where, as in this, payment is made in property of a considerable amount, and the debt exceeds in a very small sum the estimated value of the property, and it is agreed to take the property for the debt.

2. It is claimed that the judgment should be reversed, because the same was entered up while a motion for a new trial was on file, and the motion for a new trial...