Higbee v. Trumbauer

• Decision Date: 08 October 1900
• Citation: 83 N.W. 812,112 Iowa 74
• Parties: W. M. HIGBEE, Appellant, v. CHARLES A. TRUMBAUER
• Court: Iowa Supreme Court

83 N.W. 812

112 Iowa 74

W. M. HIGBEE, Appellant, v. CHARLES A. TRUMBAUER

Supreme Court of Iowa, Des Moines

October 8, 1900

Appeal from Buchanan District Court.--HON. A. S. BLAIR, Judge.

ACTION upon a promissory note executed by the defendant. Defense fraud and want of consideration. Trial to a jury, and verdict and judgment for the defendant. Plaintiff appeals.

Affirmed.

E. E Hasner for appellant.

Ransier & Everett for appellee.

SHERWIN J. GRANGER, C. J. not sitting.

OPINION

SHERWIN, J.

The note in suit was given for a quantity of stock food. When the defendant was first solicited to purchase, he informed one Mahood, who was trying to make the sale, that he was inexperienced, and "would not want to make a purchase of that kind without seeing" his brother, on whose "experience and opinion" he "depended," and that he "always consulted him in matters of that kind, and wanted to do the same thing here." He did not have an opportunity to see his brother as desired, but the next day Mahood and the plaintiff visited him, and Mahood, in the presence of the plaintiff, told defendant that he had seen his brother the day before, and told him "about the transaction," and that the brother "thought it was all right, and that it would be advisable for him to undertake it." Relying upon this statement of Mahood, defendant made the purchase of some 3,400 pounds of stock food, and gave his note therefor. The statement was false, and within three or four days after giving the note the defendant so notified plaintiff, and demanded the surrender of his note, and refused to receive the stock food, which was at the time in plaintiff's possession.

Upon the trial evidence of Mahood's acts and statements, not in the presence of plaintiff, was admitted, over his objections. There was no error in this. The plaintiff refused to surrender the note after full knowledge of the deception that had procured it. By so doing, he ratified the entire transaction, including the acts and statements of Mahood, and cannot now disaffirm any part thereof. Eadie v. Ashbaugh, 44 Iowa 519; Wm. Deering & Co. v. Grundy Co. Nat. Bank, 81 Iowa 222, 46 N.W. 1117.

Nor was it necessary to plead that the fraud was committed by an agent or that it was ratified. If true, it was the act of the principal, and to so plead is sufficient. Wm. Deering & Co. v. Grundy County Nat. Bank, supra; 16 Enc. Pl. & Prac. 904.

It is contended that the alleged false statement was not material, and that no injury is shown to have resulted therefrom. Mahood was informed that the defendant would rely upon his brother's judgment as to the advisability of buying so large a quantity of stock food, and, in effect, was told that, if the brother's judgment was adverse thereto he would not purchase. When the defendant was assured that the brother approved the...