Hodgson v. Keppel

• Decision Date: 21 October 1930
• Docket Number: 40430
• Parties: ARTHUR J. HODGSON, Guardian, Appellee, v. GEORGE KEPPEL, Appellant
• Court: Iowa Supreme Court

232 N.W. 725

211 Iowa 795

ARTHUR J. HODGSON, Guardian, Appellee, v. GEORGE KEPPEL, Appellant

No. 40430

Supreme Court of Iowa, Des Moines

October 21, 1930

REHEARING DENIED JANUARY 16, 1931.

Appeal from Lee District Court.--JOHN E. CRAIG, Judge.

Action at law to recover on an alleged implied contract. There was a verdict for the plaintiff. Defendant appeals. The facts appear in the opinion.

Reversed.

Ralph B. Smith and Burrows & Burrows, for appellant.

J. O Boyd, John P. Hornish, and John M. Strinic, for appellee.

GRIMM J. MORLING, C. J., and EVANS, FAVILLE, and KINDIG, JJ., concur.

OPINION

GRIMM, J.

On January 5, 1929, the plaintiff filed in the district court of Lee County, Iowa, a petition, verified by the plaintiff, in which he claimed of the defendant, George Keppel, $ 4,000, with interest from October 5, 1912, at 6 per cent per annum, payable annually, less $ 100 paid October 6, 1913, "for money had and received of plaintiff's ward's mother, Della L. Keppel; that the defendant, on or about October 5, 1912, orally promised Della L. Keppel he would repay her said sum, together with interest." To this petition the defendant filed a demurrer, interposing the statute of limitations. This demurrer was sustained.

On the 6th day of March, 1929, the plaintiff filed his first amended and substituted petition, verified by the plaintiff, in which he stated, among other things:

"That the defendant, George Keppel, received all of the proceeds of said note ($ 4,000) and mortgage so executed by Della L. Keppel; that the said Della L. Keppel executed said note and mortgage at the instance and request of the defendant, George Keppel, and for his use and benefit; that, at the time, the defendant orally promised the said Della L. Keppel that he would pay said note on or before it matured, together with interest, as stated in said note."

To this petition there was a demurrer filed, raising the issue of the statute of frauds.

On December 2, 1929, the defendant filed his second amended and substituted petition, properly verified by the plaintiff, in which he states, among other things:

"That, on or about October 5, 1912, the defendant, George Keppel, negotiated with one Edward Brown for a loan of $ 4,000, and for the loan of said $ 4,000 from said Edward Brown the defendant George Keppel promised to secure the same with a note of his sister, Della L. Keppel, secured by a mortgage * * * that the defendant, George Keppel, received all of the proceeds of said note and mortgage so executed at the instance and request of the defendant and for his use and benefit, * * * that the defendant, George Keppel, received all of the proceeds of said loan resulting from said negotiations and evidenced by said note and mortgage given said Edward Brown; and that the same was received under circumstances that would make it inequitable and contrary to good conscience and good morals for him to retain the same without repaying said note according to its terms and provisions; that, in pursuance of said implied contract to pay said note according to its terms and provisions, the said George Keppel did, on October 6, 1913, make one payment of $ 100 to said Edward Brown."

To this second amended and substituted petition the defendant answered, setting up: First, a general denial; second, that, if there was any money paid either by Della Keppel or the mortgagee Brown, that the same was paid to said George Keppel in satisfaction of a debt owed by Della Keppel to George Keppel; third, that the cause was barred by the statute of limitations; fourth, that neither the defendant nor any person for him, lawfully authorized, ever signed any contract or agreement whereby the defendant promised to pay the debt due Edward Brown from Della L. Keppel; fifth, the statute of frauds was pleaded. The cause was tried to a jury, and the jury returned a verdict against the defendant for the sum of $ 7,075.60. The note and mortgage were assigned by Brown, and the mortgage was foreclosed on Della's property, and a sheriff's deed was issued February 4, 1924.

I. The appellant sets forth twelve errors relied upon for reversal, including the claim that the court erred in not sustaining, the defendant's motion for a directed verdict in his behalf, on the ground that the statute of limitations had barred the claim. We will first consider this claim.

Della Keppel and George Keppel, the defendant (appellant) were sister and brother. The defendant claims that, on September 12, 1912, Della Keppel executed to the defendant, George Keppel, one promissory note for the sum of $ 4,000. This note, without any evidence of payment of any part of the principal or interest, was introduced in evidence by the defendant, after he identified the signature thereto as that of Della Keppel. This is not the note in controversy.

The principal evidence in this case on behalf of the plaintiff was given by Edward Brown and B. F. Jones. We will consider the important parts of their evidence.

Brown was the man from whom the money was borrowed, and to whom the note and mortgage to secure the payment thereof were executed by Della Keppel. He testified, among other things:

"In October, 1912, George Keppel talked to me about a loan of $ 4,000. They wanted the loan, and they were going to put up a mortgage on some property on North Twelfth Street, to secure the loan. The title was in Della Keppel. He wanted this money for the purpose of going to school, if I recollect right. I made the loan. I closed this loan in Mr. Jones's office, and I got a note secured by a mortgage on the Twelfth Street property signed by Della Keppel, and the mortgage and note were received by me in accordance with the negotiations I had with George Keppel, to the best of my recollection. * * * I paid all checks to George, except two, and the two first checks were handed to Della Keppel the date of the deal in Mr. Jones's office, * * * and Della endorsed them and handed them to George."

It appears that only $ 1,500 of the $ 4,000 was paid the day the papers were made, and Brown gave Della notes for the balance. Brown further testified that:

"At the time I negotiated this loan, as I remember it, they didn't care about having the money all at once. They wanted it at different times, and I think this would account for the different dates of payment. There was one interest payment, or part of an interest payment, made on this $ 4,000 note by George Keppel."

The indorsement of this payment on the original note was in the handwriting of the witness Brown.

On cross-examination, Brown testified, among other things, as follows:

"I think George Keppel came to my farm near Warsaw to talk about this loan, and we finally agreed to make it.

"Q. Now you say that George said something about wanting to go to school? A. Yes, sir. Q. And you were loaning George the money, were you? A. George was getting the loan for his sister. To my best recollection, the note and mortgage were made by Della Keppel. I was looking to whoever signed that note and mortgage for the payment of it. Mr. Jones prepared the papers for me, and Della Keppel was present in Mr. Jones's office, and the deal was completed in Mr. Jones's office. On the day the papers were signed, I made out checks to Della Keppel for the sum of $ 1,500, and I think I gave Della Keppel a note."

On redirect examination he said:

"There can be no mistake that these checks were paid to George Keppel. The first two checks were turned over to George by Della, but they were made payable to Della, and the other checks were handed to George."

Apparently all of the $ 4,000 passed to George Keppel. The witness Jones was a lawyer in Keokuk. He seems to have kept a diary, and testified from memory, refreshed by his diary, among other things, as follows:

"They [Della and George] came up, on the day that I drew the papers, and George Keppel talked considerable. He was handling the negotiations in regard to the loan. I prepared a note and mortgage and also an affidavit, and examined the abstract. Della Keppel signed the note and mortgage. She was the owner. This was on the 5th day of October, 1912. I had George Keppel, Albert Keppel, Cornelius Keppel, and Nancy Keppel to sign the affidavit. The papers were executed and some checks given by Mr. Brown in my office on the 5th day of October, 1912. * * * George Keppel said he wanted the proceeds of this loan to go to school, and Della was going to loan it to him, and he was going to pay it back. * * * Della Keppel was in my office at the time I prepared the note and mortgage, and they talked about this loan. She signed it and I took her acknowledgment the 5th day of October, 1912, and I remember Della Keppel said to let George have the money, and George did most of the talking."

The foregoing constitutes substantially all the important evidence in the case. It appears without dispute that Della Keppel was born July 18, 1894, and was buried on February 10 1914. She married after the papers were executed, and at the time of her death, she was the wife of Anthony Elias. Plaintiff's ward, John Elias, is a son born to that union, and an only child. At the time of the trial, the 3d day of December, 1929, this boy was 15 years of age. He must have been born very shortly before the death of his mother, Della...