James & Haverstock v. Dalbey

• Decision Date: 31 January 1899
• Citation: 78 N.W. 51,107 Iowa 463
• Parties: JAMES & HAVERSTOCK, Appellants, v. F. R. DALBEY and ROXANNA DALBEY
• Court: Iowa Supreme Court

78 N.W. 51

107 Iowa 463

JAMES & HAVERSTOCK, Appellants, v. F. R. DALBEY and ROXANNA DALBEY

Supreme Court of Iowa, Des Moines

January 31, 1899

Appeal from Hamilton District Court.--HON. B. P. BIRDSALL, Judge.

SUIT in equity upon a promissory note signed by F. R. Dalbey, and to establish and foreclose a mechanic's lien upon the property of Roxanna Dalbey. Defendant F. R. Dalbey pleaded that the note was obtained through fraud and duress, and that it had been materially altered since its execution. Roxanna Dalbey says that the improvement which was placed upon her property, to-wit, lightning rods, was without her consent and against her protest, and that her husband, F. R. Dalbey, had no authority from her to contract for the improvement. The trial court dismissed the plaintiff's petition, and they appeal.

Reversed.

D. C Chase and J. B. Sweet for appellants.

A. N Boeye for appellees.

OPINION

DEEMER, J.

The note in suit was given in compromise of a claim for lightning rods which were erected upon a house and barn belonging to Roxanna Dalbey. It appears from the evidence that Roxanna objected to the purchase of the rods, and that this objection was made known to the agent who took the contract for the improvements. She said to her husband, in the presence of this agent, that if he (the husband) entered into the contract, he must pay for the rods with his money. She knew the rods were being erected, but she at all reasonable times protested against it. Under such a state of facts, no lien can be established against her property. The idea that her husband was her agent for the purpose of making the improvement is clearly negatived. Getty v. Tramel, 67 Iowa 288, 25 N.W. 245; Young v. Swan, 100 Iowa 323, 69 N.W. 566.

But it is argued that there should be a recovery against the husband upon the note. This instrument was given in compromise of a claim made by Cole Bros. upon a contract or order for the erection of lightning rods. As both the note and contract bear the signature of F. R. Dalbey, they make a prima facie case for plaintiffs, who are indorsees of the note; and the burden is upon defendant to establish some of the defenses pleaded by him. These defenses are fraud in securing the note, duress, and a material alteration. The contract provides that defendant shall pay sixty-seven cents per foot for the rod, braces and elevations to be counted as twenty feet of rod each; and he agreed to settle for the same in cash, or by note due in three months without interest. The contract further provides that two hundred and five feet of rod, and six points, six balls, and two vanes, should be furnished free of charge.

It is claimed that this contract was obtained by fraud, and that the agent for Cole Bros. represented that the rods would cost but ten dollars and twenty-five cents, whereas the claim made when the work was completed was for a very much larger sum. Defendant is a school teacher, and is above the average in intelligence. He had an opportunity to read the contract, and did, in fact, look over the instrument as it was read to him by the agent. No claim is made that the agent misread it. The only fraud attempted to be proven is the false estimate made by the agent as to cost of the rods. This is not sufficient to avoid the contract. Roundy v. Kent, 75 Iowa 662, 37 N.W. 146; Reid v. Bradley, 105 Iowa 220, 74 N.W. 896; Organ Co. v. Caldwell, 94 Iowa 584, 63 N.W. 336; Jenkins v. Coal Co. 82 Iowa 618, 48 N.W. 970; McKinney v. Herrick, 66 Iowa 414, 23 N.W. 767; McCormack v. Molburg, 43 Iowa 561.

After the rods had been erected, another agent of Cole Bros. called upon Dalbey for the purpose of making settlement. A controversy arose between this agent and Dalbey as to the amount for which he (Dalbey) was liable, which was finally settled by the execution of the note in suit. It is contended that Dalbey did not sign the note of his free will, but through duress, caused by threats of prosecution for obtaining property under false pretenses. The evidence of Dalbey on this point is as follows. I signed the note about four o'clock. I told him I would not sign any note. I said, 'I won't sign any note; it is a damn swindle and I won't sign any note.' He says, 'You will have to sign it.' I says, 'I won't do it.' He says, 'If you don't sign it, I will make it cost you your farm.' He says, 'I will prosecute you for getting goods under false pretenses.' He tore around like a man with his head off. My daughter and my wife and son were there. My wife took part in the conversation. I finally signed the note. It is the same note you have referred to in controversy in this action. Q. The property was all in her name, was it not? A. Yes, sir. Q. How did you understand that he was going to break you up, if she had nothing to do with the contract? A. I knew it would call out litigation. I was not so much afraid of that as I was of the other, because I did not know whether I had done anything wrong or not in signing that contract,--whether I had done a criminal act or not. Of course, he got me considerably rattled. I didn't know much of anything along the last of it. This note was signed at four o'clock, and he had put the rods on at noon." Mrs. Dalbey testified as follows: "They were at the barn quarreling. He wanted him to sign a note for the amount he asked for the rods, and they wouldn't do it. He threatened to take it up. He said he had broken more than one farm. He said he would make it cost us twice as much. I stayed there until he left, about four o'clock. I was there about three hours. McCann threatened to prosecute my husband for getting something under false pretenses. I ordered him to take down the rods, and take them away, and he said he didn't have to. I wanted my son to go after the constable to arrest him. Q. This man told you, when he was there making threats, that he could file a lien on the place, didn't he? A. Yes, sir. Q. That was the only threat he made? A. Yes, sir. He said he would not take a lien if he would sign the note. Q. Now, if you had tried very hard, Mrs. Dalbey, you could have made these fellows quit? A. What can one woman do with those desperate fellows? I did not see him have any revolver, but the motions were just as good. I guess he was armed. My son was there all the time. My husband was not afraid of him personally." The daughter said: "A. Was down to the barn before the note was signed. McCann threatened prosecution, and to break them up, and make them trouble. My mother wanted my brother to go for the constable, and have...