Jasper County Sav. Bank v. Saheroff

• Decision Date: 13 March 1928
• Docket Number: 38841
• Citation: 218 N.W. 486,205 Iowa 774
• Parties: JASPER COUNTY SAVINGS BANK, Administrator, Appellant, v. BILL SAHEROFF, Appellee
• Court: Iowa Supreme Court

218 N.W. 486

205 Iowa 774

JASPER COUNTY SAVINGS BANK, Administrator, Appellant, v. BILL SAHEROFF, Appellee

No. 38841

Supreme Court of Iowa, Des Moines

March 13, 1928

Appeal from Des Moines Municipal Court.--HERMAN F. ZEUCH, Judge.

This is an action on a promissory note. Defense of payment. Trial was had to a jury, which returned a verdict for the defendant. Judgment was rendered against the plaintiff for costs. The plaintiff appeals.--Reversed and remanded.

Reversed and remanded.

S. B Allen, for appellant.

Lappen & Carlson, for appellee.

WAGNER J. EVANS, DE GRAFF, MORLING, and KINDIG, JJ., concur.

OPINION

WAGNER, J.

The plaintiff is the administrator of the estate of Hannah J Brown, deceased; said decedent was payee in a promissory note for $ 200, bearing date December 26, 1918, and due June 26, 1919; and the defendant is the maker of said note, being the instrument upon which this suit is based. Seth Brown, son of the decedent, was indebted to the defendant on a promissory note for $ 300, bearing date September 20, 1920, and due March 20, 1921. The sole defense of the defendant to the $ 200 note, as taken from the averments of his answer, is:

"That, long prior to the decease of Hannah J. Brown, the obligation on said note was canceled by the payment of a note due and owing from one Seth Brown to the defendant herein; that, prior to the decease of said Hannah J. Brown, the obligation upon the note sued upon was paid, canceled, and terminated."

The evidence, as shown by the record, upon which the defendant relies, as establishing the payment or cancellation of the $ 200 note, is substantially as follows: Seth Brown, the maker of the $ 300 note, was living with his mother, the payee of the $ 200 note. After the $ 300 note became due, the defendant went to the home of the Browns, and asked Seth to pay the $ 300 note, and Seth asked the defendant, in substance, whether it would be satisfactory to him to take the $ 200 note which the defendant owed his mother, in part payment of his $ 300 note, and he would pay him the difference when he could; and the defendant answered in the affirmative.

At this point, the witness Johnson testified that he (the witness), the defendant, Saheroff, and Seth went into the room occupied by Mrs. Brown, where this matter was taken up with her, and that she said to Seth, "You know more about this business than I do, and if it is all right with you, it is all right with me to do that,--to let this $ 200 apply on the $ 300 note Bill has on you;" that Seth then told the defendant he would go and get the note, which was at the bank, and give it to him, and it would be canceled from the $ 300 note. This testimony on the part of the witness Johnson was received over the objection of plaintiff that it was incompetent, and an attempt to establish a liability by verbal testimony, in violation of the Statute of Frauds, without consideration, and without consummating the deal.

It appears from the record that Seth Brown was killed in an automobile accident, sometime after the above transaction, and that a guardian was appointed for Mrs. Brown, about 1924. The $ 300 note was introduced in evidence, and contains no indorsement of credit thereon of the amount of the $ 200 note. The note in suit remained in the possession of Hannah J. Brown at all times after the transaction hereinbefore referred to, until her death. There is no showing that the defendant ever made any claim to or demand for said note.

The plaintiff made a motion for a directed verdict, which was overruled; and the trial court instructed the jury that the sole issue for their determination was as to whether or not the $ 200 note has been paid, and permitted the jury to find from the aforesaid testimony as to the conversation occurring at the Brown home, that there was at that time a payment, or completed transaction which amounted to a payment or cancellation, of the $ 200 note. The plaintiff excepted to the overruling of its motion for a directed verdict, and plaintiff took appropriate...