Johnson v. Ridir

• Decision Date: 27 October 1891
• Citation: Johnson v. Ridir, 84 Iowa 50, 50 N.W. 36 (Iowa 1891)
• Parties: JOHNSON v. RIDIR.
• Court: Iowa Supreme Court

84 Iowa 50

50 N.W. 36

JOHNSON

v.RIDIR.^*

Supreme Court of Iowa.

Oct. 27, 1891.

Appeal from district court, Tama county; L. G. KINNE, Judge.

Action to recover the amount due on a promissory note. A trial by jury resulted in a verdict and judgment in favor of plaintiff. The defendant appeals.W. H. Stivers, for appellant.

C. B. Bradshaw, for appellee.

ROBINSON, J.

The petition was filed on the 30th day of March, 1882, and demands judgment against defendant for the sum of $110, with interest and attorney's fees on a promissory note made to him, dated February 20, 1878, for $71, with interest threon at 10 per cent. per annum, payable annually. The answer denies that the note is unpaid, and alleges that in April, 1878, one Hicks was indebted to defendant in the sum of $73, and was also indebted to plaintiff; that at that time it was agreed between defendant and Hicks that the latter should make to the former a promissory note for said sum, and secure it by a chattel mortgage; that afterwards, and before the note and mortgage were given, it was verbally agreed by Hicks, the plaintiff, and defendant that the indebtedness of Hicks to the plaintiff and defendant should be evidenced by promissory notes made payable to plaintiff, and secured by a chattel mortgage on property of Hicks, executed to plaintiff, and that out of the proceeds of the mortgaged property the amount due should be first paid; that notes were given to plaintiff as provided by said agreement, and a mortgage to him to secure their payment was executed on a part of the crops to be grown on land which is specified. The answer further alleges that plaintiff has received upon the notes and mortgage the sum of $100, and more than the indebtedness of Hicks to defendant, and that plaintiff refuses to pay to defendant the sum due him from Hicks. In an amendment to the answer it is further alleged that in August, 1878, defendant stored in the name of the plaintiff a quantity of wheat, of the value of $62, which amount was received by plaintiff, and that when the note in suit became due plaintiff was indebted to defendant for the amount so received, no part of which has been paid. The plaintiff admits having received proceeds of the mortgaged property, but alleges that they were properly used in paying indebtedness in which defendant was not interested, and denies having received anything on account of grain stored as alleged. When the evidence had been fully submitted, the court charged the jury to return a verdict in favor of plaintiff for the amount of the note, and refused to give certain instructions asked by defendant. The jury retired to deliberate, and after a time returned a verdict in favor of plaintiff for the sum of $22.85. The verdict was delivered to the court, and read by it, and thereupon it verbally directed the jury that the verdict was not in accordance with the charge given them, and that they must compute the amount due on the note according to the charge. The jury again retired, and on the same day returned a verdict in favor of plaintiff for the sum of $192.32. Defendant filed a motion for a new trial, based on several grounds, one of which was that the verdict was excessive. Pending the motion, plaintiff remitted all of the verdict in excess of $184.90. The motion was overruled, and judgment was rendered for the amount last stated, with attorney's fee and costs.

1. Appellant seems to have abandoned all claims made in his answer excepting that set up in the amendment. It appears that in the year 1878 Hicks carried on a farm owned by plaintiff under a verbal lease, by virtue of which Hicks was to deliver to plaintiff as rent one-third of the crop grown on the premises. In April, 1878, Hicks was owing plaintiff a sum of money, and, to secure its payment, executed a mortgage to him, in which the property to be included therein was described by the mortgagor as follows: “All of my undivided two-thirds interest in any and all crops grown or to be grown during the year 1878 in and upon the...