Johnston v. Hoover

• Decision Date: 09 July 1908
• Citation: 117 N.W. 277,139 Iowa 143
• Parties: C. W. JOHNSTON, Appellant, v. G. W. HOOVER, Appellee
• Court: Iowa Supreme Court

117 N.W. 277

139 Iowa 143

C. W. JOHNSTON, Appellant, v. G. W. HOOVER, Appellee

Supreme Court of Iowa, Des Moines

July 9, 1908

Appeal from Polk District Court.-- HON. JESSE A. MILLER, Judge.

ACTION at law to recover upon a promissory note. There was a directed verdict and judgment in favor of defendant, and plaintiff appeals.-- Reversed.

Reversed.

J. D Wallingford and C. W. Johnston, for appellant.

J. M Graham and S. G. Van Auken, for appellee.

OPINION

BISHOP, J.

The action was originally commended before a Polk county justice of the peace. As declared upon, the note reads as follows: "$ 98.57. Audubon, Iowa Dec. 9, 1905. 180 days after date I promise to pay to the order of Consolidated Adjustment Co. ninety-eight and 57-100 dollars at Des Moines, Iowa. Value received. [Signed] G. W. Hoover." The defendant answered in two counts: (1) Pleading a material alteration in the note, in that after execution and delivery there had been written into the note the words "Des Moines, Iowa," as the same now appears therein following the word "at." (2) That the defendant resides in Audubon county, and there is no jurisdiction in the court to render judgment against him. Trial was had to the justice, resulting in a judgment in favor of plaintiff for the amount due on the note according to its terms. Defendant appealed, and in the district court the case went to trial upon the pleadings as filed before the justice. Plaintiff introduced the note in evidence, and an inspection thereof made it appear that a printed form had been used in its preparation. In the form, as printed, a blank space was left after the word "at," in which space the words "Des Moines, Iowa," were written in with pen, apparently by the same hand and with the same pen which filled the other blank spaces in the form.

As a witness plaintiff testified that he purchased the note of the payee, in good faith and for value, within a few days after the day of the date thereof; that, when purchased by him, it was in the precise form of words as now appearing; and that he had no knowledge of any change or alteration having been made therein. Defendant made proof of his continued residence in Audubon county; that the note was there executed, and, when executed and delivered, the blank space after the word "at" was unfilled; that he never gave to any person authority to fill said blank. The motion to direct a verdict came at the close of all the evidence, and was based solely upon the ground that the court had no jurisdiction to render judgment in favor of plaintiff. And in ruling upon the motion the court expressed the view "that, under the evidence submitted by the defendant, this court is without jurisdiction," and hence the motion should be sustained. We think the ruling was error. Evidently it was grounded upon the thought that, as the place of payment was shown to have been written in the note in the blank space provided therefor, after the execution and delivery of the instrument, the designation of such place was without the contract of the parties. Hence the provision of Code, section 3496, which authorizes suit to be brought in the county of the place stipulated in a written contract as the place for the performance thereof, should not be given application. This ruling, as it seems to us, ignores the provision of the recent statute -- commonly referred to as the "Negotiable Instruments Law"-- which appears as section 3060a14, Code Supp. 1907. It is there provided that, "where the instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein. . . . In order, however, that any such instrument when completed may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given and within a reasonable time. But if any such instrument, after completion, is negotiated to a holder in due course it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in accordance with the authority given and within a reasonable time." It is evident that the provisions of the statute now in force were not overlooked on the trial in the court below, but it seems to have been the thought of the court that section 3060a14 had no application to the case as made. And it is the argument for appellee in this court that the case is not within that section for the reason -- stated in short -- that the designation of a place of payment was not matter material to the completion of the note. And, further, it is argued that the case falls strictly within the provisions of sections 3060a124 and 3060a125, relating to alterations in negotiable instruments, and the effect thereof.

We think the case falls within the statute provision relied upon by appellant. It will be observed that the only subject being dealt with in subsection 3060a14 is the use in the preparation of a negotiable instrument of a printed blank designed for the purpose. And this must be kept in mind in arriving...