Kerr v. Topping

• Decision Date: 07 October 1899
• Parties: KERR ET AL. v. TOPPING ET AL.
• Court: Iowa Supreme Court

109 Iowa 150

80 N.W. 321

KERR ET AL.

v.TOPPING ET AL.

Supreme Court of Iowa.

Oct. 7, 1899.

Appeal from district court, Van Buren county; F. W. Eichelberger.

Action at law upon a promissory note for the sum of $2,000 executed by defendants J. W. Topping and Ida B. Topping to Christopher Kerr, and indorsed by the administrator of the said Kerr to George W. Kerr. Defendants admit the execution of the note, but say that the same has been fully satisfied and discharged. Trial to a jury, verdict and judgment for plaintiffs, and defendants appeal. Reversed.Blake & Blake and Mitchell & Sloan, for appellants.

Wherry & Walker and Chas. D. Leggett, for appellees.

DEEMER, J.

On January 16, 1892, defendants Topping and wife were indebted to the estate of Christopher Kerr, deceased, on the promissory note in suit, to the amount of something over $3,000. At the same time Homer Topping, a brother of J. W., was also indebted to the estate on a note in an amount exceeding $2,500. At this time Kate Topping, the wife of Homer, held a note against J. W. amounting to something over $800. At the time mentioned, G. W. Kerr, the plaintiff, and J. W. Kerr, who was also made a party to the suit, made an arrangement with the Toppings, the exact purport of which is in dispute. The defendants contend that the arrangement was to the effect that the Kerrs should purchase the indebtedness of the Toppings to the Kerr estate, at a cost not exceeding $1,500; that they should loan J. W. Topping an additional $1,000, and that, as security for the money advanced, Kate Topping should turn over to the Kerrs the note she held against J. W. Topping, which should be signed by Ida B. Topping as soon as it was turned over; that Kate Topping should execute her note to the Kerrs for $550, and that J. W. Topping should execute a deed to the Kerrs for a certain mill property in the town of Grundy Center; and that thereupon the notes executed by the Toppings to Christopher Kerr should be considered satisfied and paid. They further claim that pursuant to this arrangement the Kerrs immediately purchased the two notes executed by the Toppings to Christopher Kerr, paying therefor but the sum of $500; that Kate Topping turned over the note she held against J. W. Topping, signed the $550 note, and received the $2,000 note executed to her husband, Homer; that J. W. Topping and his wife executed a deed to the Kerrs for the mill property; and that the Kerrs executed in return a defeasance contract as follows: “Grundy Center, January 19, 1892. This is to certify that we, James V. Kerr and Geo. W. Kerr, of Winchester, Iowa, hereby agree to deed back to John W. Topping and Ida B. Topping the mill and elevator this day deeded to us to secure the payment of $1,000.00 now loaned them, and $1,500.00 in settlement of all notes paid by us. And, if not paid in a reasonable time, then this deed shall be absolute.” There is a dispute regarding the terms of the contract of defeasance, and, as it was lost at the time of trial, parol evidence was offered for the purpose of proving its contents. The trial court left it to the jury to determine the contents of the instrument, and said: “In determining this question, you will not consider any prior conversation or negotiations between the parties, in so far as the contents of the writing are concerned, as the writing, when proven, must speak for itself.” This instruction was clearly incorrect. The evidence as to prior conversations and negotiations was offered, not for the purpose of contradicting or varying the terms of a written instrument, but to establish the contents of that instrument. Where there is a dispute as to the terms of a written instrument which is lost or destroyed, any relevant evidence which tends to establish its contents is admissible. Smith v. Brown, 151 Mass. 338, 24 N. E. 31;Com. v. Smith, 151 Mass. 491, 24 N. E. 677. Any evidence which tended to show the contents of the instrument in dispute was proper to be considered by the jury. True, plaintiffs produced a paper which they claimed was a copy of the contract; but this was denied by the defendants, and parol evidence as to prior conversations and negotiations was admissible, in order that the jury might determine the true import of the written agreement.

2. It is not necessary to state the plaintiffs' claims with reference to the arrangement made on the 16th of January. Suffice it to say that they differ very materially from those made by defendants. It is only necessary to state a few further claims made by defendants, in order to consider the next point made by them in argument. The mill property was in the name of Ida B. Topping, but the business was conducted by her husband. On June 28, 1892, she made an assignment for the benefit of creditors. It is contended that thereafter the Kerrs took possession of the mill, and exchanged the same for other property, the proceeds of which they received and devoted to their own uses. The defendants asked an instruction to the effect that if the parties made the agreement as claimed, which...