Klaman v. Malvin

• Decision Date: 16 June 1883
• Citation: 61 Iowa 752,16 N.W. 356
• Parties: KLAMAN v. MALVIN AND OTHERS.
• Court: Iowa Supreme Court

61 Iowa 752

16 N.W. 356

KLAMAN

v.MALVIN AND OTHERS.

Supreme Court of Iowa.

Filed June 16, 1883.

Appeal from Buchanan circuit court.

Action upon two promissory notes. In a trial between plaintiff and defendant Cloud there was a judgment upon a verdict for defendant. Plaintiff appeals. The facts of the case appear in the opinion.J. M. Brayton and E. C. Perkins, for appellant.

Fouke & Lyon and C. B. Kennedy, for appellee.

BECK, J.

1. The notes in suit purport to have been executed by Phillip S. Malvin, Joseph Malvin, E. T. Malvin, William Malvin, Samuel Malvin, and Marion Cloud. They are payable to the order of plaintiff. As a defense to the action, the defendant Cloud alleges in his answer that he signed the notes as surety of the principal maker, Phillip S. Malvin, under an agreement, of which plaintiff had full notice and information; that the signatures of the other makers should be first obtained to the notes as principals, and that upon this condition defendant would sign them; that the notes were signed by Phillip S. Malvin, but the signatures of the other makers were forgeries, being written by Phillip S. Malvin in the presence of plaintiff, who had full knowledge that the signatures were not genuine; and that Phillip S. Malvin represented to defendant in the presence of plaintiff that the signatures were genuine, and that, in order to defraud defendant, plaintiff kept silent and gave defendant no information of the forgeries. The issues raised by defendant's answer involve the arrangement between defendant and Phillip S. Malvin that defendant was to sign the notes as surety on condition they were executed by the other persons, the forgery of their signatures, and the knowledge of plaintiff of the arrangement and of the forgeries, and his concealment thereof from defendant.

2. We will proceed to consider the objections to the judgment presented by the assignment of errors insisted upon in argument by plaintiff's counsel. The defendant testified in his own behalf. Upon his cross-examination he was asked if he had heard the other defendants testify that Phillip S. Malvin had the right to sign their names to the notes. Objection was made to the question, which was sustained. The record fails to show what fact plaintiff proposed or expected to prove by the testimony given in response to the question, or that the witness would have testified to any fact of advantage to plaintiff. No prejudice is, therefore, shown to have resulted to plaintiff by the ruling which prevented the answer to the question, and it cannot be now urged as error. Jenks v. Knott's Mexican Silver Mining Co. 12 N. W. REP. 588.

3. The instructions given by the court are not assailed in the assignment of errors, but the refusal to give certain instructions is complained of by plaintiff. We will proceed to consider these objections. The court was asked to instruct the jury that if they found plaintiff received the notes in suit without the knowledge of the forged signatures, the plaintiff is entitled to recover. The instruction was refused. It had been given in substance with the addition that, if plaintiff had cause to doubt the genuineness of the signatures, and knew...