Marengo Sav. Bank v. Kent
| Citation | 112 N.W. 767,135 Iowa 386 |
| Parties | MARENGO SAVINGS BANK, Appellee, v. JAMES KENT, Appellant |
| Decision Date | 03 July 1907 |
| Court | United States State Supreme Court of Iowa |
Appeal from Iowa District Court.--HON. O. A. BYINGTON, Judge.
ACTION upon twelve promissory notes executed by defendant to plaintiff bank. Defendant pleaded want and failure of consideration for part of the notes. He also pleaded that there was placed in said bank to his credit the sum of $ 1,708.34, with the agreement between him and plaintiff's cashier that the said amount should at once be applied upon the notes which defendant then owed the bank, and that any future money which defendant might need could be checked out and settled as an overdraft. He avers that the money was not in fact so applied, but that nevertheless the notes in suit were paid by this agreement for credit or cancellation. In reply plaintiff denied the allegations of the answer, and further pleaded that defendant had checked out all money deposited by him, leaving the notes in suit unsatisfied. It further pleaded that shortly before the commencement of this action defendant recognized the validity of the notes and promised to pay the same. On these issues the case was tried to a jury, resulting in a verdict and judgment for plaintiff and defendant appeals.
Affirmed.
Thomas Stapleton, for appellant.
Popham & Havner, for appellee.
Although something like seventeen errors are assigned, they are grouped in appellant's argument under six or seven different headings, but some of these overlap and will be considered together. Upon this appeal no question is made regarding the execution and delivery of the notes sued upon and no claim is now made that they were not based upon a sufficient consideration. It is contended, however, that they were paid and satisfied because of the transactions hereinafter to be referred to, and that the judgment should have been for defendant under the law and the facts. The notes were executed at various times during the years 1899, 1901, 1902, and 1903, and defendant claims that after all but two of them had been executed he held a public sale, and that it was agreed between him and the cashier of the plaintiff bank that the bank would cash the sale notes, and that the proceeds thereof should be applied in satisfaction of defendant's notes then held by the bank and notes taken up; that it was also arranged that defendant might issue checks against the bank, and that whatever they represented should be treated as an overdraft. There is no doubt that the bank received the proceeds of the sale notes, and that this amounted to something like $ 1,622.15; but defendant's notes were never cancelled or surrendered. The money was placed to defendant's credit on March 17, 1903, and defendant issued his checks against it from time to time, or, rather, he issued checks which the bank treated as drawn upon the fund created by the sale notes leaving the old notes unpaid. In brief, this is the transaction relied upon as constituting a payment of the notes.
I. During the trial a paper was handed the judge, which was denominated a "reply," pleading the matters referred to in the original statement of the case. The filing of this reply was not entered upon the appearance docket at the time, nor was it marked "Filed," but it was treated by all parties as having been filed, and the case was tried without objection upon the issues tendered thereby. Thereafter the trial court made an order for a filing nunc pro tunc of the reply as of date January 22, 1906. Error is predicated upon the submission of the case to the jury upon issues not properly pleaded; in that the reply was never in fact filed, and upon the court's ruling directing the reply to be filed nunc pro tunc. Even if a reply were necessary, which we do not at present determine, and conceding that a nunc pro tunc entry should not have been made, yet, as the case was tried without objection upon the theory that the issue tendered by the reply was in the case, there was no error of which defendant may complain. Hoyt v. Hoyt, 68 Iowa 703, 28 N.W. 27; Schopp v. Taft, 106 Iowa 612, 76 N.W. 843; Fenner v. Crips, 109 Iowa 455, 80 N.W. 526; Alexander v. Lodge, 119 Iowa 519, 93 N.W. 508; Benton Co. v. Boddicker, 117 Iowa 407, 90 N.W. 822; Carlson v. Hall, 124 Iowa 121, 99 N.W. 571; Warren v. Chandler, 98 Iowa 237, 67 N.W. 242; Humbert v. Larson, 99 Iowa 275, 68 N.W. 703.
II. It is contended that under the evidence and the instructions given by the...
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