Massena Savings Bank v. Garside

• Decision Date: 10 April 1911
• Citation: 130 N.W. 918,151 Iowa 168
• Parties: MASSENA SAVINGS BANK, Appellant, v. R. A. GARSIDE
• Court: Iowa Supreme Court

130 N.W. 918

151 Iowa 168

MASSENA SAVINGS BANK, Appellant, v. R. A. GARSIDE

Supreme Court of Iowa, Des Moines

April 10, 1911

Appeal from Cass District Court.--HON.E. B. WOODRUFF, Judge.

ACTION on promissory notes and an overdraft aided by writ of attachment. Defendant admitted the indebtedness, and the only issues tried were raised by the counterclaim. Damages having been allowed thereon, plaintiff appeals. Reversed.

Reversed.

Thomas B. Swan and J. B. Rockafellow, for appellant.

Atchison & Weeks, for appellee.

OPINION

LADD, J.

When this action was begun, August 31, 1908, the plaintiff held ten notes executed by the defendant and he was owing it $ 363.60 on overdrafts. But two of the notes were past due, one for $ 362.65 and another for $ 108. Four others of the face value of $ 989.12 were payable later in 1908 three of the face value of $ 1,100 were payable in 1909, and one of $ 400 in 1910. The defendant refused to pay the notes due or the overdraft unless the band would surrender a $ 1,500 note held, as was claimed, by it as collateral security, though this was denied by defendant, and, after some negotiations, as he persisted in such refusal and declined to secure the indebtedness to the bank, this action on all the notes and overdrafts was begun, being aided by a writ of attachment which was levied on several parcels of real estate, a livery stock, a stallion, and a jackass. The sheriff retained the property seventeen days, when it was released by the execution of a bond conditioned to perform whatever judgment might be entered. The defendant admitted that but for the counterclaim plaintiff was entitled to recover on the several counts of the petition. In the counterclaim the writ of attachment was alleged to have been sued out without probable cause and with malice, and the defendant to have suffered damages aggregating $ 10,000. Forty-two errors are assigned, but only those essential to a proper disposition of the case will be considered.

I. The defendant testified that the use of the livery stock in connection with the barn was worth $ 60 per week. On cross-examination he named the expenses incident thereto, and said that about six weeks previous he had leased "practically the same outfit" he had prior to the attachment, except that he did not have quite as many horses. He was asked at how much per day, and an objection as immaterial, incompetent, and irrelevant was sustained. It should have been overruled. The leasing was but about six months subsequent to the time in question, and evidence of the rental he was to receive would have been material in determining the reasonable value of the use of which he was deprived by the levy of the writ of attachment.

II. Defendant claimed $ 400 as damages because of alleged injuries to an automobile while retained by the sheriff, and in support thereof testified that he had not had it examined since being returned to him, and that one man wanted to fix it. "Q. What did he say it would cost to fix it?" Objection as incompetent, immaterial, irrelevant, and hearsay was overruled and he answered: "Why, not to exceed hundred dollars." That this was hearsay and incompetent is manifest.

III. George Garside, a brother of defendant, testified to a conversation with the cashier of the bank after the levy of the writ of attachment, and was asked: "What did he say with reference to Robert Garside as to the notes or claims the bank held in this attachment suit?" Objected to as incompetent, immaterial, irrelevant; it not appearing that the declarations were made by the cashier when engaged in any business for the bank. This was overruled, and the witness answered: "Why, he claimed that my brother would not settle the overdraft. And I asked him why he did not see me before he run the attachment. Q. What reply did he make to that;" Same objection overruled. "A. He did not make any particular reply. I told him we had never refused to help my brother, and I thought he ought to let me know the circumstances before he ran the attachment. He advised me not to go on my brother's papers for anything." The plaintiff was not required to consult defendant's brother before instituting the suit, and the evidence tending to show delinquency in this respect should not have been received and was prejudicial. True, the first inquiry did not call for the answer given, but the defendant was subsequently permitted to show that the cashier impliedly conceded his neglect in this respect. The objections should have been sustained.

IV. The same witness testified to a conversation with the cashier after the levy of the writ of attachment concerning the $ 1,500 note held by the bank, according to its claim as collateral security, and the witness was asked, "What did he say about that?" The same objection above mentioned was interposed and overruled. "A. I offered to turn that Joy note to pay off all of Robert's individual notes that was given direct to the bank, and he refused to do it." Counsel for plaintiff then moved that the answer be stricken as incompetent for any purpose, whereupon the court overruled the objection. We think the motion should have been sustained. There was no showing that this witness had any authority from defendant to make such an offer, and, even if he had, it was but an offer of settlement which had no bearing on whether the attachment was wrongfully sued out, and was improperly received.

V. The evidence disclosed that a few days before the trial the president of the bank wrote a letter to the defendant proposing a compromise. Over objection as incompetent, the defendant was allowed to read in evidence the following excerpt from the letter: "If you do not, it will compel me to get ready for a trial, and, if you force me to fight you may rest assured that this proposition will not be good after Saturday of this week, and you can make your arrangements to fight the case to the bitter end because I will not stop until justice is done to the bank, no difference how long it takes or how much money is required. Trusting that you may take this letter in the spirit in which it is written, and with best wishes, I am, very respectfully yours, James E. Bruce." The...