McDonald v. Jackson
| Decision Date | 19 October 1881 |
| Citation | 56 Iowa 643,10 N.W. 223 |
| Parties | MCDONALD v. JACKSON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Monroe circuit court.
The petition contained seventeen counts, but no claim is made on this appeal except on the second and sixteenth, on which there was a trial to the court, judgment for the defendant, and plaintiff appeals.H. L. Dashiell, for appellant.
Perry & Townsend, for appellee.
The substance of the second count in the petition is: That on or about April 5, 1872, the defendant executed and delivered to one Willcox his note for $179.34, with 10 per cent interest from date; that said note had been destroyed, and therefore the plaintiff was unable to attach a copy to the petition. Following this count there were 13 other counts, which are not set out in the abstract, in which, as we understand, a recovery was sought on other notes and accounts; all of which notes, including the one described in the second count, had been destroyed, as plaintiff alleged, under the following circumstances: On the twenty-second day of April, A. D. 1873, the said defendant and the said Jeremiah Willcox met for the purpose of settling and adjusting the amount due from the said defendant to the said Willcox; that thereupon all the notes hereinbefore described, together with a certain book-account held by the said Willcox against the said Jackson, were embraced and included in a note for $6,088, dated April 22, 1873, executed by said defendant, and made payable by the direction of said Willcox to this plaintiff, and payable four years after date, and thereupon the said notes held by the said Willcox against the said Jackson were given up to the said Jackson, and the same destroyed; that on the eleventh day of September, 1877, the plaintiff instituted a suit on the note of April 22, 1873, and the mortgage given to secure the same, in which suit it was finally decided, at the October term, A. D. 1879, of the supreme court of Iowa, that said note and mortgage were fraudulent and void, and that plaintiff's only remedy was to sue for the amount due from the said defendant to the said Willcox at the time said note of April 22, 1873, was executed, wherefore she brings this suit upon the notes and mortgage hereinbefore described.”
The defendant demurred to said count, and the same was overruled, and thereupon an answer was filed in which the defendant admitted he had executed to said Willcox a note for about $179, but denied he was indebted thereon, because the same had been destroyed by the fraudulent act of Willcox, as stated at length in the answer, but which may not be repeated here, it being sufficient to state the fraud relied on is the same as that found by the court in Willcox v. Jackson, 51 Iowa, 208; the note sued on being one of those upon which it was claimed the settlement referred to in that case was based.
1. It is urged by counsel for the appellant, as the demurrer was overruled, the court must have held, upon the facts stated in the petition, the plaintiff was entitled to recover, and as he insists the same facts and nothing additional was alleged in the answer than stated in the petition in relation to the settlement and new...
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