Millard v. Curtis
Decision Date | 12 February 1929 |
Docket Number | No. 39198.,39198. |
Citation | 208 Iowa 682,223 N.W. 489 |
Parties | MILLARD ET AL. v. CURTIS. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Harrison County; H. J. Mantz, Judge.
Action at law by the trustees of a bank, which had been in the hands of a receiver, to recover on defendant's promissory note to the bank. Jury waived. Judgment for plaintiff. Defendant appeals. Affirmed.Robertson & Wolfe, of Logan, for appellant.
Bolter & Murray, of Logan, for appellees.
[1] The note sued on is in common form, payable to the order of Dunlap State Bank, signed by defendant as sole maker. The answer is in two divisions, one a general denial and the other by separate division The only evidence in support of this plea is that of defendant and her daughter as follows: Defendant testifies: It was stipulated that the daughter “would testify to the same state of facts as her mother, the defendant, has testified to herein as to the execution of the note, Exhibit 2, and that it is to be considered by the court that her testimony as to said matter had been given and is the same as her mother's testimony as to that matter.”
Book entries claimed to be those of the bank were received in evidence without laying proper foundation. Plaintiffs contend that, regardless of error in the admission of evidence offered by them to sustain the note as on sufficient consideration, consideration was presumed, defendant's evidence failed to negative consideration, plaintiffs were entitled to judgment as matter of law, and errors in admission of evidence offered by them were without prejudice. In her reply argument defendant takes the position that by separate division of her answer she alleged as a separate and complete defense the matters which have been quoted; that her evidence proves them, and that, as the sufficiency of the answer was not questioned in the trial court, it cannot be questioned here; that, as the undisputed evidence sustains her allegations, she was entitled to judgment under the doctrine of Ormsby v. Graham, 123 Iowa, 202, 98 N. W. 724;Heiman v. Felder, 178 Iowa, 751, 160 N. W. 234;Roberts v. Ozias, 179 Iowa, 1143, 162 N. W. 584;State Bank v. Piano Co., 195 Iowa, 1154, 193 N. W. 403.
[2] It appears from the allegations of the division of the answer in question that they are intended to raise the defense of want of consideration. The premised facts, as alleged therein, were not sufficient to sustain the conclusion alleged that the note was by reason of them without consideration. Consideration might consist not merely in benefit to defendant but inconvenience or detriment to or waiver by the bank. Downey v. Gifford (Iowa) 218 N. W. 488. Am. Law Institute Restatement of the Law of Contracts, § 75. The defendant admits signing the note and intrusting it to her husband who was the managing officer of the bank. That it was delivered to the bank is not questioned. Its delivery was for some purpose. Whether or not there was consideration for the note would depend not merely on whether defendant received, or was promised, anything from her husband, or from the bank for her signature, not merely on whether she herself owed the bank anything, or up to that time had borrowed any money from the bank, or had transacted any business of any kind herself with the bank. Consideration would not depend on whether she transacted “any of the...
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