Miller v. Root

• Decision Date: 18 May 1889
• Parties: MILLER v. ROOT ET AL.
• Court: Iowa Supreme Court

77 Iowa 545

42 N.W. 502

MILLER

v.ROOT ET AL.

Supreme Court of Iowa.

May 18, 1889.

Appeal from district court, Des Moines county; J. M. CASEY, Judge.

Plaintiff sues to recover balance upon two promissory notes,--one dated September 29, 1878, due six months after date, for $1,000; and one dated September 11, 1879, due on or before two years after date, for $2,000. The defendant Root, answering, admits the execution of said note, and alleges as defense that on or about the 15th day of September, 1880, he and the plaintiff, through her agent, E. McKitterick, made a verbal contract, wherein it was agreed that, for a valuable consideration, then paid to plaintiff by defendant, plaintiff would extend the time for the payment of said notes for a period of 10 years from the dates thereof; that the consideration paid was the procuring and obtaining by defendant of 100 shares of the capital stock of the Centennial Mutual Life Association of Burlington, Iowa, for the use and benefit of said McKitterick, and the securing and giving to said McKitterick a lucrative position in said association at a large salary, which position was accepted by the said McKitterick, agent for plaintiff; that said McKitterick, as agent for plaintiff, loaned the money to defendant Root, evidenced by said notes, and that McKitterick at the time of making said agreement represented to defendant Root that he had full power and authority to make the same as plaintiff's agent, and to receive said consideration, and that he acted in the premises with the full knowledge and consent of the plaintiff. Defendant avers that said agreement was made, and said consideration paid and accepted, with the full knowledge and consent of the plaintiff; wherefore he says that said notes have not matured, and are not due. The defendant Scarff, answering separately, admits the execution of said notes, and avers that he executed the same as security only for his co-defendant, Root; that plaintiff, at the time of the execution of said notes and ever since, knew that he executed them as such security; that plaintiff and defendant Root, without his knowledge or consent, agreed upon an extension of time, as alleged by the defendant Root. Upon these issues the case was tried to a jury. Verdict for plaintiff, and defendants appeal.S. L. Glasgow, for appellants.

Thomas Hedge and H. C. Hadley, for appellee.

GIVEN, C. J.

1. There is no controversy in the testimony but that Scarff signed the notes as surety, and that whatever agreement, if any, was made for an extension of time, was without his knowledge or consent. The only issue, therefore, is as to the alleged agreement for an extension of time. Neither of the answers alleges that McKitterick had general authority, as agent of plaintiff, to make such agreements, nor that, having made the alleged agreements, the plaintiff subsequently ratified the same. The defense alleged is that McKitterick made the agreement and received the consideration as agent for plainti...