Mosnat v. Uchytil

• Decision Date: 09 January 1906
• Citation: 105 N.W. 519,129 Iowa 274
• Parties: MOSNAT v. UCHYTIL.
• Court: Iowa Supreme Court

129 Iowa 274

105 N.W. 519

MOSNAT

v.UCHYTIL.

Supreme Court of Iowa.

Jan. 9, 1906.

Appeal from District Court, Tama County; Obed Caswell, Judge.

Suit on a note and to foreclose a mortgage given to secure its payment. Judgment for the plaintiff on the pleadings. The defendant appeals. Affirmed.W. C. Scrimgeour, for appellant.

Randall & Harding, for appellee.

SHERWIN, C. J.

The plaintiff is the executrix of the estate of J. J. Mosnat, deceased, and brought this suit on an ordinary promissory note given to Mosnat by Frances Ftipil, also deceased. The defendant is the executor of the estate of Frances Ftipil, as well as her sole devisee and heir. He answered the petition in this dual capacity, filing separate answers, in both of which he pleaded that Frances Ftipil had employed J. J. Mosnat as her attorney in a criminal action wherein she was the defendant, and that she then orally agreed to pay him a reasonable amount for such services as he should thereafter render in her behalf, and that the note and mortgage sued on were given to insure payment under such agreement. Both answers further alleged that said Mosnat rendered the services agreed upon, and that the reasonable value thereof was $300. Both answers were demurred to on the same ground, the demurrer to the answer as executor was sustained, and, the defendant refusing to further plead as such executor, judgment was rendered for the plaintiff establishing the note as a claim against the estate of Frances Ftipil, and decreeing the mortgage a valid and superior lien on the property covered thereby, and ordering a special execution for its sale. The demurrer to the answer as heir and devisee does not seem to have been ruled on.

The defendant urges that he pleaded a partial failure of consideration, and that the demurrer should have been overruled because of the rule that, as between the parties to the instrument or their privies, a want or failure of consideration in whole or in part may be shown by parol. Code, § 3070; Marsh v. Chown, 104 Iowa, 556, 73 N. W. 1046;Bank v. Felt, 100 Iowa, 680, 69 N. W. 1057. But the answer does not plead a want or failure of consideration. On the contrary, it alleges that the service agreed upon was fully performed, but seeks to avoid payment of the note in full by the plea that a different consideration was agreed upon. That the execution of the note and the oral agreement pleaded were contemporaneous acts is clearly shown by the answer itself; and, that being shown, it is equally as clear that...