Oakland Cemetery Ass'n of Lyons v. Lakins

• Decision Date: 15 December 1904
• Citation: 101 N.W. 778,126 Iowa 121
• Parties: OAKLAND CEMETERY ASS'N OF LYONS v. LAKINS ET AL.
• Court: Iowa Supreme Court

126 Iowa 121

101 N.W. 778

OAKLAND CEMETERY ASS'N OF LYONS

v.LAKINS ET AL.

Supreme Court of Iowa.

Dec. 15, 1904.

Appeal from District Court, Cerro Gordo County; C. H. Kelley, Judge.

Action to recover interest on a promissory note for the sum of $700 made by the defendants to one Boyd, and by Boyd's administrator (Boyd being dead) indorsed to plaintiff. Defendants filed an answer in two divisions, to which plaintiff filed a demurrer, which was sustained; and, defendants electing to stand on their answer, judgment was rendered against them for the amount of the interest claimed, and they appeal. Reversed.Glass, McConlogue & Witwer, for appellants.

Earl Smith, for appellee.

DEEMER, C. J.

As the sufficiency of the answer is alone involved, we here state the substance thereof: Defendants admit their signatures to the note, but deny the delivery thereof to the payee. They aver: That T. G. Boyd, the payee of the note, conveyed to them two lots in the town of Bockwell pursuant to an agreement, which was partly in writing and partly in print, whereby the defendants, in consideration of the conveyance, promised to pay said Boyd during his lifetime interest at the rate of 6 per cent. per annum upon $700. That, after this agreement and conveyance had been made, Boyd requested defendants to deposit with him some instrument in writing, in the form of a note or otherwise, to be held as evidence of their obligation to pay the interest, and as security for the payment thereof; the said instrument to have no other effect beyond its efficacy as evidence of and as security for the defendants' obligation to pay interest as aforesaid; the said note to remain in Boyd's possession until his death, and then to be surrendered to defendants. That, after making this agreement, Boyd wrote the defendants as follows: “As I said before, all I want is the interest of $700.00. I enclose a note for that amount. If it is satisfactory please sign the note, together with Mrs. Lakins, and send it to me and I will send the deed. I am unusually well and will be up some time for a good visit. Dont know whether I will go East. Yours truly, F. G. Boyd.” Defendants allege that the note was never delivered to Boyd as such, or as his property, and that it was simply to be held by him during his lifetime as evidence of and as security for defendants' obligation to pay interest, and that upon Boyd's death defendants became entitled to the possession of the note. They further alleged that they paid all interest down to the time of Boyd's death, and that plaintiff herein had full knowledge and notice of the agreement between the original parties at the time it acquired the note. The second division of the answer is largely a repetition of the first, except that it pleaded that there was no greater or other consideration for the note than defendants' receipt of the title to the lots, which was not worth more than they paid as interest on the note.

The demurrer was based on the grounds (1) that the answer shows full delivery of the note; (2) that the agreements pleaded by defendants were merged in the note, and, resting in parol, cannot be proved to contradict or vary the terms of the written instrument; and (3) that, as the note recites its own consideration, parol evidence is not admissible to change or vary the same. The case turns wholly on whether the facts pleaded constitute any defense, in law, to the interest claim on the...