Persia Sav. Bank v. Wilson

• Decision Date: 24 June 1932
• Docket Number: No. 41032.,41032.
• Citation: 243 N.W. 581,214 Iowa 993
• Parties: PERSIA SAV. BANK v. WILSON.
• Court: Iowa Supreme Court

214 Iowa 993

243 N.W. 581

PERSIA SAV. BANK

v.WILSON.

No. 41032.

Supreme Court of Iowa.

June 24, 1932.

Appeal from District Court, Monona County; A. O. Wakefield, Judge.

This was a proceeding by the plaintiff to establish against the estate of J. E. Wilson, deceased, a claim on a promissory note. There was a trial to a jury, resulting in a verdict for the defendant. From the judgment entered thereon, the plaintiff appeals.

Affirmed.William P. Welch and Robertson & Wolfe, all of Logan, for appellant.

Prichard & Prichard, of Onawa, and B. H. Morrison, of Mapleton, for appellee.

KINDIG, J.

William C. and Hattie Wilson, husband and wife, on June 1, 1925, borrowed from the Persia Savings Bank, the plaintiff-appellant, $3,300. For the purposes of that loan, the borrowers executed two promissory notes payable to the bank. One, for $600, became due June 1, 1926, and the other, for $2,700, matured June 1, 1928. These notes were secured by a second mortgage on certain real estate. This second mortgage was subject to a first mortgage of $7,500. Apparently the payment on the $600 note was extended so that both notes matured on June 1, 1928. A new note for $3,300, dated June 1, 1928, was executed by William C., Hattie, and J. E. Wilson for the purpose of renewing the indebtedness on the two old notes which, as before explained, had matured but had not been paid. Such last-named note was also secured by a new second mortgage upon the same land subject to the aforesaid first mortgage.

William C. and Hattie Wilson signed this last-named note October 30, 1928. There is a dispute, however, concerning the date on which J. E. Wilson affixed his signature thereto. The appellant pleads, according to the abstract, that J. E. Wilson executed the note November 7, 1930. Obviously, however, this is an error, and, according to the context, it is apparent the appellant intended to allege that J. E. Wilson executed the note on November 7, 1928. It is urged by the appellee in his answer, however, that J. E. Wilson did not sign the note on that date, but rather placed his name thereon after the transaction between the appellant and William C. and Hattie Wilson had been fully closed. Hence the appellee contends that there was no consideration for the signature of J. E. Wilson. J. E. Wilson died on November 10, 1928, and E. O. Wilson became the duly appointed, qualified, and acting administrator of the J. E. Wilson estate. Said administrator is the defendant-appellee in the present controversy. When the last-named note was filed by the appellant as a demand against the estate, the appellee refused to pay the same on the theory that there was no consideration for the signature of J. E. Wilson thereon.

By way of amendment to its petition, the appellant specifically pleaded a particular consideration as follows: That when the two original notes, aggregating $3,300, became due the appellant refused to extend the time of payment thereof unless additional security were given. Then it is alleged by the appellant that thereafter “the makers of said notes (William C. and Hattie Wilson) advised (the appellant) that J. E. Wilson would be in the town of Persia * * * within a few days and that he would sign as security for the said William C. Wilson and Hattie Wilson; that thereupon the note and mortgage herein sued upon (the renewal note and the mortgage securing the same) was signed and acknowledged by the makers and deposited at said bank to await the execution of the note by the said J. E. Wilson when he arrived; that thereafter and on the 7th day of November, (1928), the said J. E. Wilson called at said bank in company with William C. Wilson and in consideration of claimant extending the time of payment of said debt signed the note in suit; that thereupon the two prior notes held by said bank were withdrawn as bills receivable of said bank and the note in suit was delivered to claimant and accepted by claimant in payment thereof.”

Upon the issues thus raised by the petition and the answer, the cause was submitted to the jury and that body returned a verdict for the appellee. Accordingly, a judgment was entered, and the appellant appeals.

[1] I. At the outset, it is contended by the appellant that the district court erred in failing to sustain its motion for a judgment notwithstanding the verdict. Underlying this contention is the thought that appellee's answer did not plead a defense.

No defense was pleaded, the appellant contends, because the answer simply stated as a mere conclusion that there was no consideration. See Benton v. Morningside College, 202 Iowa, 15, 209 N. W. 516. So, the appellant asserts that the district court should have sustained its motion for a judgment notwithstanding the verdict.

In response to the appellant's contention, the appellee argues that the former did not attack the answer by motion or demurrer, but went to trial on the apparent issues raised by the answer, and therefore waived its right to insist upon the motion for judgment notwithstanding the verdict. Section 11145 of the 1931 and 1927 Codes, provides: “No pleading shall be held sufficient on account of a failure to demur thereto.” Following that section are sections 11150 and 11554 of the same Codes. Section 11150 contains the following provision: “When any petition, cross-petition, or counterclaim fails to state a cause of action, or any answer or reply a defense, advantage may be taken thereof by a motion in arrest of judgment, numbering and specifying the grounds thereof.” Section 11554 continues with the following statement: “Either party may file a motion in arrest of judgment, where the pleadings of the prevailing party wholly fail to state a cause of action or a complete defense, and a verdict has been returned in his favor.” Obviously, under the foregoing legislation, the mere failure to demur is not in itself sufficient to cause the party having a right thus to plead, to forfeit his privilege, otherwise possessed, of filing a motion for a judgment notwithstanding a verdict. See Millard v. Curtis, 208 Iowa, 682, 223 N. W. 489.

[2][3][4] Nevertheless, in the case at bar, the appellant has no just ground for complaint because the district court overruled its motion for a judgment notwithstanding the verdict. As said in Eilers v. Frieling, 211 Iowa, 841 (local citation 844), 234 N. W. 275, 276: “While perhaps the [[answer] may not be considered a model, and could have been more specific, yet it cannot be said that it wholly fails to state a defense, within the purview of the provisions of section 11554 of the Code. * * *” It is to be remembered that the appellant in its petition stated a specific and certain consideration. Because the petition contained a statement of a definite and certain consideration, the law will not presume that there was any other or different consideration. Beh v. Van Ness, 190 Iowa, 151 (local citation 155), 180 N. W. 292. Likewise, because the appellant pleaded a definite and certain consideration, it cannot now rely upon some other or different consideration. Blain v. Johnson, 201 Iowa, 961 (local citation 966, 967), 208 N. W. 273.

The answer was directed at that petition thus limited and confined. When so directing his answer, the appellee stated therein that the note in question was not signed on the date claimed in the petition, but at a later time after the instrument had been executed and delivered by William C. and Hattie Wilson. A fair construction of the answer is that because of the fact just related the signature of J. E. Wilson on the note was without consideration. Under the circumstances, and in view of the specific consideration pleaded by the appellant, the answer was sufficient to raise the question of no consideration. Thus the answer was interpreted by the appellant itself during the trial. Immediately after the trial commenced, the appellant sought an admission from the appellee that the only issue raised in the answer was one of no consideration. At other instances during the trial, the appellant also indicated that the issue of no consideration was before the court.

Finally, in a motion for a directed verdict, the appellant asked such relief on the theory that the issue of no consideration had not been proven. Consequently it is apparent that the appellant itself interpreted the answer during the trial as sufficient to raise the defense of no consideration. Therefore, under all the circumstances the district court did not err in overruling the motion for a judgment notwithstanding a verdict.

[5] II. Assuming the adequacy of the answer, the appellant declares, nevertheless, that the evidence was not sufficient to sustain that pleading.

Again the appellant's contention is without merit. Witnesses for the appellant testified that William C. and Hattie Wilson signed the last-named note and mortgage on or about October 30, 1928, but that J. E. Wilson did not affix his signature thereto until November 7, thereafter. This delay on the part of J. E. Wilson, the appellant maintains, was contemplated by the agreement between the parties. On the other hand, the appellee's witnesses declared that no agreement or understanding existed under which J. E. Wilson's signature was to be placed upon the note. Both William C. and Hattie Wilson testified to this. They said that neither of them had asked J. E. Wilson to sign the note, and they did not know that he was going to do so. So, too, these witnesses declared that neither of them heard any officer or employee of the appellant bank ask J. E. Wilson to sign the note. Furthermore, these witnesses said that the appellant did not demand the signature of J. E. Wilson on the note. Some demand for additional security, these witnesses say, was originally made by the appellant. In response thereto, William C. Wilson declares that he refused any additional security and told the officers of the bank that the second mortgage held by the appellant was sufficient...