Phillips v. Gifford

• Decision Date: 24 January 1898
• Citation: 104 Iowa 458,73 N.W. 1033
• Parties: PHILLIPS v. GIFFORD ET AL.
• Court: Iowa Supreme Court

104 Iowa 458

73 N.W. 1033

PHILLIPS

v.GIFFORD ET AL.

Supreme Court of Iowa.

Jan. 24, 1898.

Appeal from district court, Marshall county; O. Caswell, Judge.

Action on a promissory note. Judgment for plaintiff, and the defendants appealed. Affirmed.Anthony C. Daily, Theo. F. Bradford, and W. E. Bradford, for appellants.

J. L. Carney, for appellee.

GRANGER, J.

1. The action is upon a note in words as follows: “$500.00. Marshalltown, Iowa, July 8, 1895. June 1, 1896, after date, we promise to pay to F. S. Rockafellow, or order, five hundred dollars, with seven per cent. (payable annually) interest per annum from date (overdue interest and principal draws seven per cent. per annum), and reasonable attorney's fees for collection if action is commenced hereon. Payable at Marshalltown, Iowa. This note is conditional. If payor is obliged to abandon his present business on account of change of the liquor law by the next legislature of the state, then this note to be void; otherwise in full force. F. H. Gifford. I. B. Capron.” The note was indorsed to the plaintiff. After much contention over the pleadings, each party moved for judgment in his favor; each party presenting, as a ground therefor, that there were no disputed questions of fact, so that we may properly state the facts as we find them from the pleadings. It appears that the defendant Gifford and the payee in the note, Rockafellow, were, prior to the execution of the note, engaged in the saloon business in Marshalltown, Iowa, under the provisions of chapter 62, Acts 25th Gen. Assem., known as the “Mulct Law”; that the consideration for the note in suit was Rockafellow's undivided interest in the saloon, and the stock of liquor on hand, including whisky, beer, wine, and other intoxicating liquors kept for the purposes of sale by the drink. If it should be thought that was finding of fact that Gifford and Rockafellow were operating the saloon in Marshalltown under the provisions of the mulct law is not supported by the record, we may say that such is our conclusion from the admission of paragraph 4 of the reply. The averment in that paragraph that the firm was engaged in the sale of liquor under that law must be considered in connection with the averments in the preceding paragraph, to know what was meant. The admission of the facts stated in the paragraph carries with it the right to consider other facts essential to know its meaning, and from the reply it clearly appears that the intent of the pleading was to state the conclusion we have expressed. The legal situation may be summarized as follows: Where two persons are engaged in the sale of intoxicating liquors under the provisions of the mulct law, is a note for the interest of one of them supported by a valid consideration, and enforceable?

2. The legal contention arises largely over the words of the note, that: “This note is conditional. If payor is obliged to abandon his present business on account of a change of the liquor law by the next legislature of the state, then...