Porter v. Tenant
| Decision Date | 05 February 1924 |
| Docket Number | No. 35650.,35650. |
| Citation | 197 N.W. 79,197 Iowa 200 |
| Parties | PORTER v. TENANT. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Guthrie County; Lorin N. Hays, Judge.
Action upon a promissory note. Verdict and judgment for plaintiff. Defendant appeals. The opinion states the facts. Affirmed.W. D. Milligan, of Guthrie Center, for appellant.
Batschelet & Vincent, of Guthrie Center, for appellee.
This action is at law to recover the amount due on a promissory note of the appellant for $450 given on July 7, 1919, to the appellee. No date of maturity is stated in the note, but upon the margin the following appears:
“It is agreed that this note is not to fall due until the $2,000.00 mortgage given by Denny on Adair mill can be cashed.”
The facts surrounding the execution of the note are, briefly stated, as follows: The appellant, in the capacity of broker, had for sale a mill in Adair. The appellee, acting in a like capacity, had a prospective purchaser in the person of one Denny. They met, and the appellant represented to appellee that the owners would take $3,250 for the mill. A written contract was entered into between appellant as agent and Denny whereby the property was sold to the latter for $3,900 to be paid $500 in cash at the execution of the contract, a note of $1,400 due in 60 days, and a mortgage on the mill for $2,000. While the contract is not explicit on the subject, it is clear the understanding was that the title to the property was to be conveyed and the $2,000 mortgage executed on the payment of the $1,400 note. After the execution of the contract of sale, the note in question was given, representing appellee's commission for procuring the purchaser. Thereupon appellant purchased the mill from owner, taking a deed in blank, for a consideration of $3,050.
The $1,400 note was not paid at maturity, and the time of payment was extended by appellant. The appellant inserted the name of his brother, H. R. Tenant, in the blank deed, and on September 1, 1920, the latter executed a mortgage covering the mill property to the Republic Life Insurance Company, of which appellant was secretary. This mortgage was without consideration, but was intended to be, and was by the insurance company, deposited with the insurance department of the state for purposes of its own. The mortgage and the deed referred to were filed for record March 28, 1921, and the mortgage appears never to have been released or canceled of record. The appellant holds a deed in blank from H. R. Tenant for the property. Denny's note for $1,400 has been paid, the final payment being made January 11, 1921. The mortgage for $2,000 provided for by the contract of sale of the mill and referred to in the note in suit has never been executed by Denny. The petition in this action was filed September 23, 1922.
[1][2] The court instructed the jury that the note was due, and said, in effect, that appellant was entitled to a reasonable time after its execution within which to complete the trade with Denny, secure the mortgage contemplated by the note, and realize upon or negotiate it, and that the note in suit matured and began to draw interest at the expiration of such reasonable time; and directed the jury to determine when that was. The charge appears to have followed the rule announced in Dille v. Longwell, 188 Iowa, 606, 176 N. W. 619. No exceptions to the instructions were preserved by motion for a new trial or otherwise, and any error assigned predicated upon them cannot be considered. Jamison v. Ranck, 150 Iowa, 5, 129 N. W. 325;Anthony v. O'Brien, 188 Iowa, 802, 175 N. W. 750. Moreover, they must be deemed to state the law of the case. Troxel v. City of Vinton, 77 Iowa, 90, 41 N. W. 580;Beck v. German Klinik, 78 Iowa, 696, 43 N. W. 617, 7 L. R. A. 566;Greenlee Bros. v. Eggert, 137 Iowa, 120, 113 N. W. 849;Eldridge v. Stewart, 97 Iowa, 689, 66 N. W. 891;Krauskopf v. Krauskopf, 82 Iowa, 535, 48 N. W. 932;Baird v. Railway Co., 55 Iowa, 121, 7 N. W. 460;Browne v. Hickie, 68 Iowa, 330, 27 N. W. 276.
[3][4][5][6][7][8] Error is assigned on numerous rulings on the admission of testimony. Denny, as a witness, was permitted to testify over objection that he had received letters from appellant relative to extending the time of payment of the $1,400 note. He produced the letters which were put in evidence. Appellant subsequently admitted writing them, Clearly there was no prejudicial error here. He was further allowed to say, in reference to the statement in one of the appellant's letters, “If you will pay $500 and the interest to date we will agree to carry the balance for you for another year at 12 per cent. as you state in your letter,” that the $500 mentioned referred to the payment on the $1,400 note, and that the balance mentioned was the balance of that note. The letter in which the statement appeared was evidently in reply to a letter of the witness. The testimony was not prejudicial. There was no error in allowing this witness to testify that he had asked appellant for a deed and that he was ready to and would have executed the note and mortgage on receipt of a deed. He was asked whether, upon his writing appellant asking him to execute a deed and send a note and mortgage for execution, the latter took any action toward carrying that out, and was permitted to answer that he did not. The question was not vulnerable to the objection made that it was incompetent, irrelevant, and immaterial, and called for secondary evidence. We think the witness, who was under contract to accept a conveyance of the property and execute a mortgage thereon, was rightfully permitted to testify to his knowledge of the fact that the record title stood in the name of H. R. Tenant and that the record showed the latter had given a mortgage upon it for $2,000....
To continue reading
Request your trial