Richardson v. Monroe

• Decision Date: 20 May 1892
• Citation: 52 N.W. 339,85 Iowa 359
• Parties: RICHARDSON v. MONROE ET AL.
• Court: Iowa Supreme Court

85 Iowa 359

52 N.W. 339

RICHARDSON

v.MONROE ET AL.

Supreme Court of Iowa.

May 20, 1892.

Appeal from district court, Fremont county; GEORGE CARSON, Judge.

Action upon a promissory note executed May 9, 1889, by defendants for $204, payable “to the order of B. A. Tyner,” six months after date, indorsed in blank by Tyner, and “without recourse” by C. E. Taylor. Plaintiff alleges that he became the owner thereof for value before maturity. Defendants answered, admitting the execution of the note; denying that plaintiff became owner thereof for value before maturity; and alleging that the note was procured from them by false and fraudulent representations, and without any consideration. They alleged that the note was given in consideration of a writing executed to them by Tyner, assigning his right to the profits on machines under certain letters patent for a washing machine, for two townships named, and agreeing to furnish them with 24 machines at prices named, and to purchase back those not sold at the same price. They alleged that Tyner failed to furnish them with any machines, and that Taylor, who indorsed the note to plaintiff, was a conspirator with Tyner to cheat and defraud the defendants, and that plaintiff purchased the note with full knowledge of its fraudulent character, and that it was obtained without consideration. Plaintiff replied, denying the allegations of the answer, and moved to transfer the cause to equity, which motion was overruled, and the case tried by a jury. Verdict was returned in favor of the defendants, and judgment entered thereon, from which plaintiff appeals.Samuel Holmes, for appellant.

W. W. Morgan, for appellees.

GIVEN, J.

1. Appellant contends that it was error to overrule his motion to transfer the case to equity. The issues joined are upon the allegations of fraud and want of consideration in the note, and whether appellant purchased it for value before due, without notice of the alleged fraud and want of consideration. These are triable at law. There was no demand for a reformation of either the note or contract, or for any other equitable relief. The motion to transfer was properly overruled.

2. Appellant complains of the admission of certain testimony over his objection. Defendants were permitted to testify to what Tyner said to them before and at the time they executed the note. This was admissible, not to vary or contradict the writings, but to show the fraud alleged. Defendants were also permitted to testify to a conversation with Taylor, to whom Tyner assigned the note at a time when Taylor held it. It is charged in the answer that Tyner and Taylor had conspired to perpetrate the alleged fraud upon the defendants, and it is sought to charge appellant with notice through Taylor. Under these circumstances, the acts and declarations of Taylor were admissible as tending to show the conspiracy. Appellee Watkins, having executed the note by his mark, being asked, “You didn't sign the note that is sued on, did you?” answered, “No, sir.” Appellees contend that, as the execution of the note was admitted, this was prejudicial, and should have been withdrawn. Evidently the witness meant by his answer that he had not written the name, as later he stated: “We signed the note. I got some one to sign my name. Told him to sign it, or make my mark.” No question was made or submitted as to the execution of the note, and no misunderstanding or prejudice could have arisen from the statement complained of. William Green was permitted to testify to what Taylor said to him in the absence of appellant, as to the way he and Tyner were doing business in handling territory and notes. This was admissible, as tending to show the alleged conspiracy and fraud in connection with other testimony tending to show notice thereof to appellant.

3. Defendants were permitted to show by appellant, over his own objection, what amount he paid for the note, namely, $55. Thereupon appellant was asked by his own counsel, “What costs and expenses are there attached to this suit on this note?” also, “What costs has this suit occasioned you?”--to both of which appellees' objections were sustained. Under section 2114 of the Code, as amended by chapter 90, Acts 22d Gen. Assem., if this note was procured by fraud from the defendants, the plaintiff, though a purchaser for value before due without notice of the fraud, would not be entitled to recover thereon a greater sum than he had paid for the note, with interest and costs. In view of this statute, it was competent for appellees to show the amount paid for the note. Costs here referred to are the taxable costs in the case, and are not required to be proven. The interest to which appellant might be entitled was a mere matter of calculation from the amount paid. We see no error in these rulings of the court.

4. After all the testimony was introduced, appellant moved for a verdict for the...