Roundy v. Kent

• Decision Date: 10 March 1888
• Citation: 75 Iowa 662,37 N.W. 146
• Parties: ROUNDY v. KENT.
• Court: Iowa Supreme Court

75 Iowa 662

37 N.W. 146

ROUNDY

v.KENT.

Supreme Court of Iowa.

March 10, 1888.

Appeal from circuit court, Marshall county; D. D. MIRACLE, Judge.

This is an action brought by William H. Roundy for the reformation of a written contract, and to recover $5,000 thereon, and for other relief. Defendants deny the alleged causes of action of plaintiff and defendant. Volney Kent asks for affirmative relief. The circuit court dismissed the petition as to defendant Snow, and rendered a decree in favor of plaintiff, and against defendant Kent. From this decree Kent appeals.J. H. Bradley, for appellant.

Brown & Carney, for appellee.

ROBINSON, J., ( after stating the facts as above.)

The plaintiff brings suit upon an agreement signed by himself and defendant Snow, of which the following (omitting list of notes) is a copy:

“This article of agreement, made and entered into this 1st day of October, 1878, by and between Wm. H. Roundy, party of the first part, and B. L. Snow, party of the second part, witnesseth that, for value received, the said second party, or assigns, agrees to pay to the said first party the sum of seventy-three (73) cents on each and every dollar realized by the said second party, or assigns, from the following described promissory notes, this day sold by the said first party to the said B. L. Snow, after deducting all of the attorney fees in case where suit is commenced to collect said notes, and after deducting all interest now due, or to become due, on said notes. * * * And it is further agreed that the said first party shall receive of the said second party, or assigns, all horses, wagons, buggies, cattle, hogs, or any other property or renewed notes, the same as cash, at the valuation which the said second party, or assigns, may take said horses, wagons, buggies, cattle, hogs, or other property, or at the face of the renewed notes aforesaid. The above-mentioned seventy-three cents on each dollar realized on said notes, after deducting all the attorney fees in case of suit, and all interest due, or to become due, on said notes, as herein before specified, is to be paid to the said Wm. H. Roundy by the said B. L. Snow, or assigns, as fast as the said B. L. Snow, or assigns, shall receive the same. And it is expressly understood that if the above-described notes, or any one or more of them, are worthless, the said B. L. Snow, or assigns, shall charge the same to the said Roundy as cash for their amount at the date they are proved worthless; the said Roundy hereby representing that said notes are good at the date of his transferring them to the said second party. And the said second party hereby agrees to use due diligence in collecting said notes. In case said notes cannot otherwise be collected, the same shall be put into judgment.

WM. H. ROUNDY.

B. L. SNOW.”

On this agreement was written an assignment from defendant Snow to defendant Kent, as follows:

“For value received, I hereby sell, assign, set over, and deliver to Volney Kent all my right, title, and interest in and to or any benefit whatever that may be derived from the within contract, and notes therein described, without recourse.

B. L. SNOW.”

“ This 7th day of May, 1879.”

When the agreement was signed, one or more notes of Snow were given to secure the performance on his part of this agreement. The assignment was made with the knowledge and consent of plaintiff, the note or notes of Snow surrendered, and a note of Kent taken in lieu thereof. The last-named note appears in the record, and provides, in terms, that it is given “simply to secure performance of a contract in writing.” It is contended on the part of plaintiff that the writing signed by himself and Snow does not correctly represent the real agreement; that he did not read it when signed, and did not know its contents; that at that time he was advanced in years, and eye-sight dim; that he was without his glasses, and unable to read writing readily; that he had great confidence in defendants, and was governed by their advice, and signed without scrutinizing the instrument as carefully as he would, had not the relation of attorney and client existed between them; that the paper was read to him by Snow, but not as written; that it was read and explained to him to be in accordance with the verbal agreement of parties, which was that the notes were not to be sold, but were to be transferred for collection only; that plaintiff was to have 73 per cent. of the face of the notes, and interest; that the interest was to be divided between plaintiff and Snow, share and share alike; that only personal property, including money, could be received in payment; that the clause in regard to the charging to plaintiff all worthless notes in cash was fraudulently inserted by defendants in lieu of the agreement made, which was that such notes should be returned to plaintiff, and credited at 73 per cent. of amount due thereon on the collateral security, or stricken out. The petition further states that the assignment of the contract to Kent was not in good faith; that both defendants are jointly interested therein; that they have collected $3,015, of which they have accounted for but $150. A due-bill for $151.07, dated August 13, 1879, bearing interest at 10 per cent., and signed by Kent, is also set out. Plaintiff asks that the contract be construed and reformed, and that judgment be rendered for the amount due. The answers admit the making of the contract and assignment, but deny all fraud, and alleged secret agreements. Defendant Kent alleges that the due-bill is without consideration, and was the result of an error in computation; that plaintiff is owing to him, on account of the agreement, about $1,400, with interest thereon...