Sax v. Drake

• Decision Date: 10 June 1886
• Citation: 69 Iowa 760,28 N.W. 423
• Parties: SAX v. DRAKE AND OTHERS.
• Court: Iowa Supreme Court

69 Iowa 760

28 N.W. 423

SAX

v.DRAKE AND OTHERS.

Supreme Court of Iowa.

June 10, 1886.

Appeal from Wapello circuit court.

Action upon a promissory note and mortgage. The defendants pleaded payment. There was a decree for the plaintiff. The defendants appeal.Williams, Jaques & Adler, for appellants.

H. B. Hendershott and Sloan, Work & Brown, for appellee.

ADAMS, C. J.

The note was made payable to J. O. Briscoe or bearer, and was delivered to him, and by him to the plaintiff. The amount due thereon was afterwards paid to Briscoe, whom the maker, Drake, supposed was still the holder. Drake avers, however, that the payment to Briscoe was good, notwithstanding the fact that he had transferred the note by delivery to the plaintiff, because Briscoe had been, and was at the time of the payment, the agent of the plaintiff, duly authorized to receive the payment in question. The plaintiff denies such agency, and the question as to whether Briscoe was the agent of the plaintiff, authorized to receive payment, is the question in the case.

Before proceeding to determine it, it seems proper to advert to an objectionable remark made by the appellant's counsel in the opening part of their argument. The counsel say: “In the first place, it is proper to state that J. B. Sax and Charles Sax are the sharpest clothing dealers among the Jewish merchants of Ottumwa, Iowa.” We take issue with the counsel. It was not only not proper to so state, but it was highly improper. The counsel do not, of course, claim that in this court one rule of law is to be applied in determining the rights of Jews, and a different one in determining other persons' rights. But the remark justifies the inference that the counsel supposed that the members of this court were not Jews, and possibly had a prejudice against them; and possibly, if they had, were not above being influenced by such prejudice. We would probably be justified in striking the whole argument from the files as containing a remark disrespectful to the court; but we think best merely to say that the remark meets with our disapprobation.

Coming now to the merits of the case, we have to say that it appears to us that Briscoe was authorized to act for the plaintiff in the receipt of the payment. We have each of us reached this conclusion upon a separate reading of the evidence. The note in question was given for borrowed money, and it is undisputed that the money borrowed was advanced by the plaintiff. Briscoe was...