Second Nat. Bank of New Hampton v. Mielitz

• Citation: 233 N.W. 108,211 Iowa 218
• Decision Date: 18 November 1930
• Docket Number: No. 40552.,40552.
• Parties: SECOND NAT. BANK OF NEW HAMPTON v. MIELITZ.
• Court: United States State Supreme Court of Iowa

211 Iowa 218

233 N.W. 108

SECOND NAT. BANK OF NEW HAMPTON

v.MIELITZ.

No. 40552.

Supreme Court of Iowa.

Nov. 18, 1930.

Appeal from District Court, Mitchell County; M. F. Edwards, Judge.

Action at law on promissory note executed by defendant to S. R. Ure for $450, indorsed by Ure and held by plaintiff. Defense nonnegotiability and alleged agreement with original payee that note was intended as evidence of part payment of Ure's guaranty of a $2,400 note and mortgage of third parties sold by Ure to defendant's testator. Judgment for defendant. Plaintiff appeals.

Affirmed.

Geiser & Donohue, of New Hampton, for appellant.

W. H. Salisbury, of Osage, and Elbert K. Hendricks, of Riceville, for appellee.

MORLING, C. J.

[1][2] Jury was waived and case tried to the court. The case is not reviewable here de novo. The trial court's findings of fact must be sustained, if there is evidence to support them, regardless of our views upon the weight of the evidence.

[3] The note sued upon is payable to the order of S. R. Ure and contains this provision: “The makers and endorsers of this note each * * * agree to extension of time from time to time by any one of the signers.” By the rule of this jurisdiction the note is nonnegotiable. Cedar Rapids Bank v. Weber, 180 Iowa, 966, 164 N. W. 233, L. R. A. 1918A, 432;Quinn v. Bane, 182 Iowa, 843, 164 N. W. 788;Farmers' National Bank v. Stanton, 191 Iowa, 433, 182 N. W. 647, 17 A. L. R. 857;Townsend v. Adams, 207 Iowa, 326, 222 N. W. 878.

II. The note in suit is dated March 11, 1926, due in six months for $450, payable to Farmers' & Merchants' Bank, Riceville, and signed by the defendant in his individual name without qualification of capacity in which he signs.

The Farmers' & Merchants' Bank of Riceville, also known as S. R. Ure & Co., was a partnership of which S. R. Ure was one of the partners. Heschke and wife gave to S. R. Ure & Co. a note for $2,400, dated May 23, 1924, due in five years with acceleration clause, secured by mortgage. C. A. Mielitz, defendant's father, purchased this note and mortgage of S. R. Ure & Co., taking from them an assignment by which they guaranteed payment. C. A. Mielitz died December 13, 1925, leaving a will which was admitted to probate February 16, 1926, and by which defendant was made residuary legatee and appointed executor. Plaintiff obtained defendant's note here sued on March 17, 1926. Defendant learned about August 6, 1926, that the note was held by plaintiff. The Heschke note, though in default, has not been paid. Defendant's claim is that his father purchased of S. R. Ure & Co. the Heschke paper on their guaranty and agreement that, if the father needed money at any time, the bank would let him have it or cash the paper; that pursuant to this agreement he told Ure that he needed money to settle up the affairs of the estate and asked him to cash the Heschke mortgage; that Ure said he would advance defendant $450 on the Heschke paper and later would probably be able to take it up, and that the $450 was credited to defendant by Ure and the note sued on given as a memorandum of the transaction. Plaintiff argues that defendant held the Heschke paper as executor and not as residuary legatee; that S. R. Ure & Co.'s guaranty of that paper was held by defendant in a different capacity than that in which he signed the note, and therefore the respective liabilities thereon were not subject to offset; that the testimony of the alleged verbal agreement tended to vary or contradict the terms of the note; that the evidence does not sustain defendant's contention.

Plaintiff's argument is based upon its abstract, but the defendant has filed amendment to abstract, and the amendment is not denied. According to the amendment, defendant testified: “The debts of the estate were in fact paid from money borrowed to pay them. The debts were paid from my share of the property in my father's estate. I took over the rest, residue and remainder of this property and paid the debts. * * * Did you know who held and claimed the Heschke note and mortgage or the amounts that might be derived therefrom at the time this note Exhibit A was given? (the $450 note sued on). A. Yes sir, I did.” Defendant further testified with respect to the signing of the note sued upon that he had a talk with Ure in the bank: “Q. How did you happen to go into the bank at the time that you had this talk with him?” This is objected to by the plaintiff as asking for conclusion and self-serving. The objection is overruled. The witness answered the question as follows: “It was necessary for me to secure some money to straighten up affairs of my father's estate, and so I asked Mr. Ure if he would cash this Heschke mortgage for me, the payment of which his bank had guaranteed--I told Mr. Ure that I needed the money to settle up estate affairs in my father's estate; Mr. Ure then told me that times were hard at that time, and said: ‘Well, times are a little hard now,’ and advised me to keep the mortgage, and said that he would do the best he could, and that he would advance about $450.00--and he then wanted a note to show the advancement or payment of the $450.00, and so I gave my note to Mr. Millbrandt (cashier) at the time--there were really two times. The witness continued: ‘The Heschke...