Starry v. Starry
| Decision Date | 13 January 1931 |
| Docket Number | 40607 |
| Citation | 234 N.W. 281,212 Iowa 274 |
| Parties | LEWIS E. STARRY, Appellant, v. STARRY & LYNCH et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED APRIL 11, 1931.
Appeal from Jones District Court.--ATHERTON B. CLARK, Judge.
Action at law upon a promissory note signed by the defendants Wilbert Starry and Glenn Lynch. The execution was admitted. Defense was interposed by defendant Lynch alone. Such defense was that there was no consideration for his signature. There was a trial to the jury and a verdict for the defendant and judgment thereon. The plaintiff has appealed.
Reversed.
James W. Wilson, Charles O. Holly, and J. E. Remley, for appellant.
Park Chamberlain and Donnelly & Lynch, for appellees.
EVANS J. FAVILLE, C. J., and STEVENS, DE GRAFF, ALBERT, MORLING and KINDIG, JJ., concur.
The case was before us on a former appeal, 208 Iowa 228, 225 N.W. 268. This was an appeal by the defendant from a judgment rendered against him. The case was remanded for a new trial upon reversal here. None of the material questions now presented, were considered or involved in that appeal.
The note in suit is for $ 17,000. It was given in July, 1920, as a part of the purchase price of the plaintiff's interest in his father's estate. Such interest was conveyed by him to his brother, Wilbert Starry, defendant herein.
It appears that on July 22, 1920, Lewis Starry, Sr., a resident of Olin in Jones County, died intestate and left surviving him his widow, Mary, and his two sons, Lewis and Wilbert, parties hereto, and a granddaughter, Mrs. Edith Starry Hoff, the only child of a deceased son. His estate comprised an unencumbered farm of 294 acres in Jones County, and his residence property in Olin, and about $ 7000 in moneys and credits. At the time of his death, his son Lewis was a resident of Milford, Dickinson County, Iowa, and Mrs. Hoff a resident of Minneapolis. Wilbert was a resident of Jones County. Both Lewis and Mrs. Hoff were present at the time of Starry Sr.'s death and at the time of his funeral. Following the funeral some negotiations were had as between Wilbert on the one hand and the other heirs and the widow on the other, which resulted in the acquisition by Wilbert of all the estate of his father. Pursuant to these negotiations Lewis was to receive the sum of $ 25,000 for his interest therein. This consideration was received by Lewis in the form of two notes of $ 8000 and $ 17,000 respectively, and both of them signed:
While these negotiations were pending, certain negotiations were had also between Wilbert Starry and Glenn Lynch, who was his son-in-law and who was cashier of the bank of Olin. These latter negotiations contemplated the acquisition of an interest by Lynch, jointly with his father-in-law, in the property thus to be purchased. As claimed by plaintiff, it was because of, and pursuant to, these negotiations that Lynch signed the notes with his father-in-law. The venture, made in the fateful year of 1920, proved of course disastrous. No benefit was ever realized therefrom by Lynch, nor by Wilbert,--the farm having been wholly lost to both of them. It is not claimed that the failure of the venture destroyed the consideration for the notes. The theory of defense put forward by defendant Lynch is that defendant Wilbert Starry had a pre-existing binding contract with Lewis Starry, whereby Lewis Starry had bound himself to accept the note of Wilbert alone and that therefore the signature of Glenn Lynch was without any consideration. This theory of defense rests upon certain testimony of Wilbert, concerning a conversation with Lewis Starry to be hereinafter set forth.
The case was submitted to the jury on the theory, that if this conversation in substance was proved to their satisfaction, the defendant was entitled to a verdict.
While it is true, as contended by appellee, that we must accept the evidence in the most favorable light to the defendant, and must accept the evidence of Wilbert rather than that of Lewis where there is conflict between them, yet we find it impossible to interpret some of the evidence of Wilbert except in the light of the testimony of Lewis. This is so because some of the testimony of Lewis is undenied and the story of Wilbert standing alone is incomplete. Lewis testified that the negotiations began after the funeral and in the home of the mother and were participated in by the two sons, the mother, and the granddaughter; that he named the price of $ 25,000 for his interest, which was objected to by Wilbert as excessive; that Wilbert said that Glenn Lynch would be interested in the purchase, if he made it, and suggested that they go to the bank and confer with Lynch; that both brothers went to the bank and conferred with Lynch; that as a result of the conference his price was acceded to and he was to have $ 8000 on the first of March following and time was to be given on the balance. It does not appear what the length of such time was to be except as it later appeared in the notes executed. Thereupon Wilbert and Lewis went to Anamosa, the county seat, to the office of Gorman, an attorney, and employed Gorman to prepare the necessary papers. Such papers were prepared by Gorman and were taken by the brothers. They comprised the purported notes to Lewis and to Mrs. Hoff for their respective interests; a paper to be signed by Lewis and by Mrs. Hoff and by the widow purporting to be a general assignment of all the interests of the signers in the estate of the decedent; a petition for the appointment of Wilbert as administrator; a waiver to be signed by the widow waiving her right to appointment as administratrix. Each and all these papers were finally executed pursuant to the negotiations. Each and all of the papers thus executed were delivered respectively to the parties for whom they were intended. Lewis and Mrs. Hoff received their purchase-money notes, all of which were signed by Wilbert Starry and by Glenn Lynch in the same manner and form as the note in suit.
At the close of the evidence the plaintiff moved for a directed verdict on the broad ground that the defendant had failed to prove a want of consideration for his signature; and on the further ground that it was made to appear affirmatively that there was consideration for the signature.
The record discloses two phases of the evidence,--one negative and the other affirmative. Each is fundamental herein. Though these are parts of the same thing, the evidence relating to each is somewhat distinct and for convenience of discussion, we will deal with them separately.
I. Did the defendant affirmatively prove want of consideration? The theory of this affirmative defense, has already been referred to. It was that Lewis Starry had bound himself by a pre-existing contract to accept the note of Wilbert Starry alone for the purchase price. The testimony relied on in support of the theory is that of the defendant Wilbert Starry, as a witness. He testified that in the course of negotiations between him and Lewis, the following conversation occurred:
He testified also that this conversation occurred while they were riding together from Olin to Anamosa on their way to consult attorney Gorman about the affairs of the estate. The foregoing comprises the only affirmative evidence introduced in support of this theory of the defense. Lynch testified negatively and broadly that he had no interest in the transaction and received no benefit therefrom.
Authorities relied on in support of the defense are Hinman v. Treinen, 196 Iowa 701, 195 N.W. 345; Le Fleur v. Caldwell, 196 Iowa 727, 195 N.W. 234; Insell v. McDaniels, 201 Iowa 533, 207 N.W. 533.
The question then at this point is, does the case at bar come within the purview of the cited cases? Each of those cases was one of the suretyship of the wife for the debt of her husband. In each case the liability of the husband did not arise contemporaneously with the signing of the wife. In each case the note in question was given in performance of a prior executory written contract. In each case such prior executory written contract defined the rights and liabilities of the parties thereto. In each case the wife was not a party to such prior existing contract and the obligation imposed therein upon her husband provided for performance by him alone. In those cases we held that the signature of the husband to the note in question operated as a full performance of the executory contract previously existing.
It is the general rule of law that where a contract has the support of a consideration, such consideration is applicable to every original party thereto. For instance a surety does not usually obtain consideration or benefit to himself, but ...
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