Starry v. Starry, 39379.
| Decision Date | 07 May 1929 |
| Docket Number | No. 39379.,39379. |
| Citation | 225 N.W. 268,208 Iowa 228 |
| Parties | STARRY v. STARRY & LYNCH ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Jones County; Atherton B. Clark, Judge.
Action on a promissory note. Defense of want of consideration by the defendant Glenn Lynch. Judgment on a verdict in favor of the plaintiff. The defendant Lynch appeals. Reversed and remanded.Park Chamberlain, of Anamosa, and Donnelly & Lynch, of Cedar Rapids, for appellants.
Geo. C. Gorman, of Cedar Rapids, for appellee.
The note in suit, in the amount of $17,000, was executed on or about the 1st day of August, 1920. The signatures thereon are “Starry & Lynch, W. Starry, Glenn Lynch.” It represents a portion of the purchase price of the interest of the plaintiff in the estate of his father, who died intestate July 22, 1920, leaving Mary J. Starry as his surviving widow, and his two sons, the plaintiff Lewis E. Starry and the defendant Wilbert Starry, and a granddaughter, Edith Hoff, as his sole heirs at law. The widow and the other two heirs executed unto the defendant Wilbert Starry deeds for their interests in the real estate left by the decedent, and also an assignment of their interests in the personal property. The purchase price of the plaintiff's interest in said estate, as agreed upon, was $25,000 and two notes were executed, signed as aforesaid, one in the amount of $8,000, due March 1, 1921, and the note in suit, made payable March 1, 1928, but which, by reason of an acceleration clause for nonpayment of interest, became due March 1, 1927. The signature “Starry & Lynch” was made by Starry, the father-in-law of Lynch. The $8,000 note has been paid. Judgment by default has been rendered against the defendant Wilbert Starry for the amount due upon the note in suit. The defendant Lynch, for himself individually and for the defendant “Starry & Lynch,” in so far as it is sought to assert any claim against him under such designation, admitted his signature to the note, but pleaded want of consideration, alleging in substance that said note never had any binding effect upon him; that he is not indebted to plaintiff thereon in any sum whatever; that prior to the signing of Exhibit 1 (the note in suit) by him an arrangement had been entered into between plaintiff and defendant Wilbert Starry, whereby the said Wilbert Starry agreed to purchase the interest of the plaintiff in the real and personal property of which Lewis Starry died seized, and plaintiff agreed to accept therefor the promissory notes of Wilbert Starry in settlement of the purchase price, and that thereupon the plaintiff transferred his interest in said property to Wilbert Starry, who accepted and received the same and instruments of conveyance on or about the ______ day of August, 1920, and thereby became obligated to deliver to plaintiff his promissory notes for the amount of the agreed purchase price; that thereupon the defendant Wilbert Starry executedsaid notes, including Exhibit No. 1 (), and requested the defendant to sign same, which he did, and that said notes were delivered to plaintiff, but that there was no arrangement between plaintiff and defendant Wilbert Starry for this defendant to sign said notes, and that plaintiff made no request and was entitled to make no request for any other signature thereto than that of Wilbert Starry; that plaintiff, under the arrangement, was obligated to receive the notes signed only by Wilbert Starry in full settlement of the purchase price for said property; that he never had or received any interest in the property, and that the signatures on said notes, except that of Wilbert Starry, were without consideration, and placed thereon without any agreement for them, and were in excess of the signature contemplated and agreed upon between plaintiff and defendant Wilbert Starry, and that the entire arrangement was between plaintiff and Wilbert Starry, and is the sole contract of the said Wilbert Starry; that there never was, and is not now, any such firm or association as “Starry & Lynch.”
The testimony of the defendants Wilbert Starry and Glenn Lynch are in accord with the allegations of the aforesaid affirmative defense, while the testimony in behalf of the plaintiff is in denial of the same. Judgment was rendered in favor of the plaintiff upon the following verdict returned by the jury: “We, the jury, find for the plaintiff, and against the defendants, Glenn Lynch and Starry & Lynch, and fix the amount of his recovery at $17,850.00, with 8% interest from March 1st, 1927.” From said judgment, the defendant, Lynch, appeals.
The appellant's assignments of error relate to the rulings of the court on the introduction of testimony, and the overruling of his exceptions to certain instructions given by the court.
The import of the testimony of Glenn Lynch was that he had nothing to do with the transaction by which, as he claims, Wilbert Starry became the owner of the interest which the plaintiff had in his father's estate, and tends to support his affirmative defense of want of consideration for his signature to the note.
[1][2][3] It is the contention of the appellant that his objections to certain questions propounded to him and Wilbert Starry should have been sustained, and that the court permitted impeachment of said two witnesses on immaterial and collateral matters. On cross-examination, Lynch was asked whether in a certain conversation relative to the payment of the note he made any denial of his liability upon the note, and his objection to the question propounded was overruled, and his answer was: The court, over appellant's objection, subsequently permitted testimony by the witnesses present to the effect that at that time and place there was no denial of liability or claim of nonliability made by the appellant. There is no justification for the contention of the appellant at this point. Conduct of a party inconsistent with his contention at the trial is admissible as tending to show that the latter is an afterthought. Where the defendant by his pleadings and testimony denies liability, it is proper to show that he made no denial on a particular occasion when a denial would have been natural. See Geddes v. McElroy, 171 Iowa, 633, 154 N. W. 320. In 16 Cyc. 954, it is aptly stated:
If, at the time of the conversation relative to the payment of the note, he considered that he was not liable for its payment, whether for want of consideration or otherwise, it would have been natural for him to have denied liability. It is quite apparent that the testimony is admissible.
[4][5] On cross-examination, Lynch was asked (1) if at a time and place fixed he had not stated to the plaintiff and his son, Irel, that he did not see how he and Wilbert Starry could pay the next March interest on this $17,000 loan; (2) if at a time and place fixed he had not stated to Gordon and Irel Starry that he never signed his name to anything that he did not expect to stand back of, or that in substance, in referring to the $17,000 note; (3) if at the same time he did not state to them that he did not see how he and Mr. Starry were going to be able to pay the $17,000 note. The appellant's objections to the aforesaid questions were overruled and Lynch answered each of said questions in the negative. Over the objections of the appellant, the...
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