State Bank of Dexter v. Fairholm
| Decision Date | 15 December 1925 |
| Docket Number | 36767 |
| Citation | 206 N.W. 143,201 Iowa 1094 |
| Parties | STATE BANK OF DEXTER, Appellee, v. E. J. FAIRHOLM, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED APRIL 9, 1926.
Appeal from Dallas District Court.--J. H. APPLEGATE, Judge.
ACTION upon a promissory note. The case states the facts. Verdict and judgment for plaintiff. Defendant appeals.
Affirmed.
Allen T. Percy and W. D. Milligan, for appellant.
White & Clarke, for appellee.
This is an action upon a negotiable promissory note purporting to have been signed by W. R. and E. J. Fairholm. The latter denied the execution of the note on her part. The reply admitted that both signatures were affixed to the note by W. R. Fairholm, who at the time of the trial was deceased, and alleged that he stated and represented to the cashier of the bank, who transacted the business for it, that he had authority to sign his wife's name to the note, and pleaded facts which, it is alleged, estop appellant from denying that her signature was unauthorized.
Evidence was offered and admitted by the court, over objections of appellant, to be presently noted, to sustain these issues. This testimony covered transactions of many years, extending as far back as 1894, between appellant, her husband, and various other parties. One witness testified to having had numerous transactions with them between 1894 and 1905; that it was the custom of the husband to sign his name and his wife's name to notes executed by them; that, upon one occasion, at a farm sale, when both were present, he asked appellant if she desired to sign the note, and that she replied, "No, it doesn't make any difference;" and that, thereupon, the husband signed both names to the note. The witness further testified that, upon various occasions, when notes came due, he notified one or both of them by letter or phone thereof; that appellant at no time objected to the payment of the notes, and that all of them were in fact paid; that he sold implements to the husband when appellant was present; and that she made no objections to such purchases, for which notes signed by him for both of them were taken. Another witness testified that he was acquainted with appellant and her husband from 1890 to 1916; that he frequently transacted business with them, as a banker; that he received and held their notes, to which both names were affixed by the husband; that notice of maturity thereof was sent to them; and that the notes were paid without protest. The witness did not remember ever having had a conversation with appellant in which the question of her husband's authority to sign notes for her was discussed.
Fred H. Fitting, president and principal stockholder of appellee bank, testified that the note in suit is a renewal of a prior note; that, between September, 1897, and the date thereof, the bank received, directly or from other parties, a total of 70 notes given by appellant and her husband, signed in the same manner as the present one; that William R. Fairholm stated to him that he had authority to sign his wife's name to notes; that, upon one occasion, when the original $ 1,700 note was executed, the husband stated to the cashier of the bank, when a question arose as to the signing of her name to the note, "I have authority to sign her name." The cashier was also permitted to testify fully as to this transaction, and also to the statements claimed to have been made by the husband as to his authority to sign his wife's name for her. Other witnesses gave testimony of similar import concerning similar transactions, but with less particularity and definiteness.
The objections interposed by counsel to the testimony to which we desire to refer especially are: (1) That the earlier transactions referred to by the witnesses were, because of their remoteness, incompetent to prove the assumed agency of the husband on April 12, 1921; (2) that the president and cashier of the bank were incompetent, under Section 4604 of the Code of 1897, to testify to any transaction or conversation between them, or either of them, and William R. Fairholm; and (3) that the alleged statements of William R. Fairholm that he had authority to sign appellant's name to the note in suit were inadmissible, under the general rule that agency cannot be proven by the declarations of the assumed agent.
I. It is true that the testimony of some of the witnesses related to transactions that were had many years before the note in suit was executed. There was evidence, however, tending to show that a custom then established between appellant and her husband was continued until about the death of William R. Fairholm. The evidence of this custom, if shown to have extended over a period of so many years, if known to appellant, would be quite conclusive on the subject of agency. The denial by appellant that such a custom existed, or that she had knowledge thereof, raised a conflict in the evidence, and presented a question of fact for the jury. Little direct testimony, particularly of transactions since 1904, that appellant knew that her husband was signing her name to notes was introduced; but it does appear that notice of the maturity of many notes was sent by mail to both parties subsequent to that date. William R. Fairholm was a soldier of the Civil War, and received a pension. He also at one time worked in the capacity of a rural mail carrier. These were his only sources of income. Appellant owned 120 acres of land, on which the family had resided for the past 20 years; but the farm has been leased to their son, with whom the business was always transacted by the father. The objection that the testimony was too remote was properly overruled.
II. It may be conceded that the witness Fitting was interested in the event of the suit, and that appellant sustained the relation of next of kin to her deceased husband. If the witness was incompetent to testify to these several transactions with William R. Fairholm, or to conversations relating to the execution of the note in suit, under Section 4604, it is because he was interested in the...
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