Tobin v. Budd

Citation251 N.W. 720,217 Iowa 904
Decision Date12 December 1933
Docket NumberNo. 42134.,42134.
PartiesTOBIN, TOBIN & TOBIN v. BUDD et al.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Benton County; B. O. Tankersley, Judge.

The action was commenced by plaintiffs to secure judgment against the defendants on a written promissory note. The petition prayed for the issuance of a writ of attachment, and a writ of attachment was issued and levy made thereunder on certain property owned by defendant Etta M. Budd. No writ was issued or levy made on property of the defendant Allen J. Budd. Defendants filed separate answers, admitting the execution of the note, setting up the defense of fraud in the securing of the note. Defendants also filed counterclaims for wrongful attachment. Court directed a verdict against the defendants, in favor of the plaintiffs, for the amount of the note, and submitted the case to the jury on the question of wrongful attachment as to defendant Etta M. Budd. Jury returned a verdict in favor of the plaintiff and against the defendant. Defendants appeal. Opinion states the facts.

Affirmed.

Nichols, Nichols & Milroy, of Vinton, and Lee, Steinberg & Walsh, of Ames, for appellants.

Tobin, Tobin & Tobin and Kirkland & St. Clair, all of Vinton, for appellees.

MITCHELL, Justice.

In the month of December, 1926, the appellant Allen J. Budd, was owing one Sweeley a note for the principal sum of $3,390, on which there was some accrued interest. For a period of almost two years this note had been in the hands of Tobin, Tobin & Tobin, the appellees, a firm of lawyers practicing law at Vinton, Iowa, for collection. During that period of time the appellee firm had been demanding payment of the note from Mr. Budd, but the only amount which it seems they were able to collect was the interest for one year, which was paid to the appellee firm as attorneys for Sweeley. Budd was financially involved, and Sweeley was anxious to make a settlement with him, even at a discount. Negotiations were had between Budd and John Tobin, in which the amount of the discount was discussed, and settlement was finally arranged between Budd and John Tobin, one of the appellee firm, acting for Sweeley, in which it was agreed that Sweeley would discount his note $1,000. The question came up as to where Budd could secure sufficient money to make this settlement, and finally, on January 8, 1927, M. J. Tobin agreed to advance the money for Budd. The amount then due on the note was computed in order to ascertain how much would still remain to be paid after giving credit for the $1,000 that Sweeley was willing to allow in the settlement, and it was found that the sum would be $2,882.55. M. J. Tobin on that date made the loan to Budd. The money was paid to Sweeley; the note was canceled and delivered to Budd. In consideration of said loan, Budd assigned to M. J. Tobin, as collateral security, a certain real estate mortgage on Florida land, and three certain promissory notes, each for $5,000, secured by said mortgage. The transaction of said January 8, 1927, between the said M. J. Tobin and Allen J. Budd, was set out in writing and was introduced in the trial of the case as Exhibit No. 43 and is as follows:

“Agreement.

Vinton, Iowa, January 8, 1927.

Whereas A. J. Budd has this day assigned to the undersigned M. J. Tobin three certain promissory notes for $5,000.00 each, dated November 28, 1925, and signed by Charles A. Lyman and whereas the said A. J. Budd has this day assigned to the undersigned M. J. Tobin the certain mortgage of Charles A. Lyman and wife dated November 28, 1925, securing said three notes by first mortgage lien against the Southwest Quarter and the West Half of the West Half of the Southeast Quarter, all being situate in Section 4, Township 28, South, Range 36, Brevard County, Florida, and whereas the consideration for said assignment is the sum of $2,882.55 for which the said Tobin hereby agrees to finance and pay the certain S. S. Sweeley note for $3,390.00 dated October 19, 1920, which with interest up to this date it is figured amounts to $3,882.55 and whereas the said $2,882.55 is not only to pay Sweeley and cancel said note, but is to pay all costs and expenses of his attorneys, Tobin, Tobin and Tobin in connection therewith and whereas the said M. J. Tobin does this day agree to forward to David Peel for the said A. J. Budd the sum of $100.00 to apply on his account as attorney in foreclosing the certain mortgage, making a total which the said Tobin has invested in said mortgage note and interest of the sum of $2,982.55.

Now, therefore, it is agreed between the said Tobin and the said Budd that in the excess of the said sum of $2,982.55 with interest from this date at the rate of 7 per cent, together with whatever necessary costs and expenses are needed in the foreclosure of said mortgage, the said Budd is in fact the owner of all of said notes and mortgage securing the same. That is to say Tobin hereby states that his equity and right in said mortgage is the sum of $2,982.55 with interest and necessary costs in foreclosure and that in excess thereof the entire indebtedness represented by the Lyman notes and mortgage belongs to the said A. J. Budd and that upon the payment thereof to the said Tobin, the said Tobin consents and agrees to make a reassignment of said notes and mortgage to the said Budd or a transfer of the property to him, subject to his said claim, whenever the deal has been properly adjusted.

[Signed] A. J. Budd

M. J. Tobin.”

Proceeding in compliance with the directions given to them by Allen J. Budd, the appellee firm engaged a David Peel of Melbourne, Fla., a lawyer, who must be of high standing, for neither side in this case says anything derogatory about Mr. Peel, to foreclose the mortgage in Florida. Mr. Tobin had written Mr. Peel, asking him what his charges would be for foreclosing the mortgage, and Peel had written back that in Florida the usual fee for a foreclosure of a mortgage is 10 per cent. of the amount of the mortgage, suggesting that a reasonable division of the fee would be two-thirds to his office and one-third to the Tobin office. He stated in his letter that, if this appeared too large, Tobin could write him again, naming what he believed would be a fee commensurate with the Iowa practice, and that in that case the fee would also be divided between the two offices. According to Tobin's testimony, he talked with Allen Budd about the question of the fee and about the division of the fee, and they finally agreed that $500 would be a fair attorneys' fee and in addition the costs and expenses. Budd denies that Tobin ever told him the exact amount of the fee, and denies that he ever hold him there would be any division of the fee between the Tobin office and Peel's office. However, it appears that Mr. Peel proceeded to foreclose the mortgage and that the total amount of the foreclosure costs, including the $500 attorneys' fee, was $657.92, and that the Tobin firm paid this amount less the one-third of the attorneys' fee which they were to receive from Peel, in accordance with Peel's agreement, which was in the amount of $166.67. Tobin also claimed that he forwarded to Peel as a retainer the sum of $100. This was in compliance with the amount set out in Exhibit 43. It appears also from the record that in order to pay certain taxes, which it was necessary to pay, upon the land in Florida, Tobin advanced the sum of $810.77. There can be little question about this advancement, for there was offered in evidence a written instruction directed to M. J. Tobin, signed by Allen J. Budd, authorizing Tobin to pay this amount of money. This advancement on the taxes was made in November, 1927. There then followed a period of time in which Tobin was attempting to collect the money from Allen J. Budd, but he was unsuccessful in doing this.

Allen J. Budd had a sister who lived at Ames, Iowa, who knew about the Florida land and who had visited in Florida a great many times and had been interested in Florida real estate, and who also was familiar with the financial condition of her brother and the fact that he had pledged the Florida notes as security for the amount of money which had been advanced by Tobin. On the 19th of April, 1930, M. J. Tobin and Allen J. Budd made a trip to Ames, Iowa, and went to the home of Etta M. Budd. They stayed there for a period of several hours. And at that time a note was prepared in the amount of $5,356.63, payable to M. J. Tobin and signed by Allen J. Budd and Etta M. Budd, said note to become due in one year from date. The note was assigned by M. J. Tobin to Tobin, Tobin & Tobin. No claim was or is made by the appellees that they were innocent purchasers; on the contrary, the money represented in the note sued upon was the appellees' money, and they at all times were the real owners of the note in question. When the note became due, both Allen J. Budd and Etta M. Budd were notified, and there were some letters back and forth between the parties, the appellees insisting that they would have to have this obligation paid, and the appellants at all times saying that they were doing their best to pay the said obligation. After waiting a period of more than eighteeen months to collect the obligation and being unsuccessful in doing so, the appellees on December 11, 1931, brought a suit upon this note, aided by attachment, and filed an attachment bond in the usual form in the penal sum of $18,000. They procured a writ of attachment from the district court of Benton county and sent it to the sheriff of Story county, to be served against the property of Etta M. Budd. It was the claim of Etta M. Budd that the sheriff of Story county, in compliance with the direction of the appellees, levied upon real estate and personal property of the value of over $20,000, including the household furniture of the appellant. To the petition of the appellees, the appellant Allen J. Budd filed a separate answer, admitting...

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2 cases
  • State v. Hatter
    • United States
    • Iowa Court of Appeals
    • November 26, 1985
    ...Third, the trial court sits as judge of the facts on the question of existence of a ground for challenge. Tobin, Tobin & Tobin v. Budd, 217 Iowa 904, 919, 251 N.W. 720, 727 (1934). As noted in the first principle, the trial court is vested with the discretion of whether or not to excuse a j......
  • Tobin v. Budd
    • United States
    • Iowa Supreme Court
    • December 12, 1933

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