Tomblin v. Callen

Citation28 N.W. 573,69 Iowa 229
PartiesTOMBLIN v. CALLEN AND OTHERS, DEFENDANTS, AND ANOTHER, INTERVENOR.
Decision Date18 June 1886
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from Mills circuit court.

Action in equity upon a promissory note and mortgage executed by the defendant Callen. He answered admitting the execution, but averring that he had been notified that Murray Nelson claimed to be the owner of the note and mortgage, and has possession of the same. Murray Nelson intervened, setting up his possession and ownership, and asking for a decree of foreclosure. The case came on for trial, as between the plaintiff and the intervenor, and decree was rendered for the plaintiff. The intervenor appeals.Smith McPherson and Hepburn & Thummel, for appellant.

John Y. Stone, for appellee.

ADAMS, C. J.

The note and mortgage in question were executed to the plaintiff, Mary C. Tomblin. Afterwards the plaintiff, at the request of her son, D. M. Tomblin, indorsed the same in blank, and delivered them to him, to enable him to pledge the same as collateral security in his business transactions. Tomblin delivered them as collateral security for a promissory note executed by him to the defendants E. B. Stephens & Co., and the latter sold and transferred the note and mortgage so pledged to the intervenor, Murray Nelson, who still holds the same. The plaintiff's contention, however, is that the transaction between her son and E. B. Stephens & Co. never had any validity; that the latter, accordingly, never acquired any interest in the note and mortgage; and that, having no interest, they could not transfer any to the intervenor.

The fact appears to be that E. B. Stephens & Co. were, at the time of the transaction in question, commission merchants, doing business in the city of Chicago, and were engaged in making contracts on commission for the purchase and sale of grain. They had made several such contracts for D. M. Tomblin, and most of them had been settled and closed out without the actual delivery of any grain, and by a payment of differences, so called; that is, by a payment by the losing party of enough to put the other party in as good condition as he would have been in if there had been a delivery. It seems also that E. B. Stephens & Co. became responsible for the carrying out of these contracts, and had a right to look to the buyer or seller, as the case might be, for indemnity. In October, 1878, the transactions between Tomblin and E. B. Stephens & Co. had been such that it was understood between them that Tomblin was indebted to them in the sum of $1,712.94. Tomblin gave them his note for that amount, and pledged the Callen note and mortgage in question as collateral.

The plaintiff claims that the transactions out of which Tomblin's pretended indebtedness arose were gambling transactions, in that they were not, as they purported to be upon their face, contracts for the sale and delivery of grain, but, virtually, bets in relation to the future market price of grain in Chicago. It is a matter of general information that many ostensible transactions in grain are of a purely gambling and criminal character. The wide-spread ruin produced show them to be among the greatest of evils. Where their true character is discovered, courts should promptly condemn them, and hold them void. But they need to proceed with caution. In the movement of the grain of the country, contracts for future...

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2 cases
  • Ascher v. Edward Moyse & Co.
    • United States
    • Mississippi Supreme Court
    • 29 Enero 1912
    ... ... 698; Harvey v. Merrill, ... 150 Mass. 1, 22 N.E. 49, 5 L. R. A. 200, 22 N.E. 49, 5 L. R ... A. 200, 15 Am. St. Rep. 159; Tomblin v. Callen, 69 ... Iowa 229, 28 N.W. 573; Zeller v. Leiter, 99 N.Y.S ... 624; Boyle v. Henning, 1212 F. 367; Chicago ... Board of Trade v ... ...
  • Tomblin v. Callen
    • United States
    • Iowa Supreme Court
    • 18 Junio 1886

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