Turner v. Potter

• Decision Date: 11 June 1881
• Citation: 56 Iowa 251,9 N.W. 208
• Parties: TURNER v. POTTER, EXECUTOR, ETC.
• Court: Iowa Supreme Court

56 Iowa 251

9 N.W. 208

TURNER

v.POTTER, EXECUTOR, ETC.

Supreme Court of Iowa.

Filed June 11, 1881.

Appeal from Des Moines circuit court.

This is an action upon six promissory notes. The following is a copy of one, the others being of about the same tenor and effect:

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                ¦“$500.00.¦BURLINGTON, October 20, 1873.¦
                +---------------------------------------+
                

Three months after date we promise to pay Turner & Co. five hundred dollars, with interest at ten per cent.

BURLINGTON & SOUTHWESTERN RY. CO.

V. R. Moore, A. Tr.”

It is averred in the petition and amendments thereto that the notes in suit are the individual notes of E. B. Ward, deceased, of whose estate the defendant, Potter, is executor. The grounds of such claim, briefly stated, are as follows: Prior to 1873 the Burlington & Southwestern Railroad Company had constructed its road from Burlington to Unionville, Missouri. Said company was insolvent. In September, 1873, the decedent, E. C. Ward, claiming to be lessee of said railway, took possession thereof and thereafter operated and controlled it. Said company was indebted to plaintiff in a large sum of money, upon note and account. After Ward took possession of the road, plaintiff commenced an action against the railway company in Missouri, and seized a certain locomotive upon a writ of attachment as the property of the company; that said Ward, by his agents, claimed that he had leased said railway, but proposed, if plaintiff would desist from attempting to subject said property so seized, and would extend the time of payment of a portion of said debt, that he would then pay a portion thereof, and would assume and pay the residue; that plaintiff acceded to said proposition, and that thereupon the said Ward, by his agent, Moore, executed the notes in suit, which were delivered as and for the notes of Ward, in the name and style used by him in transacting said business; that said Ward, after taking possession of the road, claimed to be lessee thereof, and held out to persons dealing with him, and to the public, that he was such lessee, and thereby caused plaintiff to believe that the notes in suit were signed in his name, used in his said business, and to bind him as lessee. Issue was taken upon the petition and amendments thereto. There was a trial by jury. After both parties had introduced their evidence, the court, upon the motion of the defendant, instructed the jury to return a verdict for the defendant. The plaintiff excepted, and moved for a new trial. The motion was overruled, and judgment was entered on the verdict. Plaintiff appeals.

P. Henry Smyth & Son, for appellants.

C. H. Trimble and E. S. Huston, for appellee.

ROTHROCK, J.

1. The contract under which the decedent, Ward, was in possession of the railroad is fully set forth in the case of the United States Rolling Stock Co. v. Potter, 48 Iowa, 56 where it was held that said contract was not a lease, and that Ward was not individually liable upon an undertaking entered...