Vechten v. Smith

• Citation: 13 N.W. 94,59 Iowa 173
• Parties: VAN VECHTEN v. SMITH
• Decision Date: 13 July 1882
• Court: United States State Supreme Court of Iowa

13 N.W. 94

59 Iowa 173

VAN VECHTEN v. SMITH

Supreme Court of Iowa, Des Moines

July 13, 1882

Appeal from Jones Circuit Court.

ACTION upon a promissory note executed by the defendant o the Iowa Iron and Steel Fence Co. of Ceder Rapids, and sold and indorsed by the company to the plaintiff. The copy set out by the plaintiff in his amended petition is in these words:

"MONTICELLO TOWNSHIP, JONES COUNTY, IOWA.

"JULY 25, 1877.

"One year after date I promise to pay to the treasurer of the Iowa Iron and Steel Fence Co. of Cedar Rapids, or bank, $ 200 at the City National Bank of Cedar Rapids, Iowa value received with interest at ten per cent from date. Reasonable attorney's fee if suit be instituted on this note.

"signed "HENRY D. SMITH."

The defendant for answer avers that the copy set out is not a true copy; that while it is true as shown, that the note at the time it was executed contained no words of negotiability it does now contain such words; that instead of the word "bank" as contained in the copy after the word "or," there is in the note the word bearer after the word "or;" that the word bearer was interlined after the note was signed and delivered; and that by the interlineation of the word the note was materially altered. The defendant further avers that the note was fraudulently obtained, and is without consideration. There was a trial to a jury and verdict and judgment were rendered for the plaintiff. The defendant appeals.

AFFIRMED.

Sheean & McCarn, for appellant.

McCrary & Barber and Remley & Ercanbrack, for appellee.

OPINION

ADAMS, J.

I.

The court instructed the jury in substance that if they should find that the word bearer was interlined after the delivery of he note, that would be a material alteration and vitiate the note; but if they should find that the word bearer was interlined at, or before delivery, the note would be negotiable, and the plaintiff would be entitled to recover, even though they found that the note was procured by fraud and without consideration. The defendant contends that the court erred in the last part of the instruction, because both the plaintiff and defendant aver in substance that the note is not negotiable, and the court should not have instructed the jury upon the theory that they were at liberty to find that it is.

It will be seen that the plaintiff's theory that the note is not negotiable rests merely upon the fact that he reads the disputed word as bank and not as bearer. The defendant's theory that the note is not negotiable rests upon the theory that the disputed word was not in the note at the time it was delivered.

The disputed word, we judge from the evidence, is very nearly illegible. If the word is bank it is immaterial when it was written, because the legal effect of the instrument is the same with it as without it. Granite Railway Co. v. Bacon, 32 Mass. 239, 15 Pick. 239. But if the word is bank as plaintiff assumed and averred, he took the note subject to all defenses.

The defendant insists that whether the word is bank or bearer the plaintiff took the note subject to all defenses, and for the reason that the plaintiff avers that the word is bank. We do not feel called upon to go into any inquiry as to the correctness of this position. We do not think that the defendant was prejudiced by the instruction, even if it was erroneous. The defendant does not complain that the issue tendered by him by his averment that the word in dispute is bearer and was interlined after delivery, was not properly submitted. He had the full benefit of that defense. His complaint is that his defense of fraud and want of consideration was not properly submitted. His theory is that the jury may have found that the word in dispute is bearer and was interlined at, or before delivery, and having so found felt precluded from going into the consideration of the defense of fraud and want of consideration. But the defendant was not prejudiced unless there was some evidence of fraud or of a want of consideration, and we have to say that we fail to discover any.

The defendant avers, and the undisputed evidence shows, that the note was given for two shares of stock in the Iowa Iron and Steel Fence Co. of Ceder Rapids. The averment of fraud consists simply in this: that the agent of the company who negotiated for the company the transaction, by which the defendant took two shares of stock in the company, and gave his note therefor, represented to the defendant that the stock was valuable, whereas, it was in fact, worthless.

But the doctrine is elementary that under ordinary circumstances a statement by a seller of property that it is valuable is to be treated as a mere opinion, and not as a false representation, however insincere the seller may have been in his statement. In Brown v. Castles, 65 Mass. 348, 11 Cush. 350, Metcalf, J., after stating the rule that where a seller makes a known misrepresentation of a material fact not within the observation of the buyer, an action will lie, says: "This rule is not applied to statements made by sellers concerning the value of the thing sold, it always being understood the world over that such statements are to be...