Weis v. Morris

• Decision Date: 20 May 1897
• Citation: 71 N.W. 208,102 Iowa 327
• Parties: WEIS v. MORRIS ET AL.
• Court: Iowa Supreme Court

102 Iowa 327

71 N.W. 208

WEIS

v.MORRIS ET AL.

Supreme Court of Iowa.

May 20, 1897.

Appeal from district court, Pottawattamie county; Walter I. Smith, Judge.

Action at law upon a promissory note signed by Morris Bros., James Casady, John T. Hazen, R. W. Beebe, W. H. Knepher, F. H. Guanella, and M. Goodwin. The defendants Casady, Hazen, Knepher, and Guanella alone answer. Their answer presents the following defenses: First, that after they had signed the note other signatures were procured thereto, without their knowledge or consent; second, that they signed said note upon the express condition that the same should be signed by John C. Lee, W. B. Reed, and William Fitzgerald, which condition was known to plaintiff, and was not complied with; third, that defendants signed the note as sureties for Morris Bros., which fact was known to plaintiff when he took the note, and he, without the consent of the defendants, made a valid and binding contract with the principal, by which the time of payment of the note was extended; fourth, that said note was antedated, with plaintiff's knowledge, after it was signed by the defendants; fifth, that said note was altered, after its execution and delivery, by the plaintiff, or with his authority. The plaintiff, in substance, denies the allegations of the answers. The cause was tried to the court and a jury, and the court submitted to the jury special interrogatories, which the jury answered, finding that the defendants signed the note upon the condition that the same should be signed by said Lee, Reed, and Fitzgerald; that plaintiff knew, when the note was delivered to him, that the defendants had signed the note on the condition that said Lee, Reed, and Fitzgerald should sign the same; that plaintiff agreed with Morris Bros. to extend the time of payment of the note, and that such agreement was made without defendant's consent, and as a part of the consideration of a real-estate mortgage which was given; that the note, when executed and delivered, provided that past-due interest should draw 10 per cent. interest. There was a general verdict in favor of the defendants, and a judgment was entered thereon, from which plaintiff appeals.Flickinger Bros., for appellant.

Benjamin & Preston and Emmet Tinley, for appellees.

KINNE, C. J.

1. Morris was permitted to testify to conversations had between him and his co-defendants, wherein he told them who would sign the note as sureties with them in case they signed it. The evidence was objected to as incompetent and immaterial and hearsay, and the objection overruled, and an exception taken. The ruling was correct. The evidence tended directly to sustain one of the defenses pleaded, and, as there was evidence tending to show that plaintiff had knowledge of these conversations when he accepted the note, it was both competent and material.

2. On cross-examination of Morris, the plaintiff sought to inquire into the good faith of Morris in delivering the note. The evidence was properly excluded. What Morris' motives may have been was wholly immaterial to the issue.

3. To show a consideration for the claimed extension of time of payment by plaintiff to the makers of the note, the defendants introduced in evidence the record of a mortgage securing the payment of the note in suit. It is now said that the court erred in admitting this record in evidence, because no foundation had been laid therefor, and because the mortgage did not establish any agreement for an extension of the note. The objection was: “To which mortgage plaintiff objected as incompetent, immaterial, for the reason that it does not purport to have been made by the maker of this note, but by a stranger to the record, and that it shows on its face to have no materiality or relevancy to the issue.” It will be observed that the objection is not that the offer of the record was not the best evidence. The objection on the ground of incompetency was not general, but limited to the reasons which were expressly set forth in the objection. We are not to be understood as holding that a general objection to the evidence as incompetent would raise the question that the record was not the best evidence. The question argued, that the record was secondary evidence, and no foundation had been laid therefor, is raised for the first time in this court, and cannot be considered. Evidence of the mortgage was material and relevant, as, in connection with evidence showing that it was taken at plaintiff's instance to secure the note, or so accepted by him, it might furnish a consideration for the extension of the time of payment, if such extension was in fact given.

4. Complaint is made because the court, after all the evidence was in, permitted the defendants to amend their answer setting up the fact that the note had been altered by inserting the figure 8 over the word “ten” in the clause providing for interest upon interest due and unpaid. No claim is made that the plaintiff was surprised by said amendment. No continuance was asked on account thereof....