Westervelt v. Huiskamp

• Decision Date: 05 February 1897
• Citation: 101 Iowa 196,70 N.W. 125
• Parties: WESTERVELT v. HUISKAMP.
• Court: Iowa Supreme Court

101 Iowa 196

70 N.W. 125

WESTERVELT

v.HUISKAMP.

Supreme Court of Iowa.

Feb. 5, 1897.

Appeal from superior court of Keokuk; Joseph C. Burk, Judge.

Action at law to recover an amount alleged to be due on a promissory note. There was a trial by jury, and a verdict for the defendant, on which a judgment for costs was rendered. The plaintiff appeals. Reversed.H. Scott Howell & Son, for appellant.

J. F. Smith, for appellee.

ROBINSON, J.

In March, 1890, the defendant gave to the United States Investment Company his promissory note for the sum of $250, payable on the 1st day of January, 1892, with interest at the rate of 6 per cent. per annum. The note was transferred to the Citizens' National Bank of Grand Island, Neb. In December, 1893, that bank failed, and the plaintiff was appointed its receiver. He seeks to recover the amount of the note. The defendant admits making the note, but alleges that it was a part of an optional contract for the purchase of land, a condition of which was that, in case of default in the payment of any of the notes given for the purchase price, the entire contract should be terminated, and the payments which had been made should be forfeited, and that, by reason of the default in the payment of the note in suit, the contract and the liability of the defendant on the note are at an end. The defendant further avers that the bank, of which the plaintiff is receiver, took the note with full knowledge of the conditions on which it was given.

1. The appellee has filed an additional abstract to which there is no response, in which he denies that the appellant's abstract contains all the record in the case. Some exceptions to rulings which were omitted from the abstract of the appellant are given, and statements are made as follows: “This abstract and abstract of the appellant do not contain all the evidence. This additional abstract will enable the court to partially understand the case, and it may be submitted, so far as the single point on instruction 18 1/2 is made, without a transcript.” The abstract of appellant purports to contain all the evidence introduced on the trial, and, if it does not, the appellee should have set out all the omitted parts, or show some reason for not doing so. The failure to set out evidence in the additional abstract, taken with the statements which we have quoted, shows an intention to waive all question as to the sufficiency of the abstract to present the questions which are raised by the paragraph of the charge referred to, and no objection to the abstract is made in argument. Therefore we shall treat it as sufficient to enable us to decide the questions we find it necessary to consider.

2. Paragraph 18 1/2 of the charge to the jury is as follows: “The jury are instructed that, under and by the terms of the written contract made between the United States Investment Company and the defendant, in connection with the note sued on in this case, said United States Investment Company, on default of payment by the defendant of any of the notes given by virtue of said contract, became entitled to the right of possession of the land sold, and the contract became utterly null and void, so far as said company was concerned, and said property reinvested in said company, and they are entitled to hold all money received under said contract from defendant as a forfeit, but said company could not hold defendant liable upon any note or notes in default; and if you find, by a fair preponderance of the evidence, under these instructions, that the Citizens' National Bank of Grand Island, Nebraska, at the time it is alleged it purchased the note in suit, had knowledge of the contract above, or bought said note after maturity, or for no valuable consideration, then plaintiff cannot recover in this action, and your verdict must be for the defendant. The notes sued on are part of the contract for the conditional sale of lots in an addition in Grand Island, Nebraska, and must be construed together. This contract gives the payee of the note, the investment company, the right to forfeit the payments now made, and keep the lots as their only remedy, if the notes given for the purchase are unpaid, or, if any of them are unpaid, are from that time without consideration. The company having drawn their contract with the absolute terms that it becomes void without any other condition, they cannot collect the notes unpaid when default occurs.” The contract referred to provides for the sale to the defendant of three lots in the city of Grand Island, Neb., for the sum of $700, the receipt of $100 of which is acknowledged. Three promissory notes were given for the remainder of the purchase price, of which the one in suit is the third. The contract required ...