Willett v. Young
| Citation | 47 N.W. 990,82 Iowa 292 |
| Parties | A. B. WILLETT, Appellant, v. S. YOUNG et al., Appellees |
| Decision Date | 01 January 1891 |
| Court | United States State Supreme Court of Iowa |
MONDAY FEBRUARY 9, 1891.
Appeal from Story District Court.--HON. S. M. WEAVER, Judge.
ACTION upon an order executed by the defendants, who were trustees of Milford township, in Story county, and directed to the clerk of said township for payment out of the general township fund. A demurrer to the petition was sustained, and a judgment rendered for the defendants for costs. The plaintiff appeals.
Affirmed.
J. W Willett, for appellant.
Funson & Gifford and F. D. Thompson, for appellees.
I.
The order upon which the suit was brought was in these words:
"OFFICE OF THE BOARD OF TRUSTEES OF THE
TOWNSHIP OF MILFORD, June 30, 1877.
The petition is in two counts. In the first count it is averred that the defendants bound themselves to pay the order if the clerk of the township should fail to pay the same, and that when the instrument became due it was presented to said clerk for payment, and payment was refused. It is not claimed that the order is a negotiable instrument. If the plaintiff intended to make such a claim he would have averred not only a demand and refusal to pay, but a notice of the demand and refusal to the defendants. The cause is argued upon the theory that, upon the fact of the instrument, the defendants undertook to and did bind themselves personally to make payment if the clerk did not pay. The instrument will bear no such construction. By its terms it plainly imports that the defendants made the order as trustees of the township, and attempted to bind the township thereby. Counsel for the appellant cite the cases of Wing v. Glick, 56 Iowa 473, 9 N.W. 384; Revolving-Scraper Co. v. Tuttle, 61 Iowa 423, 16 N.W. 353, and Heffner v. Brownell, 70 Iowa 591, 31 N.W. 947, as authority for holding that the order in suit is the personal obligation of the defendants. We think the cited cases were founded upon instruments of an entirely different character. They were instruments which appeared to be the personal undertaking of the parties signing them, and the only ground upon which it was claimed they were not personally liable was that after the individual name of each signer there was some such word as "trustee," "president" or the like. In the case at bar it is manifest from the whole instrument that there was no intention to assume a personal liability.
II. It is averred in the second count of the petition that the written order was given in part payment for a Wauchope road grader which was delivered by the plaintiff's assignor to the township and to the defendants; that the defendants had no power or...
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