Winburn v. Fid. Loan & Bldg. Ass'n
| Decision Date | 26 January 1900 |
| Citation | 110 Iowa 374,81 N.W. 682 |
| Court | Iowa Supreme Court |
| Parties | WINBURN v. FIDELITY LOAN & BUILDING ASS'N. |
OPINION TEXT STARTS HERE
Appeal from district court, Polk county; W. A. Spurrier, Judge.
Action at law on written orders on the defendant issued by J. M. Bowman and Coon Bros., and by them assigned to plaintiff. It is alleged that defendant accepted the orders, paid a part thereof, and agreed to pay the balance in a few days, but that it failed and neglected to do so. Defendants answered, denying that it was indebted to Bowman or Coon Bros., and pleaded some other matters that will be hereinafter referred to. At the conclusion of plaintiff's evidence, defendant moved for a verdict. This motion was overruled, and defendant announced that it had no evidence to introduce. Thereupon, on plaintiff's motion, a verdict was directed for him. After verdict, and after defendant's motion for a new trial had been overruled, plaintiff filed an amendment to his petition, that will be hereinafter referred to. From a judgment for plaintiff, defendant appeals. Reversed.
J. C. Macy and Dowell & Parrish, for appellant.
Berryhill & Henry, for appellee.
Addie Blackburn, C. B. Johnson, and a Mr. Calkins owned real estate in the city of Des Moines, on which they contemplated making improvements. In order to do this, they were compelled to borrow money of the defendant. Drafts payable to the borrowers were sent to one J. C. Macy, that were indorsed by the borrowers, and redelivered to Macy, in order that he might protect the mortgages given on the property to secure the loans from mechanics' liens. One Winburn, plaintiff herein, did some work on the improvements made by one of the borrowers, under Bowman, who was the principal contractor. He also did some work for Coon Bros., who were principal contractors for other improvements. Bowman and Coon Bros., who, as we have seen, were principal contractors, issued the orders in suit. They are in the usual form of such instruments, and were drawn on J. C. Macy. Macy did not accept the orders in writing, but it is claimed that he accepted them in parol for and on behalf of the defendant. Such an acceptance is not good unless it also be shown that the drawer has funds in the hands of the drawee or acceptor at the time the acceptance is made. Unless he have such funds, his verbal promise to pay the debt of another is within the statute of frauds, and therefore invalid. Walton v. Mandeville, 56 Iowa, 597, 9 N. W. 913. The first inquiry, then, is, did Bowman and Coon Bros. have funds in the hands of Macy, as agent of the defendant, at the time it is claimed the acceptance is made? We have seen that the funds were deposited with him by the borrowers. None of these persons gave evidence at the trial. Winburn testified that Macy said to him that there were several hundred dollars back on the loans at the time he claims Macy accepted the orders. One of the Coon Brothers testified to a conversation with an agent of the association in which that agent said, in effect, that the money would be sent as the buildings progressed, and that defendant usually made payments as the buildings progressed, and that the money would be sent to Macy. He further testified that he gave orders on Macy and that Macy said, before the orders were drawn, that he would honor them. He also testified that he had no contract with defendant to build the house, that his contracts were with the owners of the property, and that he understood the association was loaning the lot owners a certain amount of money, and that that was the money Macy was to pay out. Another of the Coon Brothers testified that the contract of their firm was with the owners; that they (the owners) obtained the money to build the houses by loans from the defendant. Bowman testified to a conversation with Macy in which Macy said that, if he (Bowman) would give orders, he (Macy) would pay them. This is all the evidence material to our inquiry, and it is well to ask when the...
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