Wyland v. Griffith
| Decision Date | 17 October 1895 |
| Citation | 64 N.W. 673,96 Iowa 24 |
| Parties | C. J. AND D. M. WYLAND, Appellants, v. B. B. GRIFFITH, JR., AND W. W. WHEELER |
| Court | Iowa Supreme Court |
Appeal from Shelby District Court.--HON. N.W. MACY, Judge.
Action at law upon two promissory notes. Defense, payment. Trial to a jury. Verdict and judgment for defendants, and plaintiffs appeal.
Reversed.
Smith & Cullison for appellants.
Byers & Lockwood for appellees.
August 22, 1887, defendants executed to one W. H. Bowlin, two promissory notes of five hundred dollars each; one falling due March 1, 1889, and the other September 1, 1889. Defendant Wheeler was a surety on the notes. These notes were afterwards transferred to plaintiff. On the fourth of October, 1889, Griffith being indebted to plaintiffs upon a note of two thousand dollars, and upon an overdraft of five hundred and four dollars and sixty-two cents, in addition to the notes in suit, executed to plaintiffs a chattel mortgage upon his stock of merchandise to secure the whole of his indebtedness to plaintiffs. Griffith continued in possession of the goods covered by the mortgage, depositing the money received from sales with plaintiffs until November 20, 1889 at which time plaintiffs took possession of the remaining goods, and foreclosed their mortgage thereon by sale on the sixth day of December, 1889. Defendant Griffith deposited with plaintiff, while he held possession of the goods, the sum of seven hundred and twenty-three dollars and eighty cents, and the goods sold at the foreclosure sale for two thousand five hundred and fifty dollars. Plaintiffs applied the money so received--First, in payment of the overdraft; second, upon the two thousand dollar note; and the remainder, amounting to four hundred and twelve dollars and thirty-six cents, they credited upon the five hundred dollar note first maturing. This suit was brought to recover the amount due on the two five hundred dollar notes. The defendants admit the execution and delivery of the note, but they say that, when the chattel mortgage before referred to was given, it was expressly agreed and understood between the parties thereto that it should stand as security--First, for the two five hundred dollars notes; and, second, for the other indebtedness of defendant Griffith,--and that the money realized from the sale of the mortgaged goods, if applied as agreed, would fully extinguish the two notes in suit; that by virtue of these facts the notes in suit have been fully paid. The plaintiffs first moved to strike out all allegations of the answer with reference to the agreement in regard to the application of the proceeds of the mortgaged property, and as to the order in which the debts were to be secured. This motion was overruled, and they thereupon demurred to the answer, which demurrer was also overruled. They thereupon filed a reply denying each and every allegation of the answer inconsistent with their petition. The case went to trial to a jury on the issues thus joined, and a verdict was returned for defendants. Plaintiffs appeal.
I. In various forms the appellants present the question as to the validity of the agreement said to have been made at the time of the execution of the mortgage with reference to the order in which the debts secured by the mortgage were to be paid. We do not think the question is properly presented, for the reason that plaintiffs waived the error, if any, in the ruling on the motion to strike, by filing a demurrer to the answer, and the error in the ruling on the demurrer by the filing of a reply. They did not stand on either of the pleadings, but evidently concluded to take their chances on the question of fact presented. Having done this, and suffered defeat, they are not in position to complain of the law, as given by the court. Benjamin v Vieth, 80 Iowa 149 (45 N.W. 731); Carson, etc., Lumber Co. v. Knapp, etc., Co., 80 Iowa 617 (45 N.W. 544); Seippel v. Blake, 80 Iowa 142 (41 N.W. 199), and 45 N.W. 728); Nieukirk v. Nieukirk, 84 Iowa 367 (51 N.W. 10); Dodge v. Davis, 85 Iowa 77 (52 N.W. 2); Stanbrough v. Daniels, 77 Iowa 561 (42 N.W. 443).
II. Defendants having each testified to an understanding and agreement at the time the mortgage was made that the two five hundred dollar notes should be first secured and first paid from the proceeds of the mortgaged goods, the plaintiffs called in rebuttal one Cyrus Beard, Esq., an attorney at law and the person who drew the mortgage and was present at the time it is claimed the aforesaid agreement was made, and propounded certain questions to him with...
To continue reading
Request your trial