Zimbleman v. Finnegan

• Decision Date: 19 November 1908
• Citation: 118 N.W. 312,141 Iowa 358
• Court: Iowa Supreme Court
• Parties: ZIMBLEMAN & OTIS v. FINNEGAN.

141 Iowa 358

118 N.W. 312

ZIMBLEMAN & OTIS

v.FINNEGAN.

Supreme Court of Iowa.

Nov. 19, 1908.

Appeal from District Court, Boone County; C. G. Lee, Judge.

Action at law upon a promissory note. Defenses, want of consideration, and some other matters, which will be noticed in the body of the opinion. Trial to a jury, verdict and judgment for plaintiffs, and defendant appeals. Affirmed.Dyer & Hull, for appellant.

G. W. Crooks and Harpel, Creighton & Cederquist, for appellees.

DEEMER, J.

The action is upon a promissory note for $749.12, dated November 27, 1903, due on or before one year after date, drawing 8 per cent. interest, payable to plaintiff and signed by defendant. There was a credit thereon, under date April 17, 1905, of $280, received for the sale of a building and fence. Defendant averred that it was never delivered with intent to make it a binding obligation, that others were to sign before it was to become effective, and that there was no consideration for the note. These were the issues upon which the case was submitted, with the result above indicated. At the conclusion of plaintiff's evidence defendant moved for a directed verdict. This motion was overruled, and of this complaint is made. It is also contended that the verdict is without support in the evidence, and some of the instructions are challenged.

The argument has taken a rather wide range, and much is said in the briefs regarding the statute of frauds which we do not think is in any manner involved. The testimony tended to show the following with reference to the execution of the notes: Plaintiff is a copartnership, engaged in the retail lumber business at the city of Boone, and defendant was a stockholder and the secretary of what was known as the “South Side Driving Park Association” in said city. As such officer he ordered a bill of lumber from plaintiff for the driving park association, which bill was delivered to the association. The amount of this bill was $749.12. After the bill was furnished, one of the members of plaintiff firm called on defendant to pay the bill. Defendant said there was no funds with which to pay it, and plaintiff then insisted that defendant make his note for the amount of the lumber bill. The note in suit was accordingly drawn up, signed by defendant, and delivered to Zimbleman, a member of the plaintiff firm. It was then suggested, by one or the other of the parties, that other stockholders of the driving park association should sign the note, and the testimony on the part of the plaintiff is that defendant was to procure the signatures. Zimbleman secured the note from defendant in order to straighten out the account, as he (Zimbleman) was about to leave the state to be gone several months. The note, after delivery to Zimbleman, was left with Otis, the other member of the firm, and defendant was told that he might procure it at any time from Otis to get such signatures as he (defendant) desired to have with him on the note. Finnegan got the note from Otis to obtain other signatures, and it remained with him for about four months. Not having been returned, Otis went to defendant about it, asked if he had obtained the other signatures, and, being informed that he had not, claims that defendant then surrendered the note as his independent obligation. After the note was executed defendant on several occasions asked for time on the note, hoping that the driving park association would be able to pay the bill, but it never became able to do so, and just before the expiration of the time for foreclosing the mechanic's lien, plaintiff demanded payment of the note, and it was then agreed that the mechanic's lien should be foreclosed, and the amount realized thereon credited upon defendant's note. This was done, and the credit appearing upon the back of the note represents the net amount realized on the foreclosure.

Defendant introduced testimony to the effect that the note was not to be binding as his sole and individual obligation, but that the agreement was that the note should be signed by all the stockholders of the driving park association, some 10 or 12 in number, before it would be binding, and that he (defendant) was simply “to start the note out”; that the note was never signed as agreed, and never became a binding obligation. He further testified that he received no part of the consideration for the note, although he admits that he signed the same because of Zimbleman's statement to him that the driving park association account had to be fixed up. In substance, this is the material evidence in the case, and in view thereof the trial court gave the following instructions to the jury: “If you believe from the evidence that the defendant delivered the note in suit to plaintiff, under an agreement that he was signing the same as one of the stockholders of the South Side Driving Park Association, and that the same was to become binding only upon condition that other stockholders of said association should sign the same, then plaintiff cannot recover in this case. Or if you believe from the evidence that there was no consideration for said note, then the plaintiff cannot recover. The only claim of consideration in the pleadings is that said note was given for the purpose of securing an extension of time for the South Side Driving Park Association, and you are told that, if this was the consideration, it was sufficient. The note, being a written instrument, and in the possession of...