43 Iowa 404 | Iowa | 1876
The defendant testified in substance, that whilst Helguson had the notes in his possession, defendant sold Helguson 900 bushels of wheat, at the price of seventy-five cents per bushel, and that Helguson agreed to apply $275 of the price of the wheat toward the payment of the notes, which he never did, and that defendant had turned out other notes in payment of the $290 and $80 notes.
The court instructed the jury as follows: “Before you find for defendant you must be satisfied that the note has beeD paid to the plaintiffs, or to some person by them duly authorized to receive such payment. If payment is made to an agent, it must be made in money, unless an agreement is shown or an authority is established in the agent to receive' payment otherwise. If Helguson was the agent of plaintiffs, and in possession of the note, defendant was authorized to pay Helguson on the note, and if Lee took wheat to Helguson and sold the same to him, and Helguson as agent aforesaid for Lee took the money, the proceeds of the wheat, for the plaintiffs, and was then in possession of the note, and was to indorse same on the note, then the money, the proceeds of the wheat, if applied on the note, would be good as payment on the note.”
This instruction is not applicable to the testimony, and was calculated to mislead the jury. There was no testimony that Helguson, as agent, took the money, the proceeds of the wheat, for the plaintiffs, nor that the money was applied on the note. There is no evidence that a dollar of money, the proceeds of the wheat, was ever in the possession either of the defendant or of Helguson.
The testimony of defendant is that Helguson did not apply the proceeds of the wheat to the payment of the note. Because of its' inapplicability to the testimony, and its tendency to mislead, this instruction should not have been given.
II. The verdict of the jury is contrary to the evidence.
Defendant must pay the note, and must look to Helguson for pay for his wheat.
Reversed.