Baldwin v. Wheeler

50 Iowa 46 | Iowa | 1878

Day, J.

i.assisumbstt: ñaua. It may be conceded that the assignment was made by plaintiff to Oakley for the purpose and under the circumstances alleged by plaintiff; but from a careful examination of the testimony, we feel constrained to hold that the claim of plaintiff respecting the assignment of the bond to Wheeler is not sustained by the evidence. The assignment from Baldwin to 'Wheeler expressly states that it is made in consideration of Wheeler agreeing to procure an extension of time on a note and mortgage for five hundred dollars given to Charles Smith. The plaintiff does not himself testify with any positiveness or distinctness to any fraud perpetrated upon him. He admits that the assignment was handed to him; that he looked it over the best he could, and tried to read it as understandingly as he could. Eespecting the assignment, Wheeler testified as follows :

“ On the 12fch of December, 1876,1 took a new assignment of the Drury contract from Baldwin." The assignment and that writing expressed the whole contract in relation to the assignment. * * * * There were several present. I remember S. L. Lage, W. S. Angood, and James Carlin were present in the office, and I think others. The assignment was read over to Mr. Baldwin by myself and W. S. Angood. After I wrote it I read it aloud to Mr. Baldwin, and handed it to him and told him to read it. He read a part — I should think more than half — of it aloud, then said he could not see it very well, and handed it to W. S. Angood, who began at the beginning and read it all to Mr. Baldwin, who then signed it.”

This witness further testified that there never was any conversation between Baldwin and himself in which it was agreed or suggested that, in taking the assignment of the Drury bond, witness was acting as agent or attorney, or in any way, for Baldwin, or that the assignment should be for any other purpose than as therein expressed, and that the only consideration for the assignment was the purchasing of the Smith note and mortgage, and giving plaintiff an extension of time thereon.

W. S. Angood, who was present when the assignment was executed, testified as follows: “I recollect of hearing a conversation between Baldwin and Wheeler on that day in relalion to assigning the Drury bond to Wheeler. Baldwin wanted to know if he could get him an extension of time on the Smith note. Wheeler told him he would get extension by getting the note as pay for the bond that he assigned. Baldwin said he would. Wheeler drew up the assignment and read it to Baldwin, and handed it to Baldwin and asked him to read it himself. Baldwin had it in his hands awhile, then said he could not read it very well himself, and asked me to read it for him. I did so, and handed it back to him. Mr. Baldwin said it was all right, and signed it. * * * * * * * There was nothing said about Baldwin assigning the bond to Wheeler to enable him to borrow money, or anything to that effect, nor anything about the Smith note going in as indebtedness against the farm, or Baldwin’s having five years to pay it in. ”

James Carlin testified as follows: “I was in Wheeler’s office December 12, 1876. I went there that day to pay him a note I owed him. Mr. Angood and Mr. Baldwin were in the office when I went there. I think they were waiting for Mr. Wheeler, who had just gone outside to see somebody. I heard Mr. Wheeler and Mr. Baldwin talking about the Smith note. Mr. Wheeler said he would get him an extension of time if he had to trade with Mr. Smith. ' Mr. Baldwin was to give Mr. Wheeler a bond which they had in their hands for getting the extension. An assignment was made and read over. I think Wheeler had it and gave it to Angood, who read it over to Baldwin and explained it to him, so I could understand what it was. I did not hear anything that day about Wheeler acting as agent for Baldwin to borrow money for him, or anything of the kind.”

Baldwin is without corroboration except from the deposition of Philip Farrington, which was suppressed. Even if this be considered, there is a very clear preponderance of evidence that the assignment was fully and fairly read over to Baldwin, that he executed it understandingly, and that the real and only consideration is expressed therein.

It is said that it is unreasonable that Baldwin would give up his interest in so valuable a property for the mere extension of time on a note of five hundred dollars. But it must be remembered that forty acres of the land had been sold at sheriff’s sale, and that one hundred and sixty acres of it are very heavily incumbered by mortgage. These mortgages and this sheriff’s sale would attach to the land whenever the title became vested in Baldwin. Besides, there was a large amount of taxes delinquent. The land was not worth very much more than the liens against it. We are satisfied from the whole testimony that Baldwin had despaired of ever being able to discharge the liens and hold the land, and that he regarded the procuring of an extension on the Smith note, which was secured by a chattel mortgage, as really that much gained. We think the assignment from Baldwin to Wheeler of the Drury bond expresses the only consideration upon which it was executed; that the evidence shows there was no fraud in its procurement, and that it divests Baldwin of all interest in the property. It follows that the judgment of the court below is erroneous, and that it must be

Reversed.