72 Iowa 750 | Iowa | 1887
This case is before ns on a second appeal. See 65 Iowa, 692. In the opinion upon the former hearing is a statement of most of the essential facts necessary for an understanding of the case. The defendant avers that he was induced to sign the note by the fraudulent conspiracy of one R. C. Anderson with the officers of the plaintiff, and that the plaintiff took the note with knowledge of the fraud. He also avers that the plaintiff at one time held certain bonds as collateral security, and afterwards surrendered them; and that the defendant thereby became released.
The defendant claims, and we think that the evidence shows, that the mining company did not have sufficient available assets to enable it to meet its indebtedness to the bank, and that the officers of the bank knew- this, or greatly apprehended it. On the other hand, we think that Anderson regarded the company as abundantly solvent. He testified that the company had put something over $40,000 into the mine, and he regarded the company as worth $100,000. The company being pressed by the bank, Anderson, as manager of the company, went to his friend Gifford, the defendant, to obtain assistance. As to precisely what he said to Grifford there is some conflict in the evidence, but it seems certain that he made large representations as to what he expected from the mine, and that Grifford put more or less faith in, what Anderson said about it. It seems, also, that he thought that the mining company was a partnership, that R. O. Anderson, being a member, was personally liable, and that his financial condition was very much better than it was in fact.
These were the circumstances under which Gifford was induced to become surety upon the note. The company was not a partnership, and Anderson was not personally liable. Gifford did not become surety for him, but for the mining company alone..
Suppose that the mining company had been successful, and had paid the note, would any one, in looking back upon the transaction, have said that Anderson’s apprehended or known insolvency should have warned the bank that the defendant could not properly be held as surety upon the mining company’s note, and that the bank, when it took the note, took it at its peril? We think not. It would be a dangerous rule to hold that the apprehended or known insolvency of the principal maker of a note, without more, affects with suspicion the undertaking of a surety. It would be still more dangerous to hold the rule contended for, that the apprehended or known insolvency. of some third person, not
II. Tbe defendant was allowed to. testify, against tbe objection of tbe plaintiff, that be understood tbe mining
c0111]?911! t° be a partnership. In this we think there was error. Tbe law provides that tbe articles of incorporation of every incorporated company shall be spread upon a public record. We may assume that there was a public record of tbe articles of incorporation of tbe mining company. If so, tbe defendant bad constructive notice that tbe mining company was a corporation. But, aside from that, it does not appear that tbe plaintiff did or said anything to lead tbe defendant into tbe mistake, or bad any reason to suppose that such mistake bad been made.
YI. The twelfth instruction given by the court is in these words: “If you find Anderson Bros. Mining & .Railway Company was insolvent at the time the note was taken' for securing the plaintiff for money wrongfully drawn from the bank by R. C. Anderson, on account of Anderson Bros. Mining & Railway Company; that these facts were known to the officers of the bank, but were not known to the public generally, nor to the defendant, Gifford; and the officers of the bank knew, or liad reason to believe, that such facts were not generally known, — it then became their duty, jif they had opportunity, before accepting the note, to disclose said facts to the defendant.”
The giving of this instruction is assigned as error. In the opinion filed in this case upon the former hearing, it appears to us that the court went as far as the law allows, and that the instruction above set out goes one step farther. The instruction, briefly stated, holds that, if there were facts increasing the risk of the surety, known to the bank, but not to him, and the bank had reason to believe that they were not generally known, it became the duty of the bank to inform the surety of them. The instruction omits the condition that the bank had good reason to believe that the facts - were not known to the defendant, and it appears to ns that such omission makes the instruction erroneous. The idea of the court probably was that, if the bank had good reason to believe that the facts were not generally known, it had, as a consequence, good reason to believe that the defendant did not know them. But, in our opinion, this is not so. It is
We think that the court erred in giving the instruction.
.REVERSED.