170 Iowa 461 | Iowa | 1915
We cull from the record the following statement which we think fairly states the case. The Iowa Falls Electric Light & Power Company, while the owners of an electric light plant at Iowa Falls, executed three mortgages. The second, securing notes aggregating some $14,-000.00, was owned by the plaintiff. Default was made and this action commenced to' foreclose.
• The contentions of the defendant are, substantially, that in 1910, a former bill was filed to foreclose the same mortgages, which proceeded until April 7, 1910, when formal decree of foreclosure was rendered; that is, a draft of a decree was signed by the judge. At the same date, a contract was made between plaintiff and O. F. Petersen, providing, among other things, that the decree signed by the judge should be deposited with one Harris in escrow pending the carrying out of the other provisions of the contract. That contract was, in substance, an effort on the part of plaintiff and the defendant, Petersen, to fund all the indebtedness of the defendant company by issuing bonds secured by a mortgage for $50,000.00 on the company’s plant; that Petersen should deliver these bonds to plaintiff; that the bonds were
In a further effort to adjust these matters, an arrangement was made between Benjamin and Petersen looking toward a trade for some Oregon land. The third mortgage on the light plant was owned or represented by one Hill. It was also additionally secured by a lien of some character on some kind of plant at Marshalltown. As before indicated, the contemplated settlement between Benjamin and Petersen, which was not consummated, provided for some bonds to be retained by Petersen. The third mortgage was of small value, and it was doubtless hoped that it could be provided for for a nominal consideration. Petersen had already
“If I can get a satisfactory settlement, satisfactory to me of the encumbrances on said farm, that the deal on the Iowa Falls plant goes through, as per our previous arrangement ; if not the papers should be returned. ’ ’
It is conceded by appellee that the papers should probably have been returned, as the deal was not completed, but is contended that the fact that an abstract of title of the Oregon land, with the blank deed, had been left with plaintiff, does not pay the mortgage.
These are the only defenses set up in the pleadings. They are not now seriously relied upon by appellant. We say this because these matters are not covered by the assignments of error which have been made. Upon the trial, the facts were found against appellants, and reliance is now placed by appellants upon matters more or less technical.
Q. “Did Mr.' Benjamin employ you, I will put it that way, to appear here in this case ? ’ ’
Court: “You may answer that question.”
A. “Mr. Benjamin requested me and authorized me to appear for him.” Q.‘“Did he employ you to do so?” A. “That is a legal conclusion I should say; Mr. Benjamin has not paid and I think I can properly say he has not promised in word to pay me any money for my services.” Q. “So you have neither an oral promise nor a written promise from Mr. Benjamin to pay you for your services in this ease?” A. “Unless it may be implied from the fact that I am rendering services with Mr. Benjamin’s knowledge and approval.”