121 Iowa 101 | Iowa | 1903
The motion to direct a verdict was based upon the ground that the action was brought upon an unaccepted check, and the evidence fails to show that the drawer had funds in the defendant bank sufficient to pay the same. Other grounds were embraced in the motion, but such are not made the subject of argument on this appeal, and we need not give attention thereto farther than' to say that, in our opinion, the same were not well taken.
Now, there is in the record some testimony tending to prove that after the execution of the rent note given to the bank, it was agreed between the officers of the bank and Bloom that if he should find a purchaser for the land at $40 per acre, and a sale was made, the bank would regard the rent note as paid thereby, and would cancel the same; further, that such purchaser was found by Bloom, and the land sold by the bank at the price fixed. The majority of the court think the evidence now in the record sufficient to have taken the case to the jury upon the question of fact involved, and that a directed verdict should not have been ordered on that ground alone, especially in view of the further fact that some of the evidence offered by plaintiff bearing upon the subject was refused, and some that was introduced was afterwards stricken out on motion of defendant. Taking now into consideration that the jury, had the issue been submitted to it, might have found that the land agreement was made and carried out as alleged, we have the question whether the plaintiff can avail herself of such facts to aid in her recovery.
It seems to be the contention of counsel- for appellee that, inasmuch as plaintiff has elected to bring her action upon the check, that she must be limited to showing that money in a sufficient amount was on deposit in the bank at the time the check was drawn; that she cannot recover as.upon an assignment of the contract debt due her husband, for the reason that she does not claim to hold such an assignment, and for the further reason that no such