22 Iowa 508 | Iowa | 1867
II. The testimony tended to show that the defendants were indebted to the plaintiff, in a considerable sum— more than the note sued on; that the note sued on was also signed by Kendall & Tallant, as sureties/ that the defendants, who were bankers, failed or suspended payment prior to March, 1858; that plaintiff requested payment of defendants, who offered to pay in notes of others held by them, and among others exhibited a note held by them on Start & Gaddis, for over $2,000; that the plaintiff, by its president, H. B. Spelman, took said note to inquire after the solvency of the makers and as to its probable payment; that in a few days afterward the plaintiff’s president called at the defendants’ place of business, and there met two of the defendants’ firm and their book-keeper, Field ; that at this interview, as plaintiff claims, the note on Start & Gaddis was given to plaintiff as collateral, while the defendants claim that it was given in payment of the note sued upon. They agree in the fact that, after conversation about it, the defendants left, and the plaintiff took the note in their absence and gave a receipt for it, as collateral, to the defendants’ book-keeper; the defendants testify that before they left, they gave plaintiff to understand that the note of Start & Gaddis would only be given in payment; that the book-keeper had no authority to make any arrangement about it, as plaintiff well knew; that Start & Gad-dis afterward failed, and only paid about twenty-five cents on the dollar of their indebtedness, including the note delivered to plaintiff The plaintiff continued to hold the note sued upon, and never surrendered it to the defendants, and defendants repudiated to their book-keeper his action in taking the receipt when informed of it; but continued to hold the receipt up to the trial. This is, of course, but
The defendants claim, and their testimony tended to support the claim, that the plaintiff and its president, Spelman, were given to understand that defendants would not give the note as collateral, and that plaintiff could only take it as payment of the claims held against defendants. The plaintiff denies this claim, and offered testimony tending to-support such denial. Which claim is true, was a matter for the jury to find. Now, if Spelman took the note in the absence of defendants — after they had left, but “ did not himself intend to take it in payment,” such intention on his part would not defeat
The fourth instruction asked by the plaintiff is the same in theory and substance as the third, and should also have been given. The modification of the fifth was not material — it was only verbal. It, certainly, was not prejudicial to the plaintiff, nor objectionable in the eyes of the law.
The sixth was given. The seventh, eighth and ninth relate to the burden of proof, to the credibility of witnesses, and to particular facts claimed by plaintiff to have been proved, and direct the jury that they may be considered, etc. While the peculiar language of each may be vulnerable to objections, yet they severally contain, substantially, correct legal propositions, and might, with slight modifications in phraseology, have been properly given.
The modification of the twelfth was merely verbal, and neither prejudicial to plaintiff nor erroneous in law. The fourteenth is of the same class of the ninth, and what is there said, is alike applicable to the fourteenth. The fifteenth -.was given. This disposes of the plaintiff’s instructions. We must dispose of the defendants’ instructions even more summarily than of the plaintiff’s. The first instruction asked by defendants was refused, but it might properly have been given.. It is as follows: “If the jury believe from the evidence that plaintiff, by Spelman, their agent, received the Start & Gaddis note in satisfaction of the • note sued on, they should find for the defendants.” The second is like unto it, and should also have been given instead of refused.
■The third embodies the same principle as the modification of plaintiff’s first, and was, for the reasons stated in the discussion of that, properly given. The fourth is the same, in substance, as defendants’ first, with the addition
The sixth is as follows: “ The receipt drawn by Field, and signed by Spelman, is not binding upon defendants’ unless it was according to the agreement between Warren and Spelman, and unless Field had authority from defendants to make it.”
This was given and excepted to. There should have been added to this instruction the further qualification or-element, as follows: “ or the defendants have since ratified his act in that matter.”
Without this or the like qualification, it was error to - give it.
The seventh is vulnerable to the same objection, though not quite to the same extent. Neither the eighth or ninth were excepted to. The tenth embodies the principle of law, as to silence in relation to, and ratification of, unauthorized agents’ acts, as we have laid down the rule in discussing the plaintiffs’ tenth instruction, and it was tBBW8PP9Wl8rror to give it. The eleventh was refused. It belongs to the same class as plaintiffs’ ninflÜf^llWWiat is said in relation to that, may be properly applied to this.
We have thus completed a review of the instructions given, modified and refused. For the error in refusing the plaintiffs’ third and fourth, and in giving the defendants’ sixth and seventh, the judgment of the District Court must be reversed.
We have thus far reviewed the instructions as they were asked by the parties. From this review it is apparent that the case is not a difficult one. If the plaintiffs took the Start & Gaddis note in payment of the note sued on, they cannot recover. If they took it as collateral only, and have not been guilty of laches in relation thereto, they can recover. If the defendants .
Bevorsed.