84 Iowa 547 | Iowa | 1892
I. The plaintiffs placed in the hands of the defendant, as an attorney, three notes for
“2. The court instructs you that an attorney or lawyer to whom a note is sent for collection has no right or authority, without the consent of the owner or*550 person sending such note for collection, to receive anything in payment therefor except money; and that if the defendant in this case did, without authority therefor, take the machine from I. C. Powell, the maker of said note, as and for full payment of said note, and thereupon surrendered said note to said Powell, and took the machine into his own possession, then the defendant is liable to the plaintiffs for the amount due upon said note at the time he exchanged the same for said machine, together with interest thereon at the rate of six per cent, per annum from the date of such surrender down to the date of your verdict, and your verdict should be for the plaintiffs for that amount.”
The instruction was refused, and the court said to the jury: “The plaintiffs seek to recover upon the express promise of the defendant to pay the amount of the first note; and, if defendant is liable in this action for this note, it must be on this promise having- been made by him.”
It is said by the appellant that if the defendant, without authority, took the machine and surrendered the note, the law implies his promise to pay the note; and it is urged that the district court wrongfully interpreted the issue in the case. The court was not to define the rules under which the defendant might be liable, but the rule of his liability under the pleadings. The count of the petition clearly declares on an express oral contract. . The contract, in such a case, is the basis of the liability and not the tort. The tort is only necessary in proof to show a consideration for the verbal promise. "We may plainly illustrate by supposing the promise to have been in writing instead of verbal. The law would then have presumed a consideration. Could it be thought, in an action on the written promise to pay, that there could be a recovery on a promise implied by the law because of the wrongful act? As well might one attempt to recover on a verbal promise under such
II. The court, in effect, took from the jury the consideration of the case, as to the' first count of the petition, by saying: “You are instructed that the count of the petition wherein a collection is alleged, and a recovery sought thereon, is not to be considered by you.” This action is urged as error, but we think it is not. The amendment to the petition shows that the original was filed without a knowledge of the facts, and to recover money received in payment of the notes. The amendment filed after the close of the testimony presents the entire case under the testimony, and no prejudice could result from the action of the court.
III. As to the two remaining notes, there was a correspondence between the plaintiffs and the defendant,
“Upon the question of the two notes upon which the two mares were taken by. Mr. Goldsmith, you are instructed that the plaintiffs allege that they placed the said notes in the hands of Mr. Goldsmith for collection. This the defendant admits. It appears from the evidence that Mr. Goldsmith made a contract with the plaintiffs whereby he was personally to pay the plaintiffs the sum of one hundred and fifty dollars and interest thereon in full of the two notes, and that the plaintiffs accepted and received the one hundred and fifty dollars in full satisfaction and payment of the two notes. It further appears that Mr. Goldsmith took in satisfaction of the notes two certain black mares from Mr. Powell, which he sold by note for two hundred and sixty-two dollars and fifty cents.”
It is urged to us that the court erred in its statement of the facts under the evidence, by which the jury is told that “it appears from the evidence that Mr. Goldsmith made a contract with the plaintiffs whereby
“Sac City, Iowa, September 7, 1886.
“J. G. McMath, Esq., Canton. Ohio.
“Dear Sir: — We write you to-day concerning the two notes, of one hundred eighty dollars and sixty-seven cents each, made by I. C. Powell to C. Aultman ■& Co., and secured by second mortgage upon his real estate. The first mortgage has been foreclosed, as you have been notified before, and amount of said judgment, cost and interest is something over one thousand, •five hundred dollars,' on eighty acres of land. He has nothing else that can be utilized in making your claim, but we have a chance by which we can realize for you from one hundred and twenty-five to one hundred aud fifty dollars, provided the notes are delivered and mortgage released. Unless you think there is something in redeeming the land from the sheriff’s sale, we would- advise you to make this deal, or empower us to do so. Please advise us at once. The note secured by chattel mortgage we have arranged for in another way, •concerning which we shall write you fully in a few days. Yours, respectfully,
“Goldsmith & Hart.”
“Sao City, Iowa, September 14, 1886.
“J. G. McMath, Esq., Canton, Ohio.
“Dear Sir: — In reference to yours of sixteenth instant, we would say that we cannot see how you*554 can get oyer one hundred and fifty dollars out of these-claims, net to you, i. e., we will engage to collect yon one hundred and fifty dollars, with interest from date, on or before six months, and also collect all our charges-from Mr. Powell. We think this the best you can do, unless you wish to redeem the land, when you might-get two hundred dollars or a little more out of it by holding the land. Please let us know if you will accept our offer, as whatever is done should be done quickly.
“Yours,
“Goldsmith & Habt.
“P. 8. Of course you understand that you will have to release the mortgage and deliver the notes.. Mr. Powell has some exempt property which he is will ing to sell to raise this amount, and it is all he can do.”'
“Canton, Ohio, September 17, 1886
“Messrs. Goldsmith & Kart, Sac City, Iowa:
“Gehtlbmen : I have your letter of the fourteenth in regard to the proposition to pay one hundred and fifty dollars in full of our two notes, numbers 129,437 and 38, against I. 0. Powell. Have considered the matter further, and will accept your proposition, i. e., that, upon the payment of one hundred and fifty dollars with interest from date, we will turn over to you those two notes, and cancel the second mortgage which we have upon the real estate. Respectfully yours,
“J. 0. McMath.”
“Sac City, Iowa, September 23, 1886.
“J. C. McMath, JEsq., Canton, Ohio:
“Deab Sib: Yours of seventeenth at hand*, contents noted. You can send us release of the mortgage, with instructions to deliver the same, together with the notes secured by same, upon the payment of one hundred and fifty dollars net to you, with eight percent. interest from this date. ' We may have to hold this a few days to dispose of property, but will turn it as soon as possible. Will allow you the eight per cent, interest, however, from this date. We will be person*555 ally responsible for the fulfilling of this proposition, provided release is received at once.
“Yours respectfully,
“Goldsmith & Hast.”
“Canton, Ohio, September 27, 1886.
“Messrs. Goldsmith & Hart, Attorneys, Sac City, Iowa:
“Dear Sirs: Yours of twenty-third inst., referring to notes 129,437 and 129,438, of I. C. Powell, has been received. The satisfaction piece which you sent not being well adapted to the circumstances, I have used one of our own forms. The president of C. Ault-man & Co. is seldom here, and Mr. • Fogle is fully authorized. I presume our form will do as well. You are empowered to deliver the writing to Mr. Powell, together with notes 129,437 and 129,438, upon the payment by him of net one hundred fifty dollars and interest from date. Respectfully,
“J. C. McMath.”
“Sac City-, Iowa, September 29, 1886.
“ James G. McMath, Canton, Ohio:
“Dear Sir: Yours of the twenty-fifth instant received, with satisfaction piece, as stated.
“Yours respectfully,
“Goldsmith & Hart.”
The only justification for the court’s statement of what the evidence establishes is that such facts only are deducible from the correspondence. If the evidence is conflicting, or other conclusions of fact might legally be found, the action of the court cannot be sustained. To our minds the import of this correspondence as a whole, and the particular statements therein, are against the conclusion of the district court, — at least to the extent of making it a question for the jury. The defendant’s letters nowhere indicate an intent to purchase the notes, but, in making the proposition to pay one hundred and fifty dollars, it is based upon what the maker is able to do, and that he is willing to sell his exempt property to raise the amount. The letter
Some other questions are argued that are unlikely to arise on another trial, after the discussion we have given the case, and we need not consider them. For the error suggested the judgment is reversed.