99 Iowa 671 | Iowa | 1896
Exhibit C: “Centerville, Iowa, Sept. 11, 1889. To the Campbell Banking Co., Centerville, Iowa — Gentlemen: I hereby agree to allow my brother, C. W. Worman, to use my name as security to your bank for $6,000 dollars upon these conditions: He having handed you a mortgage for fourteen thousand dollars ($14,000.00), Sept. 7th, covering his homestead (and two other pieces of property), specified in deed, — that this deed or paper be not placed upon record or made public without the consent of both C. W. Worman and myself. Also, that he shall have same credit at your bank and may have (as previously), should he so desire, from one to three years in which to pay said amount, from time to time as this amount- is paid you — I am to receive receipts and same reduced in amount of my guarantee. You are also to advise me how C. W. Worman affairs stands, in your judgment. Should sale of \ int. in property take place, and C. W. Worman apply money to extent of $7,500.00 to his obligation here, my obligation to you shall cease, and you will also release said mortgage to him. D. C. Campbell.”
At the same time, and as a part of the same transaction, C. W. Worman and wife executed to plaintiff, on account of said indebtedness, their note for seven thousand four hundred and twenty-nine dollars and forty-five cents, and C. W. Worman and J. A. Worman executed to plaintiff their note for the balance of said indebtedness, namely, six thousand dollars; whereupon-said two former promissory notes, evidencing said indebtedness; were canceled. At the maturity of said six thousand dollars, C. W. Worman executed a note in renewal thereof, signing his own and J. A. Worman’s
It is argued on behalf of defendant that if this was a continuing guaranty the plaintiff is not entitled to recover, for the reason that he did not notify defendant of advances made under the guaranty. In the view we take of the case, it is unnecessary that we consider this claim of the defendant.
Our conclusion is that the guaranty was as to six thousand dollars of the existing indebtedness, that the authority given to C. W. Worman to use the name of J. A. Worman as security to the plaintiff was as to said six thousand dollars, and that, the note in suit being given for another and different indebtedness, C. W. Worman had no authority to sign the name of J. A. Worman thereto. Entertaining these views, we think the court properly sustained the defendant’s motion for a verdict on plaintiff’s cause of action. The defendant not having appealed, we are not called upon to consider the action of the court in directing the verdict for the plaintiff on the defendant’s counter-claim. For the reasons stated the judgment of the district court is affirmed.