181 Iowa 319 | Iowa | 1917
On March 14, 1914, tbe defendant Miles made and delivered to tbe plaintiff bank his promissory note for $2,500, with interest, payable 15 days after date. Tbe indebtedness represented by tbe note was a loan then made to Miles, who was a manufacturer of brick at Cedar Ivapids. Tbe transaction was conducted on tbe part of the bank by its cashier, E. B. Zbanek, and on the part of Miles, in person. With said note, Miles executed, acknowledged and delivered to Zbanek a bill of sale of 600,000 brick, then in bis brickyard in that city, and later in tbe day, and before tbe money was paid over, Miles brought and delivered to Zbanek tbe written guaranty in controversy, which in
“Cedar Rapids, la. Mar. 4, 1914.
“For value received, I hereby guarantee the payment of a note dated at Cedar Rapids, Iowa, March 4, 1914, for $2,500, due 15 days after date, payable to the Central State Bank or order, at its banking house at Cedar Rapids, Iowa, with interest payable quarterly at the rate of sis per cent per annum after date until paid, the said note being signed by Matt J. Miles, at maturity or any time thereafter, with attorneys fees if suit be instituted hereon, waiving demand, notice of non-payment and protest. The above note is further secured by a bill of sale signed by Matt J. Miles to Ed Zbanek on all brick now located at the plant in the Cedar Rapids Brick Company of Cedar Rapids, Iowa.
“M. Ford.”
The note was not paid when due, and on August 19, 1914, this action was begun. The petition sets out the note, the bill of sale, and the written guaranty. It describes the bill of sale as having been made and delivered to the bank as a part of the same transaction in which the note was given, and alleges that the guaranty also entered into the transaction as a part thereof. Nonpayment of the note is averred, and judgment asked against both defendants for the full amount of principal and interest. By an amendment to the petition, after the cause had been pending about eight months and had been reached for trial, plaintiff withdrew the allegation that the bill of sale had been made to it to secure the debt, and in place thereof alleged that said instrument had been given to Zbanek to secure Ford against liability on his guaranty.
Answering the petition, Ford admits the note made by Miles to the plaintiff, and admits executing the guaranty. He denies that the bill of sale to the cashier was made to
The principal fact propositions about which the contest on the trial below centered were those attending the execution of the written guaranty. The only persons having personal knowledge of these circumstances are the defendant Ford, the maker of the note, Miles, and the plaintiff’s cashier, Zbanek. The testimony of Ford and Miles tends strongly to show that Miles first applied to the bank for a loan, but the bank refused to let him have the money on his personal note, and suggested that he get some responsible surety. Miles, who had not yet approached Ford on the subject, asked Zbanek if Ford would be an acceptable security, and was told that he would. Zbanek then prepared a note, with which Miles went to Ford and requested his signature. Ford refused this request, and Miles returned to the bank and reported his failure. Later, he came back to the bank and proposed to give a bill of sale on his stock of brick. At that time, he had about 800,000 brick in his yard, of the market value of about $7 per 1,000. Zbanek refused to consider the idea of lending money on that security, but the inquiry arose, at whose instance it does not appear, whether, if a bill of sale were given upon the stock of brick, Ford might not then be willing to sign
At the close of the testimony, counsel for the defendant Ford moved the court for a directed verdict in his favor, on the ground that the evidence shows without conflict that the bank took the bill of sale to secure the payment of the note, that such bill of sale afforded ample security for the payment, and that, by the bank’s failure to record the instrument, and by permitting the sale by Miles of the property covered by it, the security which would have protected both the bank and the guarantor was wholly lost. The motion to direct was sustained, and verdict returned for defendant, and thereupon judgment was rendered against plaintiff for the costs.
“A loss of securities by the fault of the creditor only
It follows, without further discussion, that the issues should have been submitted to the jury for its verdict, under instructions fairly presenting both the theory of the x>lain-tiff and the theory of the defendant; and for the error in directing a verdict, the judgment must be reversed and the cause remanded for a new trial.
Other alleged errors have been argued, but, as they involve questions which will not necessarily arise upon a new trial, or are of a character to be controlled by the views we have already expressed, we shall not further consider them. Whether the language of the guaranty sued upon estops the plaintiff from denying that it held the bill of sale as security for the payment of the note, is a question not definitely argued by counsel, and we express no opinion thereon, but mention it here only to avoid any inference that the subject has been foreclosed by this decision. — Revised and remanded.