191 Iowa 786 | Iowa | 1921
In the logical order of events, the introduction of the defendant, Kirby, to his place in this somewhat complex, yet quite transparent, narrative becomes-necessary. Kirby was the proprietor of a mercantile business, carrying a small stock of goods of the value of about $2,000, at the town of Gravity. He was in ill health, and desired to sell out and move to Colorado, and' Dryden and Cleveland were his agents, to find a purchaser. The agents understood that Kirby did not wish to make a trade or exchange, but to sell. In professed pursuance of their agency, they brought Shoop to Kirby’s place of business, and presented him as a prospective buyer. Kirby put a price of $2,000 on his stock, and, after the usual interchange of offers and counter offers, the difference between the parties was reduced to $30, Kirby offering to sell-for $1,900, and Shoop offering to pay $1,870. At this point, Shoop, in whose pocket was the blank deed which he had received from Dryden, said he had an equity in some Madison County land, which he would not Avant if he went into the mercantile business, and proposed to transfer it to Kirby, in addition to the cash offer of $1,870.- Cleveland advised Kirby to take it, telling him that he was getting it for practically nothing; that the equity was really worth from- $800 to $1,000; and that he (Cleveland) would undertake to sell it for that amount. Kirby had in his employ in the store a salesman in whose judgment he had some confidence, and, calling him aside, he asked his opinion. The salesman, to whom Cleveland had already promised a reward,,_if he would help put the deal through, and whose palm was thereafter crossed .by Cleve
Neither the man Kempton nor the agent Dryden himself appeared upon the witness stand, nor did Shoop make any effort to explain away the appearance of fraud attaching to his own conduct in the premises; while Cleveland’s, story, both in what he says and in what he does not say, only strengthens the conclusion that the charges made by the defense are- the substantial truth. That Dryden, Cleveland, Kempton] and Shoop were in combination to bring about the shifting of the burden of Dryden and Cleveland’s debt, by the device of making that debt a lien upon a worthless property and then inveigling some incautious or unwary victim into buying it and assuming such burden, is not open to reasonable doubt. Of Harrell’s position in the matter we will speak later. The manipulations to which the title to this land, already mortgaged for much in excess 'of its real value, was subjected in the short period of less than two weeks immediately following the time when Dryden and Cleveland became Kirby’s agents, are quite illuminating. These
Returning now to the issue joined in this action. The plaintiff, which was represented by Harrell in the alleged loan to Cleveland and Dryden, instituted suit on the note given by the latter in that transaction, and seeks to charge Kirby with personal liability for the amount thereof, because of the provision in the deed from Kempton to Kirby, by which the latter assumed payment of liens to the amount of $7,000. No attempt is made to foreclose the bank’s mortgage. The action is at law, aided by an attachment levied on other property owned by Kirby. Appearing to the action, Kirby denies any liability to pay the note, alleges that the so-called assumption of the debt was obtained by fraud and false representations, and by conspiracy between his agents, Cleveland and Dryden and others, including Harrell, representing the bank. On trial to a jury, a verdict was returned for the defendant; and, its motion for new trial being denied, plaintiff appeals.
I. Confining our review of the case to the objections raised and points discussed in appellant’s argument on appeal, we first consider the exception taken to Paragraphs 5 and 6 of the court’s charge to the jury on the subject of conspiracy. Referring to these instructions, appellant says, “We have no fault to find with the abstract proposition laid down by the court;” but it bases its objection on the proposition that there is no evi
Complaint is also made that, the defendant having submitted to the court several requests for instructions to the jury, the court approved one, and, separating it from the other requests, attached it to the charge which the court had prepared on its own motion, and in that manner gave it to the jury. The instruction was to the effect that the question or relation of “innocent purchasers” was not involved in the case, and that the plaintiff’s claims in this case are subject to all the equities between defendant and Kempton, in the deed from whom the assumption clause is found. The chief criticism of this paragraph is that the manner in which the court attached it to its own charge to the-jury had -the effect to give .it undue emphasis or'prominence, and thereby tended unduly to divert' the attention of the jurors from the consideration of other essential features of the case.
The giving of proper instructions asked by parties to a jury trial is a practice the propriety of which is too well settled for dispute. It is, perhaps, the better practice for the court to embody in its own charge the matter of the approved request; but the giving of it as at the request of the party offering it, "and entitling as such, is not erroneous. The substance of the request, in this instance, is not objectionable.
III. The eighth and ninth paragraphs of the-court’s charge are challenged, on the ground that the burden of proof thereby
If the ruling was erroneous, we think it was without prejudice. It was undisputed that the land was subject to mortgage liens to the amount of $7,000, and it was shown without dispute that the value of the land was less than $3,000. The exhibits in question indicate a foreclosure of a mortgage lien of about $1,000. Why it was thought necessary to introduce this evidence, we do not know. It seems to add nothing to the conceded showing of the burdens upon the title to the property, but we see no way in which the plaintiff was thereby prejudiced. The record as a whole discloses no sufficient reason for disturbing the verdict of the jury, and the judgment for defendant will be affirmed.
YI. There is also an appeal by the defendant from an order of the trial court permitting the plaintiff to substitute copies of the Cleveland and Dryden mortgage to the bank, and of the deed from Kempton. The affirmance of the judgment below on plaintiff’s appeal renders the matters complained of on the defendant’s appeal unimportant and immaterial, and we shall not consider it, except to say that, if it be conceded that the order is an appealable one, we incline to the view that it was not erroneous. It follows from the foregoing discussion that the judgment of the district court is affirmed on both appeals.
Of the costs in this court, one fourth will be taxed to the defendant and three fourths to the plaintiff. — Affmned.