42 Iowa 18 | Iowa | 1875
rThe following instruction requested by plaintiff was, after the modification shown therein, given to the jury: “If you find that Dr. Chilcote was one of the parties in interest (though his name was not used), in the case of Mt. Pleasant Bank against Conger, in which recovery was made against Conger on his bid, and you find that Cliilcote made no effort to prevent the prosecution of this case, then the judgment against Conger on the bid would be.conclusive against Chilcote, and Chilcote would be liable to pay whatever amount Conger had to-pay on that judgment. Modified by the court thus: This is true, but he must have been a party in interest, in the legal sense of the term. Ilis having in the contract assumed to pay to the Mt. Pleasant Bank the sum which said bank was entitled to under plaintiff’s bid for the land, did not make him such a party in interest as that he would be bound by the judgment, without notice having been given him of the pendency of the suit, and request made to defend, but-no particular form is needed for such notice or request. It is sufficient so that the same was fairly done and was so understood by the. defendant.”
On the other hand, defendant’s relation to plaintiff was such that it created in him a legal interest in the subject matter of the action. He was by contract with plaintiff bound to pay to the Mt. Pleasant Bank whatever sum it was entitled to recover from plaintiff on his bid for the land! Defendant’s interest in the action was double; it was on the side of both plaintiff and defendant therein.
II. It cannot be successfully urged, as is attempted by defendant’s counsel, that there was no evidence rendering this instruction applicable to the facts. A contract existed between the two banks to the effect that each should share in the benefits of any action brought by the other to foreclose the mortgage. This contract was in evidence. In all the transactions involved in the suit, defendant acted as the agent of the Washington Bank. This fact is pleaded by him and is abundantly proved by the evidence.
Defendant’s interest on the side of Conger, in the action by the Mt. Pleasant Bank, is shown by the contract between them above referred to.
Neither can it be claimed, in view of what we have just stated, that the verdict of the jury, if based upon the doctrine of this instruction, was unsupported by the evidence.
YII. Much of counsel’s argument is devoted to the point that the Mt. Pleasant Bank was not entitled to recover in the action against Conger, and to questions connected therewith. It is not necessary that the point should receive attention in this opinion, As the case was presented to the jury, if they found that defendant was a party in interest in that suit, or notice of its pendency and request to defend were given to, and made upon, him, the judgment in that action they were to regard as binding upon him. This would preclude inquiry of matters involved in the action,
The foregoing discussion disposes of the case. It is our opinion that the judgment of the District Court ought to be
Affirmed.