55 Iowa 538 | Iowa | 1881
— The undisputed facts in this case are as follows: Euller & Hill were dealers in real estate, loans and western securities at Fairfield, Iowa. Howard Darlington was a broker in the city of Philadelphia. Prior to January, 1878, Euller & Hill had been negotiating with Darlington for a loan from Connard to one Parsons. On the 23d day of January, 1878, Euller & Hill advised Darlington by letter that Parsons would not complete the loan, and forwarded an application of Thomas Colgan, the defendant, for a loan of $1,500, asking if Connard would take this loan, agreeing that the date might be made the same as the loan they were negotiating for Parsons, so that interest would be recovered for the time the money lay idle, and requesting a reply by telegram. On the 28th day of January Darlington telegraphed Euller & Hill that Connard would make the loan. On the same day Darlington wrote Fuller & Hill t„o the same effect, and' enclosed a bond and mortgage for execution. At the solicitation of Fuller & Hill Colgan executed a bond for $1,500, payable to Eees Connard, and dated as of January 1, 1878. The bond contains the following recital: “ This bond is secured by a certain mortgage deed, of even date herewith, made by said Thomas Colgan to Eees Connard, which is duly recorded upon the records of Monroe county.” The defendant also executed a mortgage to secure the bond, bearing the same date. On the 30th of January Euller & Hill forwarded the bond to Darlington, and drew upon him a sight draft for
We feel constrained to hold that the defendant has not proved hy competent testimony that he did not receive the •money. Ramsey, the deputy recorder, testifies as follows:
R. B. Townsend testifies as follows: “I was acquainted with J. I). Roberts, who was here in the winter of 1878. He was engaged in the loan agency and abstracting business. I was present and heard a conversation between Mr. Colgan and Roberts. Mr. Colgan called on me to go with him to see about getting his money, and we went to Roberts’ office on two or three different occasions to get his money. Mr. Roberts said he was expecting to get the money from this firm, Fuller, Hill & Black, of Fairfield, but it hadn’t come yet, and I presume we went three or four different times.
Question. Finally, what was the reason he didn’t get his money?
Answer. He failed to get his money. Roberts went to. Fairfield once for him. He said he didn’t know why he acted that way; and I think Colgan went to Fairfield once. It was in the spring I went with Colgan to see Roberts. I could not tell the month. I remember, one evening, Colgan and I went to Roberts, and we went to the Cramer House, expecting one of this firm from Fairfield upon the train with the money, Roberts representing they would be up there. We saw none of the firm of Fuller, Ilill & Black. I don’t recollect seeing any of them. I recollect seeing letters from them in regard to sending the money to him. Roberts would say he received letters and expected the money in a few days, and so it continued on for perhaps three or four weeks, at different times.” All this testimony was- objected to by the
III. One Matthew Ennis filed a petition of intervention claiming a judgment lien upon a portion of the property embraced in the mortgage. The defendant claims that the cause must be affirmed, because no notice of appeal was served upon Ennis. The record does not show that any action was taken upon the petition of intervention. A motion was filed to strike the petition from the files. This motion does not seem to have been acted upon, and it does not appear that any adjudication was had of the rights of the inter-venor. The decree in this case will be without prejudice to the right of the intervenor to assert his claim in a separate action, if he be so advised.
Reversed.