183 Iowa 264 | Iowa | 1917
The circumstances surrounding the parties become of important consideration. The plaintiff transacted the business with the defendant out of which the note originally arose. The real consideration for the note was the purchase of stock in the Sliorthill Corporation, which was being urged and promoted by the plaintiff. So far as the payee bank was concerned, however, the transaction amounted to a loan. The corporate enterprise appears to have failed before it fully materialized. One of the defenses set up by the defendant was that he had been induced to enter into his undertaking through the false representations of Dilenbeck. This claim of defense had been put forward by him to Dilenbeck before Dilenbeck claims to have acquired the note. Dilenbeck’s attitude, in brief, is that, in view of the defense, he undertook to protect'the bank by assuming the burden of the defense himself. This, of course, was also fair and advantageous to the defendant, in that it enabled him to interpose his defense without any barrier of the innocence of the payee in the transaction. The circumstances of the alleged transfer of the note, as they appear in the record, were very brief, and leave much to implication.
“At this time, I told Mr. McQuery that I would take up the Lum Herrold note, and I wished he would figure the interest on it; and he proceeded to do it. I don’t know that McQuery was ever given any authority to sell any of the assets of the bank. I don’t know that 1 ever knew of his exercising any authority in selling notes or other assets of the bank. He had authority to accept payment on past-due paper. He did so right along. I do not know that the board of directors ever authorized hi2n to sell any of the bank’s notes or other bills receivable. I did not attend all of the directors’ meetings.”
He also testified that he paid therefor at that time the full amount of principal and interest, and that he received from' McQuery the possession of the note, and placed the same with his own private papers. McQuery, however, had written upon the back of the note the following endorsement: “Paid by S. S. Dilenbeck and the stock as collateral forfeited to him.” The plaintiff testified also, in substance, that it was not his intention at any time to discharge the note, but to purchase the same; that he did not know, at the time, of the endorsement put thereon by McQuery, and only discovered the same some months later; that there was, in fact, no stock held as collateral of said note; that it was the custom of the bank, in the cancellation of notes, to use the cancellation stamp, and that the same was not used upon the note in question.
Defendant’s motion for a directed verdict, at ihe close of plaintiff’s evidence, was based upon the two following grounds:
*267 “First. Under all the evidence in the record in this case, the jury would not be warranted in finding that the plaintiff was the holder of the promissory note sued upon, or the owner thereof. Second. Under all the evidence in the record, it affirmatively appears that the plaintiff, on or about the 26th day of August, 1915, paid said note sued upon herein; that such payment was made voluntarily by the plaintiff, and not at the request of the defendant or for the defendant’s benefit, and by such payment the note was satisfied and discharged.”
The motion was sustained upon both grounds.
It will be noted that the first ground presented matter in abatement, and the second, matter in bar. It will be seen at a glance, also, that, if the first ground were good, the second could not be considered, for the reason that, if the plaintiff had not acquired the note, no adjudication against him could bar the true holder of the note, who was not a party. Again, if the first ground were overruled, the ruling would necessarily be fatal to the second ground. That is, if it should be found that the transaction between plaintiff and McQuery amounted to a transfer of the note, then it could not be deemed to have been a voluntary payment and discharge of the note. The pivot of -the case, therefore, turns upon the first ground.
We think it clear that the evidence was sufficient to sustain a finding that the plaintiff acquired a transfer of the note to himself, and that the court erred in sustaining the first ground of the defendant’s motion to direct. As already indicated, this conclusion carries down the second, ground with the first. The judgment below must, accordingly, be — Reversed and remanded.