169 Iowa 686 | Iowa | 1914
— I. The petition states that on March 24, 1902, the defendant executed and delivered to J. B. Dille his promissory note in terms as follows:
“No.- 'March 24, 1902.
“When present indebtedness of Highland Park Co. is paid, after date for value received, I promise to pay to J. B. Dille or order, Twelve Hundred Fifty and no-100 Dollars, payable at................with interest payable annually at the rate of five per cent per annum until paid. Interest when due to become principal and draw five per cent interest. If this note is not paid when due I agree to pay all reasonable costs of collection, including attorney’s fee, and also consent that a Justice of the Peace may have jurisdiction hereon to any amount not exceeding three hundred dollars.
“$1,250.00. O. H. Longwell.”
It is pleaded that thereafter said note was assigned by endorsement to Florence F. Dille, and later by- her to John F. Dille, by whom this suit is brought; that demand for payment has been made, and no part of the note has been paid, although a reasonable time, about ten years, has elapsed; and that the defendant was an incorporator, officer and principal stockholder in the Highland Park Company when the note was given. 1
A second count pleads that all of the indebtedness referred to in the note has been fully paid and discharged.
It was further pleaded that the part of the contract which was in writing, being the note sued upon, does not truly and correctly express the understanding and intention of the parties, in that it provides for the payment of interest at five per cent, whereas it was understood .and agreed between the parties that the note should bear no interest; that-the written agreement expressed in the note through error or. mistake of the person drawing it did not contain such provision; and that
Following this was a motion on the part of the defendant to transfer the cause to the equity docket, on the ground that equitable issues were tendered in the pleading and prayer for cancellation, and also for reformation of the written instrument. This motion was denied, and from such ruling this appeal is taken.
It is contended by the appellee that not all the issues raised by the answer are equitable, and that therefore a motion to transfer the entire cause could not properly be sustained; that the answer raises no issue nor pleads any facts showing grounds for equitable action; and that appellant by his neglect lost any rights he may have had to a reformation.
III. The plea of mistake in the execution of the note, which we think is sufficient, and the prayer for reformation, while presenting an issue triable in equity, did not for that reason entitle the defendant to have the entire proceeding heard in equity. That issue did not reach to the whole cause of action, and while, if proper motion is presented asking for such, the trial of the question of reformation should be in equity, such does not entitle the defendant to have the case
As the motion of the defendant covered the entire case, unless the plea of cancellation, which went to the whole cause of action, presented an issue triable in equity, there was no error in denying the motion to transfer.
the condition upon which the note was given had not been or could not be fulfilled. There is no plea of any fraud entering into the execution of the note, or of conditions which rendered it invalid at the time of its execution, and such generally is a prerequisite to such right. 1 Story’s Equity 694; Brainard v. Holsaple, 4 G. Gr. 485, 487. That which is relied upon as a defensive pleading, and also claimed to be of an equitable nature, goes directly to the condition in the note as to its time of payment, that is, “when the present indebtedness of Highland Park Company is paid, ’ ’ with the further provision as to their successful management of the college, and the averment that on account of having disposed of the property the provision as to the payment of its indebtedness cannot be fulfilled. This plea is defensive and does not present an equitable issue in the case, and if proven, may be effectively used in resistance to the action at law upon the written instrument. It is a general rule that a defense asking cancellation may not be made in a pending suit at law upon a written instrument, where the determination of the issue in the law case will definitely settle the rights of the parties. 6 Cyc. 292; 1 Pomeroy Eq., Sec. 179. If the trial and judgment in the law
Y. The conclusions reached render it unnecessary for us to consider the question of laches, or want of proper parties, both of which are raised by the appellee.
The ruling of the trial court is — Affirmed.