Edwards & Beardsley v. Trulock

37 Iowa 244 | Iowa | 1873

Day, J.

1. Apotas. I. The first and Second assignments of error may be considered together. There is no error in the ruling of the court- that the defendant’s appeal brought into the circuit court for trial the cause of action on the account. Plaintiffs sued the defendants for a certain indebtedness evidenced by a note and an account, and as is authorized by section 2935 of the Revision they set forth their claim in both forms, stating that they sought to recover upon but one claim.

The real question presented was not whether defendants were indebted to plaintiffs on a note, or on an account, but whether they were indebted at all upon either. The material inquiry was whether the defendants owed the plaintiffs, not whether the indebtedness arose upon an account or upon a note.

The appeal brought up the cause for trial on its merits. Revision, § 3932. This cause was the liability of defendants to plaintiffs upon a note or upon an account. It was not competent for the defendant to divide the cause, and present upon appeal but a part of it, to wit: his liability upon a note. It was not necessary for plaintiffs to appeal from the judgment of the court dismissing their cause of action on the account. Plaintiffs had nothing from which they could appeal. They recovered all they asked. They prayed for judgment on the account or on the note. They recovered judgment on the note. Having this they were not entitled to judgment on the account. It was immaterial to them what became of the cause of action on the account. Having rendered judgment on the note it was not, perhaps, necessary that the cause of action on the account should be dismissed. But its dismissal, so long as the judgment on the note remained, worked no prejudice to plaintiffs, and it was not necessary that they should appeal therefrom.

II. The remaining assignments involve the question of the liability of defendants upon the account after the execution of the note.

a. Payment. If this note had been executed by both members of the firm, or under such circumstances as to bind both, it would not have discharged the indebtedness evidenced by the account, nor have constituted a bar to an action thereon, unless it had been received in satisfaction of it. Gower v. Holloway, 13 Iowa, 154; McLaren v. Hall, 26 id. 297. Por a greater reason must this be true where the note does not bind the parties whose names appear thereto as makers, as it is conceded, and even urged by appellant, this one does not. There is no proof that the note in question was taken in satisfaction of the account.

This view disposes of the alleged error in holding the note void as to Overton. Por if the note, though valid as to both parties, does not satisfy the account, it does not do so, if valid as to Overton, and this finding of the court is immaterial.

This view disposes of all the errors assigned.

Affirmed.