67 Iowa 14 | Iowa | 1885
The note sued on purports to be signed by T. S. Sharp & Co., T. S.' Sharp, D. M. Miller, Henry Miller, Lewis Miller and defendant. By its terms it was payable to the Monroe County Bank, or order. Written on the back is whát purports to be an assignment of the instrument by the bank to plaintiffs, and a guarantee of payment. Defendant’s name is signed to this writing as president of the bank. He answered under oath, denying the genuineness of both signatures. In a reply filed before the trial was commenced plaintiffs allege that the note was assigned to them by the bank for a valuable consideration, and that defendant acted for it in making such assignment, and that he thereby warranted the genuineness of the signatures of the makers, and that he was estopped by these facts from denying the genuineness of his signature to the note.
Defendant testified in his own behalf, denying that he was present at any such negotiation as testified to by plaintiff, or that he ever promised to sign said note, or that he had any knowledge of such transaction until long after the note was delivered to plaintiffs. He was then asked whether there was any mortgage on the brick building, referred to by plaintiff in his testimony, at the time the note purports to have been given. This question was objected to by plaintiffs as immaterial, and the objection was sustained. The same question was asked other witnesses, and excluded on the same ground. These rulings are assigned as error by defendant. These questions were asked with a view of contradicting the statement of plaintiff that the building was mortgaged at the time of the negotiation, and thereby discrediting his testimony. The statement was, however, quite immaterial. The material question in the case was whether defendant’s signature to the note was genuine. Plaintiff testified to a negotiation in which he claimed that defendant agreed to sign it. In the course of his testimony he stated, as a reason why he declined to accept a mortgage, on the building, that it .was already mortgaged. But, in determining whether defendant signed or agreed to sign the note, the reason which influenced plaintiff to decline to accept the mortgage security would be entitled to no consideration whatever. The statement would doubtless have been excluded entirely if a motion to exclude it had been made. It was not relevant to the' isssue, or to any fact which was relevant. And the rule' is
II: There was evidence tending to prove that, in a conversation which took place between the parties before the suit was instituted, defendant requested plaintiff to bring suit against all the makers of the note, including himself, and that the suit was instituted in pursuance of this request, and that defendant did not claim at that time that his signature to the note was a forgery. As applicable to the state of facts which this evidence tended to prove, the court gave the following instruction: “If you find that the defendant believed said note to be a forgery as to the signature, and concealed said fact from plaintiffs, but gave them to understand that it was genuine, and requested and induced the plaintiff to employ counsel and bring suit on the note against all the makers, including himself, you are instructed, that, if the plaintiffs acted upon said request of the defendant, and did employ counsel and bring suit upon said note, under the above state of facts the defendant would now be estopped from denying said signature to be his genuine signature, and your verdict should be for the plaintiffs.”
Two grounds of objection are urged against the instruction: (1) That an estoppel arising out of the facts stated in the instruction was not pleaded; and (2) that said facts do not constitute an estoppel. Plaintiffs contend, however, that we cannot consider these questions, for the reason that no sufficient exception to the instruction was ..... ™ taken by defendant m the district court. The charge to the jury consisted of fifteen instructions, and at the time it was given the defendant caused an exception to be entered in the following words: “To the giving of each and every instruction the defendant, J. A. Edwards, duly excepts.” Some of the instructions are now admitted to be correct, and plaint
Plaintiffs do not deny that-this is the rule. TJiey contend; however, that the error was waived by defendant by permitting the evidence which tended to prove the facts stated in the instruction to be introduced without objection,.and by permitting plaintiffs’ counsel, without objection, to argue to the jury that he was estopped by said facts to deny the genuineness of his signature. Also that the error was cured by an amended reply, which they (plaintiffs) were permitted to file after the verdict was returned, in which the facts stated in the instruction were pleaded as constituting an estoppel. But we are of the opinion that the error was not waived. The evidence which tended to prove said facts was relevant to the issue as it stood at the time it was offered. It tended to prove the conduct and statements of defendant with reference to the subject of the controversy. It had some tendency to prove the genuineness of his signature to the note, and was convpetent evidence to prove that fact. There was no
Other questions are argued by counsel, hut in the view we have taken we do not regard them as material. The judgment is reversed, and the cause remanded for a new trial.
Reversed.