Farmers' Bank v. Arthur

75 Iowa 129 | Iowa | 1888

Robinson, J.—

i appeal • error uiioeutpre3' I. The administrator of the estate of Platt filed a petition of intervention, in which he a^ege(i that the note in suit was signed by defendant as joint maker; that, notwithstanding that fact, defendant had filed against the estate of decedent a claim for the amount due on the note, which he asked to have allowed in case plaintiff succeeds in this action, on the alleged ground that he signed the note as surety only. The intervenor asks to be made a party plaintiff with the bank; that defendant be held to have signed the note as joint maker, and not as surety ; and that he have judgment for costs. A motion to strike the petition of intervention from the files, made by defendant, was overruled, and defendant thereupon filed an answer to it. The action of the court in overruling the motion to strike, and in sustaining certain objections made by intervenor to evidence, is objected to by appellant. If the action complained of was in fact erroneous, and if appellant is now in position to urge his objection, we should have to hold the error to be without prejudice, for the reason that no judgment was rendered in favor of intervenor, nor was he given relief of any kind.

2. promissory ersMp1: right of action. II. Appellant insists that plaintiff has not shown title to the note in suit. It was made payable “to the orfIer of Geo. S. Murphy, cashier, at First National Bank of Jessup, Iowa,” and indorsed to plaintiff in words following: “Pay Farmers’ Bank, Jessup, Iowa, or order, for account of First National Bank, Jessup, Iowa. Geo. S. Murphy, cashier.” It is shown that the First National Bank ceased to exist April 20,1886. The note is in the possession of plaintiff, and it is presumed to own it, in the absence of proof to the contrary. The indorsement does not show that the First National Bank is the owner. The petition alleges that it is owned by plaintiff, and numerous admissions in the answer show that this was not controverted by defendant, although the answer contains a general denial of matters not admitted. We think the proof of ownership is sufficient.

3__; loss of d°schÍiSs¿ oo-maker. III. A chattel mortgage was given' by decedent to secure the note in suit. A part of the mortgaged property was sold at private sale, and the proceeds applied in payment of the note, qhe defendant' complains of the refusal of the district court to give an instruction which contained the following : “ Plaintiff must further show what disposition has been made of the property described in said mortgage, not shown by plaintiff to have been sold. If any portion of said property is claimed by plaintiff to have been lost, or to have died, the plaintiff must show by a preponderance of the evidence that such loss or death was without fault or neglect on the part of the plaintiff.” The evidence tends to show that the mortgage was given at the request and for the benefit of defendant; that it was kept from the records at his request; that it was given in November, 1885 ; and that the property therein described remained in the possession of the mortgagor, Platt, until his death, five months later ; that some of the property could not then be found, but that the administrator of decedent took possession of all he could find, and sold the same for its value, and applied the proceeds on the note. Under these facts it was not necessary for plaintiff to account for property which could not be found when the administrator attempted to take possession of it. If any of it had been sold by decedent, or taken to pay his debts, plaintiff would not have been responsible, in the absence of consent. Nor was it the duty of plaintiff tó show what had become of the property which it had not reduced to possession. It was the understanding of all parties that the property should remain in the possession of the mortgagor, and no duty was imposed upon plaintiff to preserve it. In our opinion the instruction was properly refused.

IY. Other questions are discussed by counsel. The most important of them are based upon the theory that defendant signed the note as surety only ; and, in view of the special findings of the jury, they are not material in this case. There was evidence sufficient to sustain the special finding, and also the general verdict. We find no prejudicial error in any of the matters discussed. The judgment of the district court is therefore

Affirmed.