185 Iowa 190 | Iowa | 1919
“Under familiar rules, if matter pleaded as a defense is not attacked by motion or demurrer, and there is testimony to sustain it, it will defeat the action, although it may not have amounted to a legal defense.”
In support, the Zeims case cites Conger v. Crabtree, 88 Iowa 536; Linden v. Green, 81 Iowa 365; and Benjamin v. Vieth, 80 Iowa 149. We have upheld this rule of practice since the so-called Blanchard Act was passed. See Lacy v. County of Kossuth, 106 Iowa 16; Boyd v. J. J. Watson & Co., 101 Iowa 214, at 222; Enix v. Iowa Cent. R. Co., 114 Iowa 508, at 510; Ormsby v. Graham, 123 Iowa 202, at 211; Heiman v. Felder, 178 Iowa 740, at 751; Citizens Bank v. Hickman, 179 Iowa 1178, at 1184. In the last-named case we said:
“The answer stated no defense. But the answer was not challenged by demurrer or motion. In those circumstances, defendant, having prevailed below, can maintain what she there got, if she proved all that she pleaded.”
It follows the motion of plaintiff that verdict be directed in its favor was rightly denied, if there was evidence from which the jury might, in reason, find that, at said earlier time, notes sold through Collins were paid for by certificates of deposit issued by the defendant; that plaintiff knew this fact when it enabled Collins to sell the eleven notes, and then knew, also, that Collins had exercised his own judg
II. Instruction 5 charged that the evidence shows, beyond dispute, that, prior to October 12, 1909, the plaintiffs and defendant had a business transaction under which the trust company either purchased the promissory notes of the corporation, or took the same and sold them for the account of the corporation at six per cent discount and a two' per cent commission; and that it is undisputed that, in April, 1909, in one transaction that took place between the parties, a certificate of deposit for $1,000 was issued; that plaintiff received the same through Collins; and that thereafter, they sent the certificate to Collins, with a request that he send the proceeds of same to plaintiff.
2-a
Instruction 13 charged that, if the jury find that, when John W. Garland directed the eleven notes to be sent to Gollins, Garland intended or had reason to believe that the uotes would be disposed of by Gollins, and that the proceeds thereof, whether in money or property, would be received by Collins, and that Collins would account there-, for to the corporation or to Garland, the verdict must be for defendants. We think there was enough evidence so that the jury might find, contrary to the claim of appellant, that Garland and the corporation did not intend Collins should account with money only, but were willing to receive either money or property. Of course, if the jury could find that this is so, then it amounted to advance authority to take something other than money, — in fact, to take any kind of property; and if that be so, plaintiff could not have a verdict for conversion because property was paid. The restriction was not error.
It may be assumed, for the sake of argument, the jury could find, on the evidence, that plaintiff had given Collins authority to receive payment in property, or had held him out as having such authority, or had misled the defendant
For the errors pointed out in Divisions 3 and 4 of this opinion, there must be a reversal. — Reversed and remandad.