99 Iowa 519 | Iowa | 1896
“Memorandum of agreement, made and entered into this thirteenth day of December, 1898, by and between Ezra A. Brenizer, of Chicago, Cook county, Illinois, first party, and F. O. Adams, of Burlington, Iowa, second party, witnesseth: In consideration of a bill of sale, made and delivered this day of certificate number two (2), representing fifty (50) shares of the capital stock of the Butman Furnace Company, of Chicago, state of Illinois, — said certificate now being held by and hypothecated to the German-American Savings Bank, of. Burlington, Iowa, for a note of two thousand dollars ($2,000) made by party of the first part, — party of the second part hereby agrees to assume payment of said note on or before six (6) months from this date, with interest at the rate of seven (7) per cent, per annum until paid. In witness whereof, said parties have hereunto subscribed their names, the day and year first above written.. Ezra A. Brenizer, F. O. Adams.
“In the presence of T. R. Butman, as witness.”
The contract of assignment was as follows:
“Chicago, Ills., March 6, 1894. For the purpose of indemnifying W. D. Gilbert from liability as surety on my note for $2,000.00, held by the German-American Savings Bank, of Burlington, Iowa, I hereby assign to him the agreement between F. O. Adams and myself, of date December 18th, 1893, for the purchase of fifty (50) shares of the stock of the Butman Furnace Co., of Chicago, together with all my claim under and by virtue thereof against said F. O. Adams. Witness my*523 hand this, the day and "date above written. Ezra A. Brenizer.”
Plaintiff claims that her testator, relying upon the defendant’s contract, induced the bank to extend the time of payment of its note until the thirteenth day of June, 1894. She also claims that after the death of Gilbert, and on or about the twenty-ninth day of August, 1894, she, as executrix of his estate, was compelled to, and did, take up the note, and she brought this action to recover of defendant the amount she paid upon the contracts and agreements above set forth. She recovered judgment in the lower court for the amount she was compelled to pay to take up the note, and the defendant appeals.
I. The appellee has moved to dismiss the appeal, because the appellant has recognized the validity of the judgment, and has paid a portion thereof.
The facts which it is claimed support this motion are as follows:
“In the matter of the excution of Gilbert, executor, vs. Adams, it is agreed that the property levied on may be sold as old iron to Marcus Meyer, at $4.00 per ton, and amount realized credited on the execution. August 9th, 1895. [Signed] Blake & Blake, Attorney for Gilbert. F. O. Adams.”
Pursuant to this agreement, the property was sold, and the sum of sixty-six dollars was applied upon the judgment.
These facts are shown by an amended abstract, filed by appellee. It is doubtful, to say the least.
Afterwards, and on or about February 10, 1894, Gilbert, on the advice and recommendation -of an
This assignment was sent to the furnace company, and in reply the furnace company wrote the following letter, which was dictated and signed by Adams: