3 Iowa 385 | Iowa | 1856
’The defendant claims that tbe court erred in instructing tbe jury, that they might return a verdict against one or both of the defendants. The answer to this is, that if the instruction was erroneous, which we are not prepared to admit, we do not see that tbe defendant, Pitt, is prejudiced thereby, since the verdict was against both defendants. It is claimed, in the second place, that the court erred in granting a new trial as to one, and not as to both defendants, and the question is distinctly presented, whether in the case of tbe joint and several obligors on a promissory note, who unite in their answer, and make the same defence, where the verdict of the jury is against both, it is permissible for the court to grant a new trial as to one, and not as to both of said defendants. W e should state further, that the question in this case, is made not by the plaintiff, but by the defendant to whom the new trial was refused.
We are not satisfied that it was a sufficient reason for granting the new trial to Parker, that the plaintiff waived any verdict against him before the jury retired, and we are quite as far from being satisfied that the defendant, Parker, should have been permitted to set up as a defence against any verdict or judgment against him, that he was merely an accommodation party to tbe note. Without going into these questions at present, although they seem to have been somewhat relied upon by the plaintiff, as furnishing the ground of the action of the court in granting tbe new trial to Parker, we proceed to inquire simply, whether defendant, Pitt, was entitled to a new trial, for the reason that a new trial had been granted to Parker ? The defendants in the District Court, by their joint answer, deny that they or either of them, received any consideration for the notes,, and aver
It is claimed, in the fourth place, that the evidence was insufficient to warrant the verdict of the jury, and that the same should have been set aside as against the weight of the testimony. That there is a conflict in the testimony, we have no hesitation in admitting. Two of the witnesses testify to hearing John Pitt say, at different times, after the notes were given, that Samuel Pitt did not owe him anything; that the notes were given to enable him to pay for his lands ; and that if he had not got them, he would have lost his land. On the other hand, it is shown, that John Pitt had negotiated the notes, and that they had passed out of his hands at the time of said conversation; that about the time said notes were given, John Pitt sold to Samuel one hundred and twenty acres of land; and one of the witnesses testifies, that in-a conversation he had with both of the Pitts, in the spring of 1850, and about the time that Samuel Pitt was starting for California, he understood from them that Parker had signed the notes as an accommodation party, but that he did not understand from them, that Samuel Pitt had signed them as such; and he received the impression that Samuel owed John the amount of the notes, and that Parker had signed them to enable John Pitt-to negotiate them, and raise money to pay for a tract of land he had bought; and that Samuel Pitt’s note at that time, would not be considered very good. Upon this state of evidence, the jury found that Samuel Pitt was liable on the notes, and the District Court having refused to grant the motion for a new trial, on the ground of the insufficiency of the evidence, we are not disposed to disturb the decision.
It is claimed by defendant further, that it is shown by the testimony, that while Bodeman was the holder of the notes
The last point made by defendant is, that the District Court erred in not granting both defendants a new trial, for the reason that plaintiff had no right of action, the notes appearing to have been assigned to Bodeman, without ever having been re-assigned to plaintiff’s intestate. It appears from the record, that the assignment on the back of the notes to Bodeman, had been erased before suit brought. This was sufficient to enable plaintiff to recover, without a re-assignment to John Pitt. The holder of a negotiable note, is -presumed to have the beneficial interest in it. He may strike out any indorsement on it, and being the payee, may bring the action in his own name. Conant v. Willis & Bradley, 1 McLean, 427. But this question was first made to the court on the motion in arrest of judgment, after the verdict by the jury in favor of the plaintiff. It was too late at that stage of the proceedings, to make any objection to the plaintiff’s
Judgment affirmed.