159 Iowa 548 | Iowa | 1913
On the 1st day of January, 1912, plaintiff filed his petition in the superior court of Shenandoah, Iowa, alleging, among other things: That during the winter of 1904 and 1905 defendant solicited him to purchase stock in the corporation then being organized by this defendant, and known as the O’Brien Wagon Works. That the defendant proposed to the plaintiff that, if he would purchase two preferred shares of stock in said corporation, he (defendant), as a part consideration therefor, would guarantee this plaintiff against loss on said stock for a period of five years from the date of the issuance of the stock. That in pursuance thereof the plaintiff agreed to and did subscribe for two shares of stock in the O’Brien Wagon Works of the face value of $100, and paid therefor the sum of $200. That the certificate for the stock so purchased was, at the direction of the plaintiff, issued in the name of plaintiff’s wife. That the certificate so issued to her represented the stock referred to in defendant’s guaranty. That said stock was. at all times the property of the plaintiff. That on the 6th day of April, 1908, the plaintiff’s wife, Mrs. J. Kenigsberg, made a formal assignment of said stock to said plaintiff on the back of the certificate issued therefor. That the certificate of stock and the assign
The stock referred to in the petition is as follows: “ Incorporated under the laws of Iowa. Number 25. 2 Shares. O’Brien Wagon Works. Capital Stock, $100,000. This certifies that Mrs. J. Kenigsberg is the owner of two shares of one hundred dollars each of the preferred capital stock of the O’Brien Wagon Works, fully paid and nonassessable, transferable only on the books of the corporation in person, or by attorney on surrender of this certificate. In witness whereof the duly authorized officers of this corporation have hereunto subscribed their names and caused the corporate seal to be hereto affixed at Shenandoah, Iowa, this 13th day of March, A. D. 1905. Wm. S. O’Brien, President. U. G. Reininger, Secretary. [Seal.]”
The indorsement on the back was as follows: Indorsement on back thereof: “For value received I hereby sell,
The guaranty referred to in petition was as follows:—
‘ ‘ The undersigned hereby personally guarantees Jaeob Kenigsberg against loss on a two-share certificate of Preferred Stock in the O’Brien Wagon Works within five years from date of its issuance. U. Gr. Reininger.”
To plaintiff’s petition, the defendant filed the following demurrer:
(1) That it does not state a cause of action against the defendant.
(2) That said petition fails to connect or assert any legal liability against the defendant and in favor of the plaintiff.
(3) That said petition, on its face, shows a misjoinder of parties.
(4) That, if the facts set forth and alleged in said petition were proved, no legal liability would be due from the defendant to the plaintiff.
And on the 4th day of April, 1912, by leave of court, defendant filed his amendment to demurrer, which was as follows:
' Comes now the defendant and for his amendment to the demurrer, heretofore filed herein, states:
(1) That on the face of said petition it shows that there has been a change of ownership of the stock without consent of the alleged guarantor, thereby waiving all claims for liability upon this defendant.
(2) For the further reason that the terms of said guaranty were not carried out nor executed; the stock having failed to be taken by and issued.to the said Jacob Kenigsberg.
(3) That said alleged contract of guaranty is null, void, and of no effect for the reason, as stated in said petition, that the stock alleged to have been guaranteed was never in fact*552 taken by said Jacob Kenigsberg in Ms name, and if it was taken as alleged to his petition, and placed in his wife’s name, such was without notice to this defendant, and is a violation of the terms of said guaranty, and waives all right of claim upon the said defendants as such guarantor as alleged in said petition.
(4) That said alleged contract of guaranty made by the defendant is indefinite, uncertain, without consideration, not dated, no venue stated, no stock described nor identified, and does not constitute a legal and valid contract or guaranty.
(5) The defendant further demurs to the petition of the plaintiff for the reason that it shows conclusively that no stock was ever issued to the said Jacob Kenigsberg, with knowledge to this defendant, under and pursuant to the alleged contract of guaranty.
(6) That the rules whereby a guaranty can be held have been so violated, altered, modified and changed, as set forth in plaintiff’s petition, that the said defendant cannot be held liable or responsible to this plaintiff for the reason that said guaranty alleged to have been made on or about the time the alleged stock was issued did not run to him, but run to another, and retained by her for about three years, and then transferred to this plaintiff by formal assignment on the back thereof, and not upon the books of the corporation purporting to have issued said stock, thereby discharging the defendant from all liability as such guarantor.
The demurrer admits all facts alleged in the petition, which are well pleaded. The following facts," therefore, must be taken as true: First. That in 190.4 and 1905 the defendant was organizing a corporation to be known as the 0 ’Brien Wagon Works. That about said time he solicited the plaintiff to purchase stock in said corporation.' That he proposed to the plaintiff that, if he would purchase two preferred shares of stock in said corporation so to be organized by him, he would guarantee the plaintiff against any loss on the stock so purchased, for a period of five years, from the date of the issuance of the stock. 'That in pursuance of said offer of guaranty the plaintiff did purchase two shares of preferred stock in the O’Brien Wagon Works of the face value of $100
The fact that the defendant solicited the plaintiff to purchase two shares of preferred stock, that he proposed, as an inducement to the purchase, that he would indemnify the plaintiff against loss on said stock, that he gave plaintiff a written instrument indemnifying him against loss, has strong probative force to our minds that the stock solicited is the stock purchased and the stock on which the plaintiff is indemnified against loss; and we think that the thought suggested by counsel that the written indemnity was given to secure against loss other than this is born of the exigencies of the case. In construing any contract, it is the duty of the court, when controversies arise, to take into consideration all the facts and circumstances attending the matter, especially when the subject-matter of the contract is called in question and where there is any doubt or any ambiguity as to the subject-matter of the contract. Adopting this rule, we see no escape from the conclusion that the written article of indemnity, signed by this defendant and relied on in this case, had relationship to and was made in pursuance of the solicitation to purchase stock, the purchase of this stock by the plaintiff, the issuance of the certificates to represent this stock, and that it was so understood by the parties to the suit at the time.
It will be noticed that, at the time the defendant solicited the purchase, the guaranty was promised and was to be given to indemnify the plaintiff against loss on stock actually pur
Furthermore, the promise of indemnity, being in writing, implies a consideration for its execution. A consideration is implied in a written contract. See Sabin v. Harris, 12 Iowa, 87; Cone v. Cone, 118 Iowa, 158; Arnold v. Kreutzer, 67 Iowa, 214; Jones v. Berryhill, 25 Iowa, 289, 297; Goodpaster v. Porter, 11 Iowa, 161; First M. E. Church v. Donnell, 95 Iowa, 191; Peddicord v. Whittam, 9 Iowa 171.
The contract of indemnity being in writing, it is not necessary that a consideration be alleged in the pleading for the reason above stated. See Linder v. Lake, 6 Iowa, 164; Towsley v. Olds, 6 Iowa, 526; Goodpaster v. Porter, 11 Iowa, 161; Henderson v. Booth, 11 Iowa, 212; State v. Wright, 37 Iowa, 522.
There are other questions argued in the case to which we make no reference for the reason that, under the record, they are not in the case for discussion.
We find no error in the action of the court in overruling the demurrer, and the judgment is therefore Affirmed.