Lozier v. Graves, 91 Iowa 482

Lozier v. Graves

91 Iowa 482 | Iowa | 1894

Given, J.

I. The following statement of facts will be sufficient for the purposes of the questions discussed: Prior to July 15, 1882, the defendant, then doing business at Dow City Crawford county, as a private banker and real estate broker, acting for the plaintiff, a nonresident, sold a certain tract of land to Charles R. Talcott and to Daniel Grace, each taking a part thereof. In pursuance of this sale, the plaintiff conveyed the land to Talcott and to Grace, receiving as the only payment seven promissory notes from each purchaser, secured by mortgages on the land so sold. The plaintiff indorsed to defendant, without recourse, the first note of Talcott, being for fifty dollars, and the first note of Grace being for one hundred and fifty dollars, mentioned in said mortgages, in payment of defendant’s commissions, and the defendant executed to the plaintiff said written guaranty. Talcott and Grace both failed to pay more than the first year’s interest, and on February 21, 1889, each reconveyed to the plaintiff the land purchased, and the plaintiff executed releases of said mortgages, which releases were filed for record July 21, 1890. The defendant continued to hold and own the notes assigned to him, and no payments were made thereon, except as stated in the answer. There is no dispute as to these facts, but it is questioned whether said reconveyances and satisfactions were made with the knowledge and consent of the defendant. Plaintiff claims that the negotiations for the reconveyances and releases were made through a Mr. Crowell, who acted for the defendant. Defendant denies that Mr. Crowell had authority to act for him in the matter, and denies that *487lie had knowledge of, or consented to, the reconveyances and satisfactions of the mortgages.

1 *4882 *487II. Plaintiff’s first complaint is of certain rulings on the. examination of the witness Grace, called by the defendant. Grace, having given testimony tending to show that the reconveyances and releases were in pursuance of an arrangement with the plaintiff, in person, was asked what the consideration for the reconveyance was, to which he answered, “I was to have back all the notes that were executed for the land;” also, that “the mortgage was to be satisfied.” Plaintiff objected as incompetent and immaterial, and contends that the objections should have been sustained, as the answers stated conclusions, not facts. It is quite common for just such statements to be made, in giving evidence; and while, in a sense, they are conclusions, yet they are also statements of facts. No prejudice can follow from admitting such statements, as it is the privilege of a cross-examination to ascertain upon what they are based. On cross-examination, plaintiff inquired as to transactions with Mr. Crowell with respect to the reconveyances. Defendant’s objections were rightly sustained, because it was not proper cross-examination, the witness not having been asked in chief as to transactions with Crowell. Even if the rulings were erroneous, they were without prejudice, as the transactions with Crowell were fully inquired about afterward. Plaintiff also complains that the defendant was permitted to testify as to the effect of the attachment upon his business, etc. It is argued that defendant’s' counterclaim upon the attachment bond was not withdrawn from the consideration of the jury, because the court inadvertently gave a wrong number to the count. It is entirely clear that that cause of counterclaim was taken from the jury, and was not considered by them. Therefore, there could be no prejudice in admitting the testimony *488objected to. Defendant was asked, “You gave Mr. Crowell no authority to settle them?” referring to the notes set out in defendant’s second counterclaim. The defendant answered, “No, sir; none.” Plaintiff complains that the witness was not asked to state what directions he did give Mr. Crowell. If the answer is correct, he gave him none, and this negative could not be proven in any other manner. Plaintiff also objected to testimony of the defendant to the effect that he had conveyed the land levied upon under the attachment merely to secure the debt. The objection is upon the ground that this is a law action, and that parol evidence is not admissible to show that a deed absolute on its face was intended as a mortgage. This evidence relates to defendant’s counterclaim on the attachment bond, and, that claim having been withdrawn from the jury, there was no prejudice in admitting the evidence, even if erroneous.

3 The defendant moved for a verdict on the plaintiff’s cause of action upon the following, among other, grounds: That the evidence shows without conflict that the notes, the payment of the interest on which the writing sued upon guaranties, have been paid in full by reconveyance of the land to the plaintiff. The evidence tends to show that one of the conditions of the settlement between plaintiff and Talcott and Grace was that the latter should give to plaintiff their promisory note, with security, for five hundred dollars. This was not done, but plaintiff did not insist thereon, but accepted the reconveyance, and released the mortgage in full, thereby waiving his right to the five hundred dollar note. It is true that the reconveyance and release were after the second year’s interest accrued. That interest was primarily due from Talcott and Grace, and in no event due from the defendant, except upon their failure to pay. The evidence does show, without conflict, that the reconvey*489anee of the land was in full satisfaction of all the liabilities of Taleott and Grace, growing out of its purchase. Hence, the mortgage was satisfied in full. Thus, it appears beyond question that Taleott and Grace were not indebted to the plaintiff for this interest, and consequently the defendant stood released upon his guaranty as effectually as if Taleott and Grace had paid the interest money. The indebtedness guarantied having been thus satisfied, it is certainly clear that the defendant was not liable upon his guaranty, and that the motion was properly sustained. Entertaining this view, the other grounds of the motion need not be noticed.

*4904 *489III. Plaintiff moved for a verdict on the second count of defendant’s counterclaim, and by that motion, and his motion for a new trial, presents the question of the sufficiency of the evidence to sustain the verdict in favor of the defendant on that count. In that count, the defendant asks to recover the balance unpaid on the two notes held by him, upon the ground that by receiving the reconveyance of the land, and releasing the mortgages, without the consent of defendant, and conveying the land to an innocent purchaser, plaintiff had defeated defendant’s lien upon the land, and his ability to collect the amount due to him, because of the insolvency of Taleott and Grace. Plaintiff replied that the reconveyance of the land was with the knowlege, consent, and at the instance of defendant. Upon this issue of the fact the evidence is conflicting, and the question was very properly submitted to the jury. We can not say that the jury were not warranted in finding that the reconveyance and satisfaction of the mortgages were without the knowledge or consent of the defendant. This view involved inquiry into the authority of Crowel to bind the defendant in this transaction. Plaintiff asked an instruction to the effect that if Crowel, while acting as cashier of *490defendant’s bank, conducted the transaction by which the land was reconveyed, “then, in law, the defendant will be deemed to have assented to this transaction.” This instruction was properly refused, for it does not appear that the transaction pertained to the employment as cashier, and does appear that, as to matters outside of that employment, Mr. Crowel only acted for the defendant under special instructions. The court properly submitted, as the only question for the jury to determine, whether the release and discharge of the mortgage securing the defendant’s notes was without his knowledge or consent, and if so, whether he had been damaged thereby. Plaintiff complains that his allegation in his reply tüát the notes which defendant held had been settled by Talcott and Grace was not submitted to the jury. There was no evidence that the notes had ever been settled, or paid to the defendant, but simply that they had been settled with the plaintiff. Hence, there was no error in not submitting this issue. Our examination of the record leads us to the conclusion that the judgment of the district court should be aeeibmeh.