75 Iowa 481 | Iowa | 1888
But we do not think the instructions asked should have been given. They ignored the fact that the petition alleged, and some of the evidence tended to prove, that defendant agreed, as a part of the consideration for the payment of the money to him, to repay it if plaintiff could show that he was not indebted to defendant. In fact, the latter admits substantially that this was the case. It must be conceded that, so far as appellee was-concerned, he knew all the facts as to his liability when he paid the money. He was charged with having wrongfully taken goods from the store and money from the till of defendant. He knew whether he had so taken them or not. Appellee urges that he did not know the-facts upon which appellant’s demand was based when the payment was made; but that only amounts to a. claim that he did not know the evidence by which appellant could sustain his demand. Having paid the money with full knowledge of the facts in regard to his alleged liability, we think the appellee cannot recover on the-first count of his petition without showing that he did not owe to defendant the money paid him. The release
charge, nor does the evidence tend to show, that Lauderbaugh knew that the claim on which his action was brought was not well founded. On the contrary, the evidence tends strongly to show that he acted in good faith throughout the entire transaction. He did not deceive appellee, for the evident reason that the latter had greater knowledge of the facts upon which the claim was founded than any one else could have. The allegations of the second count, that the writ of attachment-was wrongfully, wilfully and maliciously sued out, are made to depend upon the further allegation, that when it was sued out the defendant therein was not about to dispose of his property with intent to defraud his creditors, and the plaintiff therein had no reasonable cause to believe that he was.