87 Iowa 415 | Iowa | 1893
— On the twenty-second day of February, 1888, Crist and Smith purchased of Springer &'Willard a stallion, named “Bosco,” for the agreed price of one thousand, two hundred and fifty dollars, and in payment therefor gave them five hundred dollars in money, and the note in suit. The note was payable on the first of May, 1889, at Webster City, Iowa, with interest thereon at six per cent, per annum. At the time of the purchase, and as a part of the transaction, the parties thereto entered into an agreement in writing, which provided that, if the horse proved not to be a reasonably sure foal getter,, the seller should, at the
The defendants Crist and Smith admitted the making of the note, but pleaded the agreement under which it was taken; that they have complied with the requirements of the agreement on their part, and are entitled to a return of the note; and that the plaintiff took it with knowledge of their rights. In a counterclaim they demand a return of the note. • In their cross petition they plead the facts involved in the purchase of the horse, including the agreement for its return, and the repayment of the purchase price, and allege that, when they returned the horse, Springer & Willard were the owners of the note in suit, and agreed to return it, but thereafter conspired with the plaintiff to transfer the note to it, for the purpose of avoiding the defense which then existed, as against the payees; that the plaintiff was at the time fully informed in regard to such defense, and took the note carrying out a corrupt agreement with Springer & Willard to deprive Crist
“4; * * * In the absence of evidence, the holder of a promissory note, indorsed by the person to whose order it is made payable, is presumed to be a holder in good faith, and entitled to recover. Such presumption may be rebutted or overcome by evidence from which the jury believes either that the note was transferred by the payee after due, or that the party to whom it was transferred took it with notice of the defense thereto.
*419 “5. Thus you will observe that, in order to defeat a recovery by the plaintiff bank, it is incumbent on the defendants Crist and Smith to establish by a preponderance of the evidence, first, the truth of the defense which they have pleaded against the note in suit; and, second, the fact that the bank purchased the note with notice of such defense, or that it made such purchase after the note became due. If both these propositions have been so established, then plaintiff can not recover; but, if either proposition has not been so established, then plaintiff will be entitled to your verdict for the full amount of the note in suit. * *
“8. If you find from the evidence that the plaintiff bank received the notice in good faith, and before it was due, as a collateral security for a loan made to Springer & Willard, and that said loan is still unpaid, then plaintiff will be entitled to a verdict; that is, the holder of a note as collateral security for the payment of a loan made at the time the collateral security is deposited is to be treated as a purchaser, and if he receives such collateral in good faith, and before due, he holds it free from the defenses to which it would be liable in the hands of original holders to the same extent as has already been explained in the preceding paragraphs. * *
It is said that the last paragraph quoted is in conflict with the other two, and that it is erroneous, for the reason that it placed the burden upon the plaintiff of proving that it was a holder in good faith of the note. We do not think the paragraph was intended to have the interpretation given it by the plaintiff, nor that the jury so understood it. The different portions of the charge must be construed together, and, when that is done, it is clear that the jury were told that one who takes a note as collateral security for a loan made at the time it was taken is to be treated as a purchaser, and that, if the plaintiff so took the note in suit, the
Smith claims that, when the ■ horse was returned, Willard led him to think that the note was then in his possession; but, if he had then stated explicitly that he had the note, it would not have affected the rights of plaintiff, for the uncontradicted evidence shows that the note was transferred to the plaintiff in April, 1888, and that it was not thereafter in the possession of Springer & Willard. The most that can be claimed in regard to what Willard said was that the note would be surrendered to Crist and Smith in a certain contingency, but that could have been done only by first obtaining the note from the plaintiff. It is said it should be presumed that the plaintiff was told of the agreement under which the note was taken, and that the agreement and note were kept together. There is nothing in the record to authorize such a presumption, while uncontradicted evidence shows that it would be contrary to the fact. There was no evidence of a conspiracy between the plaintiff and Springer & Willard, and the jury were instructed to that effect. Under the
‘‘The defendants J. M. Crist and C. L. Smith amend their cross bill filed herein against their code-fendants, Springer & Willard, by adding as defendants to said cross bill the plaintiff in the above entitled cause, Mahaska County State Bank. They incorporate the said cross bill and all the averments therein, and the exhibits thereto attached herein by reference, and ask that the same may be considered a part hereof.’7
The pleading then alleged that the note in suit was taken by the plaintiff with knowledge of the agreement under which it was given, and in pursuance of the conspiracy with Springer & Willard to which reference has already been made. A motion to strike that pleading from the files, on the ground that the original cross petition could not, after it was stricken out by order of the court, be amended or incorporated in a new pleading-, and for other reasons, was filed — and sustained. From that ruling an appeal was taken to this court, which reversed so much of the ruling as applied to the first count. See 82 Iowa, 57.
Springer & Willard, although they were named in the petition as parties defendant, did not appear to it, and were not served with notice of it by the plaintiff. They were served with notice of the cross petition, to which they appeared, and, before answering, filed an application to change the place of trial,'as to themselves, on the cause of action stated in the first count -of the cross petition, to Mahaska county. In support
V. It is said that the plea of waiver is not sustained. There was evidence which tended to show the following: After the agreement was signed, the provision in regard to monthly reports was discussed, and Crist and Smith were told that they need not make reports.
The appellees ask that if judgment is rendered against them, and in favor of the plaintiff, for the .amount of the note in suit, they recover a like judgment against Springer & Willard. We find nothing in the proceedings against the last named parties which is prejudicial to them, and Crist and Smith have not .appealed; but the judgment against the plaintiff must be reversed, and the rights of the parties to the cross petition can not be fully adjudicated until the claim of the plaintiff is determined. Therefore the entire cause must be remanded for further proceedings in harmony . with this opinion. Reversed,