Marsh v. Chown

104 Iowa 556 | Iowa | 1898

Given, J. —

1

2 I. Appellants’ first complaint is of the ruling of the court sustaining appellee’s demurrer to the answer and amendments. The answer and amendments demurred to alleged that the several amounts shown in the notice were given to and received by appellant Nettie Chown, from the plaintiff, her father, under an agreement that the same was an advancement to her, by her father, in anticipation of her share in his estate. Also, that said notes were executed long after said advancements had been made and received, and as mere receipts to show the amounts advanced, and that said .agreements were partly in parol and partly in writing, by letters, which have been lost, or are in the possession of the plaintiff. The question raised by the demurrer is whether these allega.tio.ns showed a defense, or, -in other words, whether evidence thereof is admissible to defeat .a recovery upon the notes. Appellee contends that the promise contained in the notes cannot be varied by prior, or contemporaneous arrangements in parol, or partly in parol .and partly in writing. He contends that, as the answer shows that the alleged agreements that these sums should stand as advancements, and that the notes should be as mere receipts, was partly in parol and partly in- writing, the plea is as if the agreements were ¡all in parol, and constitute no defense. Appellants contend that an advancement is. an irrevocable gift in anticipation of the share of the heir in the estate; that it becomes the absolute property of the one to whom it is given; that it does not create an indebtedness, cannot be recovered back, and, therefore, did not constitute a consideration for the execution of the promissory notes. In re Miller’s Will, 73 Iowa, 123, this court says as follows: “An advancement is an irrevocable gife in anticipation of the share of the heir in the estate. In re Lyon’s Estate 70 Iowa, 375. What is given as an advancement becomes the absolute property of the child'to whom the advancement is made. The father has no claim upon it. and cannot recover it. Neither has he any claim against the child in the nature of a debt He can bring no action against the child on account of the gift and advancement.” The authorities are uniformly to the same effect, and it is, therefore, clear that an advancement previously given and received constitutes no consideration for a promissory note subsequently executed. Now, while it is the law that an express promise in writing, such as these promissory notes contain, cannot be varied by prior or contemporaneous agreements in parol, or partly in parol, yet the consideration of such notes in idle hands of the payee may be questioned Section 2114 of the Code of 1873 is as follows: “The want or failure, in whole or in part, of the consideration of a written contract, may be shown as a defense, total or partial, as the case may be, except to negotiable paper transferred in good faith, and! for a valuable consideration, before maturity.” Section 3070, present Code. See, also, Bank v. Felt, 100 Iowa, 680. Dickson v. Harris, 60 Iowa, 727, cited by appellee, is not in point, inasmuch 'as in that case the promissory note sued upon was executed at the time the money was received, and the defense set up ivas that the money was to- be carried to. Iowa, and applied in satisfaction of a judgment against the plaintiff’s son, and that it was so applied. The defense was not a want of consideration, but of a contemporaneous agreement as to the application of the money received. Atherton v. Dearmond, 33 Iowa, 353, and Barhydt v. Bonney, 55 Iowa, 717, also cited, are not applicable, or in point. Mason v. Mason, 72 Iowa, 457, was an. action upon a promissory note, to which defendant pleaded want of consideration, based upon this state of facts: That his father was having a public sale, and was about to sell a cow that defendant claimed; that the father said to defendant to buy all the stock he wanted at the sale; to give his note for it; that he had. not given him any money to make him equal with the rest, and that he wanted to show that defendant had had that much money advanced. Def endant bid in property, 'and, at the time, and as a part of the transaction, executed the notes sued upon. It was held that evidence of a parol agreement that the notes should be held as. a mere receipt was not admissible, citing Dickson v. Harris, supra. The court says: “It may be, if a parent should make an advancement to a child, and actually deliver the money or property advanced, and, after thus fully executing the gift, he should take a promissory note, the* note would be void,- as being wholly without consideration. It would be a transaction independent of the gift, in that the gift was fully executed. But that is not the question presented in this case. The defendant bid upon the property and it was sold to him, the same as it was to other bidders, and he gave his note the same as other purchasers, and all .that was done was, in effect, one transaction. He gave the note when the property was delivered to him.” It will be observed that in that case the agreement alleged was. in advance of the purchase at the sale, and was a promise to make an advancement, while in this the advancements are alleged to have been made and received prior and independent of the execution of these notes. It is argued that what we have quoted last above was not involved in Mason’s Case, and, therefore, is- mere dicta. It is, nevertheless, the announcement of a rule grounded in equity and reason. In re Lyon’s Estate, supra, is not in point, for the reason that the question of consideration was not involved, as in this case. Accepting the allegation of the answer that these several amounts were given and received as advancements prior to the execution of the notes, it seems to us clear that they did not constitute a consideration for the giving of the*notes, and' that, the notes still being in the hands of the original payee, the defendants may, under the statute quoted-above, plead and prove a want of consideration, in whole, or in part, by agreements in parol as alleged. Our conclusion is that the parts of the answer and .amendments demurred to- show a valid -defense, and that the demurrer should have been overruled.

3 II. Appellants corn-plain tha-t the court struck their amendment to their -answer filed after the close of tlie evidence. Whether or not said amendment should be allowed was discretionary with the court, and we do not think the court abused its discretion. The proposed amendment was largely a repetition of matters that had .already been repeated, and., in view of the compli cation of .answers, the court might very well refuse this .additional amendment.

Appellants’ further complaint® are as to instruction® with reference to the amounts to be considered. As, for the reasons already given, the judgment of the district court must be reversed, and as the matters complained of as to these instructions need not occur upon a re-trial, we do not consider them. For the error in sustaining appellee’s demurrer to the answer and amendments, the judgment of the district court is REVERSED.