32 Iowa 596 | Iowa | 1871
I. It is claimed that the court should have compelled the plaintiff to make more full answers to the second, third and fourth interrogatories, or should have held that, by the failure to make such answers, the defense was established.
The action of the court was, in our opinion, judicious and proper. If the allegations of plaintiff that all of the contracts had been abrogated, canceled and surrendered, and that the lands had been conveyed to him absolutely, in payment of sums due him from Green & Stone,
The court below, taking this view, announced at the time of overruling the motion that he would require the answers to he made, if, in the further progress of the case, they became necessary. The testimony taken upon the trial fully sustained the allegations of the plaintiff, and disproves those of the defendant. Under such circumstances, the answers to these interrogatories, however minute and particular, could not, in any way, have affected the ultimate result.
The defendant is not, therefore, prejudiced by the action of the court.
II. The evidence fully sustains the plaintiff’s case. A review of it in detail would not be profitable. From it the following facts are established, tp wit: Green & Stone in 1862, in their individual names, executed a deed of assignment, in which the note sued on is referred to as constituting part of the firm liabilities. At the time of the settlement between plaintiff and Green & Stone, in August, 1861, it appeared that plaintiff had advanced to them, on account of the purchase of lands, $45,000. These lands had greatly depreciated in value and were conveyed to plaintiff in discharge of the sums by him advanced. In addition to the sum so advanced, the plaintiff had accepted, for the accommodation of Green & Stone, a draft of $2,500, and another of $5,000, which had not matured at the time of the settlement, in 1861, and were not included in it. The $2,500 acceptance was paid at maturity by plaintiff, and the note sued on was given in consideration of such payment. The $5,000 acceptance being held by the Washington Branch Bank of Iowa, and not being paid at maturity, the plaintiff and George C. Stone, in lieu thereof, executed to said bank ten notes of $500 each, one of them falling due every four months. The plaintiff agreed to deliver up to George C. Stone the $2,500 note if he would pay the several notes of $500 as they matured. Stone paid four of said notes, and the plaintiff has been obliged to pay the remaining six. Stone is insolvent. These are in brief the materia] facts in the case. No agreement to discharge the defendant from liability upon the note is shown. An accord and satisfaction is not established. The ten .$500 notes were not given in discharge of the $2,500. They were supported by an independent consideration.
The condition upon which the note sued on was to be delivered up to Stone was never fulfilled by him, and if it had been, his undertaking was to do no more than he was before under legal obligations to do, and hence the agreement to deliver up the $2,500 note was probably without consideration. At all events, not having performed the condition, which entitled him to the note, the agreement is unavailing to the defendant.
We are fully satisfied with the decree of the circuit court.
Affirmed.