Mornyer v. Cooper, 35 Iowa 257

Mornyer v. Cooper

35 Iowa 257 | Iowa | 1872

Miller, J.

l. promissory Liíent I. We do not deem it neccessary to set out all of the special findings. It will be sufficient to state that they find defendants received no oonsideration for the note; that it was obtained by fraud; that Stone purchased the note before maturity, for a valuable consideration, and without any knowledge that it was fraudulently obtained; that the plaintiff* purchased the note of Stone before maturity, paid a valuable consideration therefor, and that he had no notice of the fraud, but “ had his suspicions aroused.”

These are the material and controlling facts in the case, and the only ones put in issue by the pleadings, and it is not claimed by appellants that these facts as found by the jury are unsustained by the evidence, which is not set out *260in the record; indeed, it is admitted by counsel for appellant that “ Stone was a bona fide holder for value before maturity.”

The failure of consideration and fraud between the original parties to the note was no defense or bar to the title of Stone. Had he remained the holder and brought suit thereon, the fraud or failure of consideration would have been no defense to his right of recovery. The same rule applies to the present holder, the plaintiff, although he may have had notice of the fraud or failure of consideration., because he derived a title to the note from a bona fide holder for value. Peabody v. Rees, 18 Iowa, 571; Simon v. Merritt, 33 Iowa, 537; Story on Prom. Notes, § 191, and other cases cited in notes. His right to recover on the note is the same as would have been that of Stone. The special findings are so clearly and palpably inconsistent with the general verdict that it became the duty of the court to disregard the latter and render judgment on the former for the plaintiff. One of the essential facts, upon which the defense rested, the jury found for the plaintiff, and the general verdict should have been for the plaintiff.

z. practice: judgment on special verdict, It is urged that the court had no power to render judgment for plaintiff without having first set aside the judgment rendered for defendants on the general . . _ .. verdict. W hile it would have been more regular to have first set aside the judgment entered for defendants, yet the sustaining of plaintiff’s motion and rendering judgment in his favor had that effect.

3. court: recital?*re00rd II. It is insisted that the court erred in overruling defendant’s motion to set aside, and vacate the judgment rendered on the special verdict for plaintiff, This motion is based on numerous affidavits, tending to show that plaintiff’s motion for judgment on the special verdict was not in fact filed on the day it purports to have been ; that it was filed in vacation and the *261judgment rendered for plaintiff also in vacation. If we were at liberty to consider these affidavits and the counter affidavits filed by plaintiff independently of tbe record we would have no difficulty in coming to the- conclusion that plaintiff’s motion was in fact filed, and tbe action of tbe court thereon bad, after (be adjournment of tbe court, but we cannot receive this evidence to contradict tbe record in the case. Tbe record says that tbe motion was filed and tbe judgment rendered by the court on tbe same day tbe verdict 'was rendered. Tbe record must be taken as absolute verity, and cannot,- as it ought not, on appeal be thus contradicted. Holmes & Avery v. Budd et al., 11 Iowa, 186; Farley, Norris & Co. v. Budd, 14 id. 289.

Tbe judgment of tbe circuit court is

Affirmed.