134 Iowa 185 | Iowa | 1907
The note sued upon bears date July 21, 1904, is for $300, payable on demand, with interest, and is signed by defendant and Joe Wiceman. The answer admits the execution of the note, but as matter of defense thereto says that said note and another note for $200 had been given to plaintiff for money borrowed by Wiceman and N. D. Cook, son of defendant, to purchase horses for shipment, and that the money was so used; that the relation of defendant to the transaction was that of a surety only; and that he had a security interest in the horses so purchased until both said notes were fully paid. It is then
II. Complaint is next made of the refusal of the court to give an instruction to the jury as requested. We shall not set out the request. It is sufficient to say that the essential features thereof were embodied in the instructions given, and in as favorable language as plaintiff had right to expect.
It must be confessed that the instructions are not to be commended as models of form, lucidity, and balance; but
Now, on plainest principles, plaintiff was bound to account for the moneys so collected, and conceding that out o£ such moneys the $200 note had been paid, leaving a balance still on hand — and this plaintiff does concede in evidence — there could be no possible justification for a refusal on its part to apply such balance in payment of the note in suit; nor could there be warrant for the rendition of a judgment in its favor for any more than the difference between the amount remaining in its hands and the amount of the note sued upon. Of course, the theory of the counterclaim is that, in virtue of the release of defendant from liability on the notes, he became entitled to have the collateral notes, or the avails thereof, restored to him in toto.
Now, in our view, the only vice of the instruction lies in the fact that it ignores the defense of release as pleaded in the answer — a defense distinct from the counterclaim, and, if proven, complete in itself. But this was error of which the defendant only could- complain.
Upon fair analysis, -we think the sixth instruction should also be sustained. In its initial sentence, the thought of the fifth instruction seems to have been carried along; but, following this, the jury was told, in substance, that, if the agreement contended for by defendant both in his answer and counterclaim had been proven, then defendant was absolved from all liability on the notes signed by him, and was also entitled to have his collaterals restored to him intact, and they should so find. And inasmuch as plaintiff had refused to deliver such collaterals, on familiar principle, defendant was entitled to a money judgment for the value thereof. We conclude that the correctness of the instruction as matter of law is not open to serious doubt, and we are constrained to believe that on fair reading the thought thereof was sufficiently clear to be understandable by the average juror.
We are not disposed to concede merit in the contention. To begin with, it cannot be considered that the verdict as first returned represented a finding to the effect that defendant had not been released on his notes, but that the debt had been paid from collections made by plaintiff on the col-laterals. This is true because it was conceded on all hands that such collections were greatly less in amount than the face of the notes given to the bank. The only way, therefore, in which a verdict could have been found in favor of defendant, was - by adopting the theory that an agreement for a release as alleged in the answer had been proven. As said by counsel for appellant in argument, only two forms of verdict should have been submitted; and this is equivalent to saying —■ as in truth it must be said — that either plaintiff was entitled to recover upon the note sued upon, subject as to amount to the application of payments arising from collections on the collaterals, or defendant was entitled to a verdict for the value of the collaterals.
Now, we agree that the court may not after a sealed verdict recall the jury to the box and send them out under further instructions, with a view to securing a further finding, which shall in effect declare that the rights of the re
So, too, we find nothing of merit in the further contention of plaintiff that a different result should obtain in view of the length of time which elapsed before the jury was recalled, and the fact that some of the jurors had conversed with others concerning the verdict, etc. The jury was not recalled to pass upon any question of right left undetermined by it, but 'simply to complete its work by making calculation of the amount due defendant. It is not conceivable that the performance of this duty could have been influenced by the matters relied upon as constituting prejudice.
VI. Lastly, it is said, on behalf of appellant, that the verdict is not supported by the evidence, and is excessive. Respecting the agreement alleged in the answei*, the oral evidence was in direct conflict. This could not have come about, under the circumstances, save that the witnesses to the point on one side or the other consciously swore falsely. But the question in dispute was for the jury — a. finding might be made either way — and the verdict must be regarded as conclusive. It is said that the verdict was excessive in two- respects: (1) That the collaterals did not amount to $508; (2) that, under the agreement with defendant at the time of deposit, the collateral notes were to secure any other unsecured indebtedness held by the bank against him,, and that a portion of the proceeds of collection had been properly so applied. The record discloses that the face amount of the collateral notes was $452; each note antedated the trial by more than a year, and each bore interest at 8 per cent, from date. The notes are not brought into the record, and we are not advised of the dates of payment. Counsel does not advise us of the amount of the excess in the computation, and we have no accurate means of determining such amount, if any, for ourselves. It would
On the whole, we conclude that there was no error in the judgment, and it is affirmed.