55 Iowa 296 | Iowa | 1880
I. The amended and substituted petition, upon which the case was finally submitted for trial, alleges that, from 1843 to 1856 Samuel D. and Jacob Eees were co-partners in the milling business in. Berkley county, Virginia, under the firm name of S. D. Eees & Co.; that plaintiff became the indorser and surety for said firm to several parties, and judgment was rendered against him upon one claim and his property sold thereon, and two other claims he paid; that the aggregate amount of these claims and interest thereon is $24,000; that July 10, 1856, Samuel D. Eees and wife executed to David E. Eees a trust deed conveying certain lands in Virginia, and others in Winneshiek and other counties in this State, in trust to be sold by the trustee and the proceeds to be used in paying the debts of the firm; that the trustee
The second case is no better sujjported by the testimony. The witness shows that in 1856 he adjusted the claim of plaintiff against the firm on account of plaintiff’s payment of another debt for which he was bound as indorser, and found $3,700 due plaintiff. It is shown that all the papers are lost or destroyed, and a witness who had knowledge of the transaction is dead, but there is no testimony that plaintiff recovered judgment on his claim.
The third-case is very similar. It is shown that in 1856 plaintiff prosecuted a claim he held against one Boyd, who set off a claim he held against plaintiff, on account of a note executed by the firm which plaintiff had indorsed. In this case it is not pretended that the papers are lost.
The evidence is too indefinite and uncertain to establish a claim in either case. Two of them are based upon promissory notes-upon which judgments were rendered; it is not shown that the judgments are destroyed. The witness simply states the fact of the existence at one time of such judgment. In the other case it is shown that all the papers are lost; it is not stated that a judgment was rendered against plaintiff. The witness does not pretend to give the substance of the contents of the papers. ITe simply states his memory of the amount due thereon in 1856. The evidence is utterly insufficient to support jdaintiff’s cause of action, and authorize a recovery in this case. Each separate claim is based upon a judgment or promissory notes. No excuse is given for not producing the judgments in evidence. In the case where no judgment seems to have been rendered, it is said that the “papers” are lost or destroyed, but no attempt is made to prove their contents or substance. The court rightly dis
TTT- The defendant insists that plaintiff’s claim is stale, and for that reason equity will not enforce it. ."We need not inquire whether this position is sound, as the petition must be dismissed for want of sufficient evidence to establish plaintiff’s right to recover.
Affirmed.