Ruthven Bros. v. Clarke

109 Iowa 25 | Iowa | 1899

Robinson, C. J.

On the sixteenth day of March, 1897, O. E. Olarke, the garnishee, was owing W. H. McCune three hundred dollars, and the latter was owing more than that amount on an unsatisfied judgment rendered in favor of and owned by Ruthven Bros. Before 10 o’clock in the morning of the day specified, McCune drew and delivered an order, a copy of which is as follows: “Ruthven, Iowa, March 16th, 1897. To C. E. Clarke, P. M.: You will pay to E. II. Gid-dings 'the throe hundred dollars due April 1st on post-office outfit for the purpose of paying on certain loan in the Home Savings & Trust Co. of Des Moines, Iowa. W. II. McCune.” A few minutes after 10 o’clock'of the same morning Clarke was garnished under an execution issued on the judgment of Ruthven Bros. The Home Savings & Trust Company filed a petition of intervention, in which they claimed the amount due from the garnishee by virtue of the order to apply on an indebtedness for more than three hundred dollars, evidenced by the promissory note of McCune and his wife. Ruthven Bros, denies that the order was effectual to assign the amount due from Clarke, and alleges that the pretended sale or assignment of that amount was without consideration, and made to hinder, delay, and prevent the collection of the plaintiff’s .debt; that McOune and Giddings conspired together fraudulently to place the money about to become due from Clarke beyond the reach of the plaintiff; and that at the time of the transaction Giddings was not authorized to accept the order for the intervener.

I. The court permitted McOune and Giddings to testify respecting the circumstances under which the order was drawn and delivered, and the conversation they had at that time. The purpose of the testimony was to show that Giddings was the agent and local treasurer of the defendant; that McOune said he might not be in Ruthven when the money which Clarke owed became due, and he wished to give Giddings an order to- collect the money, and “turn it in” to 1 the intervener, as he was its local treasurer. McOune testified that he stated at the time that he wished to transfer his account against Clarke .to the intervener, and that the order was given to accomplish that purpose. We are of the opinion that the evidence was properly admitted. The relation of principal and agent is a condition of which any one having personal knowledge may testify. Huesinkveld v. Insurance Co., 106 Iowa, 229. It did not appear that the authority of Giddings was in writing, and the testimony respecting his agency was not objectionable on any of the grounds stated. It was not necessary that the entire transaction involved in the transfer of the amount owed by Clarke be shown by the order, but it was competent to prove the circumstances of the transaction, and the intent of the parties to it, by other evidence. Moore v. Lowrey, 25 Iowa, 336; McWilliams v. Webb, 32 Iowa, 577; Metcalf v. Kincaid, 87 Iowa, 443.

II. It is said that the evidence failed to show an assignment before the garnishment was effected. There was evidence which tended to show that prior to the transaction ini question McOune bad correspondence witb tbe intervener concerning payment of tbe amount due tbe intervener, and tbe latter bad authorized Giddings to réceive sncb sums as 2 McOune could pay; that after tbe order was drawn, and before tbe garnishment was effected, McOune informed Clarke that tbe claim against him bad been assigned to Giddings as agent for tbe intervener, and that tbe assignment was for the benefit of tbe intervener. It was said in McWilliams v. Webb, supra, that, “where an order is drawn for the whole of tbe fund, it operates as an equitable assignment of it, after notice of tbe drawee, and it becomes bis duty to accept.” See, also, Metcalf v. Kincaid, supra. We are of tbe opinion that tbe jury was authorized by tbe evidence toi find that an assignment of McOune’s claim against Clarke bad been effected before tbe latter was garnished.

III. Tbe intervener was permitted to read in. evidence copies of tbe note and mortgage given to it by McOune and wife, which represented tbe indebtedness on account of which 3 tbe order in controversy was given. Tbe copies were attached to a deposition of E. 0. Spinney, tbe secretary and manager of tbe intervener, and a statement of tbe officer who took the deposition shows that tbe originals were produced, and that they were copied, and copies thereof attached to tire deposition. Section 3736 of tbe Code of 1873, in force when tbe deposition was taken, provided that “all exhibits produced before tbe person taking tbe depositions or proved or referred to by any witness, or correct copies thereof, must be appended to tbe depositions and returned witb them, unless sufficient reason be shown for not so doing”’ That provision did not purport to make competent as evidence anything which before was incompetent, and tbe same is true of section 4700 of tbe Code. A party to an action may have a right to demand tbe production of an original instrument which bis adversary seeks to prove, notwithstanding the fact tlmt a copy of it is attached to a deposition iptro-duced in evidence. The copy may be necessary to' a full understanding of the testimony of the witness who refers to it; and where the owner of the original, because of its value, and the danger of loss, or for the reason that it is needed for other uses, or for any other sufficient cause, declines to have it attached to a deposition, a copy piay be the means of identifying the original when it is regularly offered on the trial of the cause. The case of Bullis v. Easton, 96 Iowa, 513, although not precisely in point, has an important bearing on the question under consideration for the reason that it involved the use of copies of letters, which were produced by a witness who was beyond the jurisdiction of this state, for use in connection' with her deposition, which was taken in another state. It was held that, as the witness refused to attach the originals to her deposition, and as the party who desired to prove their contents could not obtain them, copies were admissible. But in this case the originals were in the possession of the intervener, who offered the copies, and no reasons for failing to produce the originals were shown. As we understand the record, the copies were not offered as preliminary proofs of the originals, or to' identify them as the instruments to which the witness had referred, but as 4 proof of the originals, and in lieu of them. The plain-tiff objected to the use of the copies as evidence, and we are of the opinion that they should not have been received in lieu of the originals. The plaintiff could not, however, have been prejudiced by them, for the reason that the indebtedness was shown by competent evidence.

IY. The appellant complains of the refusal of the court to allow questions asked by it on the cross-examination of JfcCune and Giddings to show that the giving of the order in controversy was for the purpose of delaying and defrauding the plaintiff. Giddings was a son-in-law of IVIcOune, and both resided in Buthven. The order was drawn but a short time before the train on which the sheriff with the execution against McOune arrived in Euthven was due. IfcOune was asked whether he did not have the conversation with Gid-dings and arrange with the latter to collect the order, by reason of the fact that ho knew that the execution had been issued. In response to an objection by the intervener the court stated that, if counsel for the plaintiff would state that they expected to show that the intervener or its agent knew, or had reason to know, that the execution had issued, he would permit an answer to the question; but, as no statement to that effect was .made, the objection was sustained. Similar rulings were made on objections to similar questions. 6 Wo think the rulings, if incorrect, could not have been prejudicial. The knowledge possessed by McCune when the order was drawn, and his intent in giving it, would not have affected the intervener if it did not share in the wrongful intent, and we do not find that it did.

V. The appellant contends that the district court erred in refusing to receive in evidence a letter marked “Exhibit D,” a copy of which is as follows: “Ruthven, Iowa, April 6 22, 1897. (Send no copy of this.) E. C. Spinney, Esq., Des Moines, Iowa — Dear Sir: Tour letter, as requested, is received, and is what we want. Now, we want another letter from you, something like the following: ‘April 22,1897. E. II. Giddings, Rutliven, Iowa — Dear Sir: We learn through Mr. McCune that the delay in the matter of paying all or part of the loan spoken of in a former letter, viz. that of his wife, has been caused by garnishment proceedings. You are hereby authorized to appear in our interests as our agent. And you are given full power of attorney to act for us in this case in the dist. court of Palo Alto county. [Signed] -.’ The above seems to be wanting in order that, if the claim is set up Ered has no power to act in this matter, to set it at rest. There will be no expense to you in the matter, and, fortified with this power of attorney, we can hold the money all right. I will come to Des Moines soon, and can tell you better than to write, and can then thank you personally for these favors. Very respy., W. II. McCune. Send the reply to Bred or to me.” Complaint 7 is alsoi made of the refusal of the court to permit the answers made by Spinney to certain cross interrogatories which tended to show that the intervener regarded the security it held on account of the McCune loan as sufficient, that the intervener had not intended to abandon that security, and that it was not the understanding of the intervener that its action in the matter in controversy was taken for the purpose of defeating the creditors of McCune in the collection of their claims. Had there been any evidence which tended to show that the intervener,' through Spinney, Giddings, or any other agent, had knowledge of the alleged fraudulent purposes of McCune in giving the order, or that there had been collusion on the part of the intervener, the letter and the answers to the questions referred to should have been received. But there is nothing in the record to show such collusion, and nothing which tends to show that the inter-vener had any knowledge of the alleged wrongful intent of McCune. There is nothing to show that the intervener did anything to encourage the letter of McCune, nor that any action was taken upon it. The letter, it will be noticed, was written five weeks after the order was given. It may have been inspired by the desire of McCune to have the order upheld in order to release to that extent the mortgaged property, but it was not, alone, evidence of any wrong on the part of the intervener.

VI. The intervener was permitted to introduce in evidence a copy of a resolution adopted by its board of directors In October, 1897, which, in terms, ratified and approved the action of Giddings in accepting the order in suit, and directing that, when collected, it should be credited on the McCune 8 note. The copy should have been excluded on the objection of plaintiff, as no reason was shown for not Introducing the original, and because the rights of the respective parties in interest were fixed at the time garnishment was accomplished and could not be changed by subsequent action on the part of the intervener. But we are of 9 the opinion that the evidence of the resolution received could not have been prejudicial, for the reason that other and uncontradicted evidence showed that Giddings was authorized by the intervener “to receive such amount” as the McCunes were able to pay on their loan. To take an order for the money about to become due to McGune was within the scope of the power conferred upon 10 - Giddings two weeks before the order was delivered. It is true that credit for the order was not given when it was received, and that until paid it was held, in a sense, as additional security; but it was a legitimate method of collecting money to apply on the debt, and, as between the parties to the transaction, the existence of the debt was a sufficient consideration for the order. "Whether, in view of the fact that credit was not given for it, and that no extension of time was granted on account of it, the order would have been void as against creditors under any circumstances, we need not determine. It was good, even without a valuable consideration, as against persons not prejudiced by it; and it is not shown that MeCune is insolvent, nor that the plaintiff cannot satisfy its claim from other property yet held by him. It is claimed that, as Giddings was the local treasurer of the intervener, he was made the agent of MeCune by a certain provision of the by-laws of the intervener; but the authority of Giddings to take the order was not derived from his office of local treasurer as fixed by the by-law referred to, but by direct authority from the manager of the intervener.

VII. The conclusions announced dispose of the- controlling questions in the case. As there was no evidence of fraud on the part of the intervener, it was not necessary to submit the question of fraud to the jury. Other questions discussed by counsel are not of sufficient importance to justify special mention. The evidence sustains the verdict. We do not find that prejudicial error was committed by the district court, and its judgment is aefiRmed.