65 Iowa 551 | Iowa | 1885
I. The petition, as a cause of action, alleges that defendant wrote and sent to them a letter, which was received by them, in the following words:
“Scribner, Burroughs dfr Co.: A. P. Kenyon wants a
££ R. B. Rutherford.”
That plaintiff, relying solely upon'this letter, loaned Kenyon a sum of money, for which he executed his note due in two months, which is set out in the petition; that the note is now due and a balance remains unpaid, a part of the amount having been paid before, and a part after, maturity; and that the note has been presented to defendant for payment, which was refused. An amended petition alleges that, after loaning the money upon the note, plaintiffs, both before and after its maturity, notified defendant of the date of the'maturity of the note; and that the note was shown to defendant, who «‘assented to all the terms and conditions of the note; and agreed-to repay plaintiffs the money so loaned.”
Defendant in his answer admits the execution of the letter, but denies notice of acceptance by plaintiffs, and that he agreed to pay plaintiffs the money loaned to Kenyon. As a further defense, he pleads that on two occasions subsequent to the maturity of the note he inquired of plaintiffs if they had any notes against Kenyon, and, being informed that they had not, he parted with the possession of the property of Kenyon, which he had held, and that Kenyon was at that time and has since been insolvent. The cause was submitted to the jury just before the time prescribed for the adjournment of the term, and therefore the parties agreed that the jury should'return a sealed verdict to the clerk, to be opened after adjournment; either party to have ten days to file a motion for a new trial, to be decided in vacation, and sixty days from the ruling on the motion to prepare and file a bill of exceptions. A motion for a new trial was filed under this agreement, and overruled. Defendant also filed a motion in arrest of judgment, and for judgment non obstante veredicto, which the district court refused to entertain.
’We will proceed to inquire as to the obligations assumed by defendant by the-letter upon which the suit is based. For the sake of clearness, we will here repeat its language, -which is as follows: “ A. P. Kenyon wants a little money’. If you want any one on the note, I will fix it when I come in.” This is not an undertaking to pay money, or in general terms to become liable for money to be borrowed by Kenyon, but, as we shall see, to become bound on a note for the money to be borrowed. The last clause of the letter will bear no other interpretation than that defendant proposed to become liable upon a note to be given for the money. But he does not indicate in what manner he proposes to bind himself by the note. He could become bound in many different ways: (1) He could have executed the note alone, and thus become a sole maker; (2) he could have executed it jointly with Kenyon, and would thus, as between the parties, have been a surety
Other questions discussed by counsel need not be considered. For the errors in the instructions we have pointed out, the judgment of the district court must be
Eeversed.