119 Iowa 417 | Iowa | 1903
In March, 1898, the plaintiff exchanged a livery barn, with stock, of the estimated value of $2,500, subject to an incumbrance of $900, to the defendant for a note of $901.33, executed by one Blakely, secured by a second mórtgage on a quarter section of land in Oklahoma, and the difference in cash. The plaintiff testified that, to induce the trade, defendant said that he would guarantee the mortgage to be as good as money, and represented the land to be worth $35 or $40 per acre. The defendant admitted saying that the land was worth both mortgages, and doing what he could to make plaintiff, whom he knew to be without personal knowledge, believe the note and mortgage good. He denied, however, having made any guaranty, and testified that the plaintiff was to take the note without recourse. No exception is taken to the instructions of the court, but it is insisted that the verdict is contrary thereto. The court instructed the jury that, “if the true value of the land was sufficient to protect the security of the note received by the plaintiff from defendant, then the plaintiff cannot recover”; but, if not sufficient he should be allowed “such an amount as would place him in the same position as he would have been if such land or security was sufficient in value to protect such lien,” with interest. The jury returned a verdict of $901.33, with interest from date of the trade. On moti ,n for new trial the court held the verdict to be excessive, ordered a credit of $320 thereon, and rendered judgment for $695.97. The jury also found specially that defendant warranted the land to be equal in value to both mortgages.
II. The assignment of the note introduced contained no condition that it was without recourse. Whether the note was so indorsed does not appear. For these reasors the fifth instruction requested by defendant was properly refused. The distance from the land to the nearest railroad station was a mere circumstance bearing on its value, and not necessarily the subject of a separate instruction.