39 Iowa 258 | Iowa | 1874
On the 9th day of May, 1856, S. Gr. Keene, Jonathan Lyon, White & Hervey, with many other citizens of Des Moines, (then called Fort Des Moines,) 'entered into a. written agreement, mutually binding themselves to loan the several sums of money set opposite to their respective names," for the purpose of being used in erecting and fux*nishing a spacious hotel to be kept in the town. For the purpose of carrying out the object of the parties to the instrument, which was to aid by a loan the erection of a hotel of the chax*acter coxxtemplated, and thereby to induce a proper person to undertake the enterprise, it was provided therein that R. W. Syplier, B. F. Allen and Lovell White, be constituted and appointed the attoxmeys in fact of the subsbribers, with general powers to do all things that they themselves personally might do, pertaining to the object intended. They empowex*ed their attorneys especially to make the loan contemplated to the full amount of the aggregate of their subscriptions, to any suitable pex’son upon the terms named in the instrument, and to take such secuxuty therefor as to them should appear satisfactoi*y. The attorneys wex*e especially empowered to collect from the subscribers the several sums they were bound to pay, and apply the same as coxxtemplated in the instrument.
The attorneys named in this instrument, upon the day of its execution, entered ixxto a written contract with James C. Savery, to loan him the money subscxibed for the purpose of building and furnishing a hotel as contemplated by the sub-sci’ibers, agreeing to collect the same under the power conferred upon them. Savery obligated himself to build the hotel within a time specified, and repay the money loaned at a date and with interest named. The details of the agreement as to these matters xxeed not be particularly stated. It was stipulated in this contract that White, one of the trustees for the subscribers to the loan, should act as. the treasurer of the attorneys to whom Savery w*as to apply fox* money. In about
On the same day this agreement was entered into, Savery executed to the trustees an instrument in the form of a promissory note, with conditions for the payment of the amount of money he should, under the arrangement, receive from them. A deed of trust was executed by him upon the town lots whereon the hotel was to be erected, to secure the payment of the money provided for in the instrument just mentioned. James W. Bradshaw was named therein as the trustee.
In 1860, Bradshaw died and the county judge, under authority conferred in the deed of trust, appointed Augustus Newton his successor, who, on the 12th day of September, 1860, upon the written request and statement of certain of the subscribers to the loan, executed to' Savery a release of the deed of trust, and entered satisfaction thereof upon .the record.
Plaintiff brings this action to recover from Savery the amount’of the subscription alleged to have been paid by her intestate, and received by Savery, with interest thereon, according to the terms of the several instruments of writing above mentioned. She alleges performance on the part of the intestate in his life time by the payment of his subscription, and that the satisfaction and cancellation of the deed of trust were done without authority, and fraudulently, and are therefore void.
Pending the action, Wilson T. Smith and James Campbell intervened, each claiming as transferees of the claim and interest of subscribers to the loan. The grounds of the claim of each will be separately considered.
The plaintiff’ and inter1venors each, as relief, ask that the release and satisfaction of the deed of trust be declared fraudulent and void, and be set aside; that judgments be rendered in their favor respectively for the amount of the •subscription and interest upon which each bases the claim set up in his respective pleadings.
We will proceed to consider the cause of action of each party separately.
The fact that plaintiff’s intestate, Keene, was a subscriber to the loan, is not disputed. If his subscription was paid, and the money came into the hands of Savery, plaintiff’s right to recover is not disputed. Rice v. Savery, 22 Iowa, 470. The only task imposed upon us is to determine whether it is shown by legal evidence that his subscription was paid to or received by Savery. Tlie evidence upon which plaintiff claims to establish the fact of the receipt of the money, or its equivalent, by Savery from the subscription of Keene, is as follows:
As has already been stated, White, one of the trustees, was, under the agreement with Savery, to act as treasurer, to collect of the subscribers the amounts for which they were bound, and pay over the same to him. He, at the time, was a member of a banking firm transacting business in the town of Fort Des Moines, as it was called at the time. Before the termination of the transactions involved in this action, more than one change was made in the membership of the firm.' Its style at one time was Maclot, Corbin & White, at another White & Smith, and probably apo'ther change, indicating other parties concerned, was made in the name. The business of these different firms was recorded in the same books; that is, the books of the banking firm first used were continued by its various successors. White, as treasurer of the trustees, appears to have kept no separate account showing the payment of the trust' money to Savery, or to any other person. But Savery had an account in the bank, and upon this account the ■money received upon the subscriptions and paid out to him was entered. He is credited therein with various sums received from subscribers and others. More than one item is entered as “ -cash,” or “ deposit,” without specifying from what source it was obtained.
The debit side of this account shows the payment of a large number of checks drawn by Savery to various persons, many of them to the subscribers to the loan, and, in some instances, for the identical sum with which he is credited as having been, ■.paid by these very persons, and in these cases the credit and
While regarding this receipt and the bank books above referred to as incompetent evidence to establish Savery’s indebtedness, facts are disclosed by this evidence which vindicate the wisdom of the rule of law excluding them. It is very conclusively shown that more than one of the subscribers to the loan did not, in fact, pay one cent to the treasurer, yet the hook account shows payments made by them which are included in the receipt signed by Savery. . Some of these may have made payments directly to Savery in property; others, we have no doubt, paid nothing. Savery testifies that
IY. There is evidence introduced as to other facts which, it is claimed, establishes defendant’s liability. These are the indebtedness of Savery to Keene growing out of other 'transactions, the execution of a note or notes by Savery to Keene, the payment by Savery to Keene of a certain sum on the very day Keene is credited in Savery’s bank account with a like sum, all of which are shown by the record in another action brought by plaintiff against defendant. This evidence, to our mind, fails to establish the conclusions drawn by plaintiff’s counsel.
We conclude that the evidence before us is not sufficient to support plaintiff’s claim for relief, made in her petition; it is therefore dismissed.
INTERVENOR CAMPBELL’S CAUSE OE ACTION.
Y. In addition to the bank books and a certificate of the same character as the one issued by the trustees to Keene above described, other evidence was introduced to support Campbell’s right of recovery. It is shown that he is the transferee of one Lyon who was a subscriber to the loan. Lyon testifies to the payment made by himself to Savery, but in all material particulars he is directly contradicted by the testimony of Savery. The bank books and certificate are just as inadmissi
But there is evidence before us which, to our minds, defeats all right of recovery by Lyon or his assigns. Before the transfer of the claim to Campbell, Lyon joined other subscribers to the loan in the execution of a release purporting to be upon sufficient consideration, discharging Savery “from all claim and demand, debt or contract, for, or on account ” of, the contracts above stated. This instrument, unless impeached for want of consideration (its execution is not denied), will bar any right of recovery on the claim of Lyon assigned to Campbell. It is claimed by Campbell that it' was given without consideration, and Lyon’s testimony is to that effect, but here again he is contradicted by Savery whose testimony supports the sufficiency of the consideration of the instrument. The intervenor fails to establish by a preponderance of evidence the invalidity of the release.
The petition of the intervenor Campbell is also dismissed.
INTERVENOR SMITH’S CAUSE OE ACTION.
YI. The subscriptions upon which Smith’s claim is based were made by White & Hervey and Lovell White. The claim arising thereon became the property of White & Smith, a firm
Smith’s petition of intervention is dismissed. It will be of course without prejudice to any claim or action by White •& Smith.
' The foregoing discussion disposes of all points arising in the case which we are required to determine upon this appeal.
Reversed.