Tolman & King v. Johnson, 43 Iowa 127

Tolman & King v. Johnson

43 Iowa 127 | Iowa | 1876

Beck, J.

I. The defendants pleaded, as a defense to the action, that the note was given in part for intoxicating liquors sold in contravention of the laws of the State, and a sum paid by defendants to plaintiffs for intoxicating liquors sold in violation of law is pleaded as a counter-claim, and judgment prayed therefor. As a further defense to the foreclosure of the mortgage, the answer sets up that the instrument was not signed by defendants and is upon their homestead, they being husband and wife. The defenses first stated will be first considered.

The evidence satisfactorily establishes that a part of the consideration of the note was certain intoxicating liquors sold by plaintiff’s agent to defendant, W. S. Johnson, at Corning. That the contract of sale was made there cannot be disputed. The agent solicited the order at that place and it was there given, and the terms of the contract were such that defendant was not to accept the liquors until they were inspected at Corning, and proved satisfactory. Under this contract the goods were shipped from Chicago, where plaintiffs were doing business, and upon proving satisfactory were received by defendants. Under the contract defendants were to pay freight upon the goods for their carriage to Corning, but, if not accepted, plaintiffs were to pay the charges upon their return transportation. By the express terms of the contract of sale, it was performed in this State. It is essentially different from the contract involved in Whitlock v. Workman & Co., 13 Iowa, 351, which is cited by plaintiff’s counsel.

i contract • llquors-promissory note. II. The evidence satisfactorily establishes that the sale of the liquors was for purposes forbidden by the law of this State, was known to plaintiff’s agent at the time, Under the familiar statutes and decisions prevail-j¡ng pere contract is void, and no recovery can be had upon the note so for as it covers the alleged consideration.

*130_____ counter-claim, III. But plaintiffs insist that payment was made for the liquors, and they were included in an account upon which certain credits were allowed of cash received from defendants. The item for the liquors was the first in the account and the credits exceeded it in amount. Plaintiff’s counsel maintain that under the rules governing the application of payments, the charge for the liquors will be presumed to have been paid. We are relieved of the duty of passing upon this point, by reason of the fact that defendants pleaded the payment of the liquors as a counter-claim, and seek to recover therefor. As the sale was illegal this they can do. Code § 1550. Should we hold that the liquors were paid for, under the pleadings in the case defendants may diminish recovery on the note to the extent of the amount paid.

IY. We are not required to pass upon the questions involving the validity of the mortgage, and its binding effect upon the property described therein, for this reason. We find that the judgment rendered upon the note is for the amount due thereon, after deducting the sum paid for the intoxicating liquors. Plaintiffs are entitled to nothing more than the amount of the judgment. The abstract before us shows that, prior to the perfecting of the appeal, defendants paid the judgment and costs in full. This payment of the judgment satisfies plaintiff’s claim under the mortgage, and even if it be held to have been valid it is discharged, for its object, the security of the debt has been accomplished.

The fact that plaintiffs refuse to accept from the clerk of the court the amount of the judgment does not alter the case. The receipt of the money by the clerk satisfied the judgment and the mortgage. The money is in the hands of the clerk, for plaintiffs’ acceptance, when they deem it proper to receive it.

No other questions are presented in the case. The judgment is

Affirmed.