83 Iowa 697 | Iowa | 1891
I. The note in question is for the ■ sum of four thousand dollars. The following is a copy thereof:
*699 “$4,000. Santa Anna, Cal., February 20, 1888.
i. pbomissoby notes: indorsementin wank: aence.-yerdence. States, I promise to pay to Carl Schmitz , r, . A ri tí . or order, at Santa Anna, California, the sum. of four thousand dollai’s ($4,000), with, interest from August 1, 1887, at the rate of .ten per cent, per annum, until paid. Interest payable annually, and, if not so paid as it becomes due, to be compounded, and bear the same rate of interest as the principal; and, in case default should be made in the payment of any interest when due, both principal and interest to become due and payable immediately after such default, at the option of the holder of this note; both principal and interest payable in like gold coin. “On or before .two years after date, for value received, in gold coin of the government of the United
“J. F. Bishop.”
The payment of this note, and another note for thirty-five hundred dollars, of even date therewith, and drawing a like rate of interest, was secured by a mortgage on certain real estate situated in the state of California. On the tenth day of April, 1889, the defendant Schmitz assigned the mortgage securing the payment of said notes to the plaintiff, and indorsed the notes in blank by writing his name on the back of the same, and delivered them to the plaintiff. In consideration for the notes and mortgage, the plaintiff conveyed to said Schmitz a farm in Union county, in this state, consisting of three hundred and sixty acres, and paid him one thousand dollars in money. The mortgage upon the land in California was foreclosed by the plaintiff, and the amount of the note for thirty-five hundred dollars was realized from the foreclosure. The note in controversy was, therefore, unpaid. It was duly protested for non-payment. When this action was brought, Bishop, the maker of the note, made no defense, and judgment was rendered against him for
That this is a valid defense, cannot now be called in question, and we do not understand counsel for the appellant to claim otherwise. The precise question was determined by this court in the case of Harrison v. McKim, 18 Iowa, 485, where it was held that, in an •action by the indorsee against the indorser of a promissory note, on an indorsement made in blank, it is competent for the defendant to show by parol evidence that the plaintiff took the note thus indorsed without recourse.
But it is claimed that the evidence did not warrant the jury in finding that the note was indorsed without recourse, and that the verdict is the result of passion .and prejudice against the plaintiff and his action. It is true that the defendant was the only witness who testified to the alleged agreement, and he was plainly contradicted by the plaintiff in his testimony. There were also at least two other witnesses who contradicted the testimony of the defendant on material facts. So far as the number of witnesses and their testimony is to be considered, the very decided weight of the evidence is with the plaintiff; and it is also to be conceded that the burden was on the defendant to establish the defense by a preponderance of evidence. But juries are always directed by the courts, and properly,, too, that the preponderance of evidence is not necessarily to be determined by the number of witnesses who affirm or deny a given state of facts. There are other considerations to be taken into account, which we need not here discuss,
Y. The defendant attempted to appeal from a ruling of the court upon a demurrer to two counts in the answer. We need not determine whether an appeal will lie in behalf of the appellee. As we find that there is no error demanding a reversal of the judgment, the same will be akftkmed.
8. At the request of the plaintiff you are further instructed that it is wholly immaterial whether the defendant Schmitz left said notes with the witness Davenport, and gave the plaintiff a lien upon them pending the completion of the contract of sale of notes. His liability as an indorser would begin at the time he delivered the note to plaintiff. The question for you to determine is whether when Schmitz indorsed said note it was the agreement between himself and Truman that Truman was to loot solely to Bishop and the mortgage •on the California land for payment, and this you must determine from the evidence.