Turner v. Potter

56 Iowa 251 | Iowa | 1881

Rothrock J.

I. The contract under which the decedent Ward was in possession of the railroad is fully set forth in the case of the United States Rolling Stock Company v. Potter, 48 Iowa, 56, where it was held that said contract was not a lease, and that Ward was not individually liable upon an undertaking entered into by the company prior to his contract therewith. It follows that the plaintiff herein had no right of action against Ward for his claim against the company. All of the indebtedness originated before the contract was made. It is insisted, however, thatnihe estate of Ward is es-stopped by the acts and declarations of the decedent from disputing liability upon the notes in suit. There certainly can be no estoppel arising from the form of the notes, for they do not purport to be the notes of Ward, but the obligations oí the railroad company. Neither can it be claimed that any estoppel arises by reason of the settlement and compromise of the attachment suit which was pending in the State of Missouri. That action was not brought upon the indebtedness upon which this suit is founded. It was upon other obligations of the railroad company. By the compromise the plaintiff was paid in full all he claimed in the suit, and the indebtedness now sought to be recovered, which was then in the form of an account, was by the compromise evidenced by the notes now s in suit. The plaintiff, therefore, surrendered no right as to this indebtedness, by the compromise. The railroad company was then and is now insolvent, and the compromise of the action which was pending in Missouri placed plaintiff in no worse position with reference to this claim than he was before.

II. The notes purport to be the notes of the railroad company, and the estate offWard is not liable thereon unless it be shown that "Ward adopted the name of the railroad company under which to transact this business, and intended by giving the notes in this form to be individually liable thereon. Upon this question the burden of proof was on the plaintiff. The question for our determination is, was there such an absence of evidence tending to establish this issue as to justify the court in directing a verdict for the defendant, under the rule in Muldowney v. I. C. R. R. Co., 32 Iowa, 176, Way v. The same, 35 Id. 585, and other cases in this court.

We have carefully examined the testimony of the witnesses as contained in the abstracts of the respective parties, and more especially the testimony of the plaintiff himself, and, without setting out the evidence here, we deem it sufficient to say that there is nothing in the record tending to show that in the transaction of this business Ward used the name of the railroad company to bind himself individually, nor intended to do so, or that he authorized any agent to sign the name of the railroad company for any other purpose than to bind the company. We do not understand from the evidence of tbe plaintiff, as set out in tbe abstract and additional abstract, tliat any such representation was made to him. lie was one of the station agents of the railroad company, and knew when he took the notes that they were executed in the name of the company.

We think the court did not err in directing a verdict for the defendant.

Affirmed.