| Iowa | May 23, 1893
I. The facts touching this controversy are as follows: In 1883 defendant Teaehout was interested in the Des Moines Ice Company. P. E. Yan Hoesen, the husband of the plaintiff, had been consulting with Teaehout with reference to investing one thousand, five hundred dollars. On Teaehout’s recommendation, P. E. Yan Hoesen agreed to take stock in the ice company to the amount of one thousand, five hundred dollars. He paid this money in, as it was needed for use in the business. The stock was not issued until March 25, 1885. Meantime P. E. Yan Hoesen expressed a desire to own a one-third interest in the company, and induced Teaehout to indorse his note for three thousand, five hundred dollars, to enable him to purchase the additional stock. P. E. Yan Hoesen received the three thousand, five hundred dollars, which, with the money he had already paid in, entitled him to one hundred shares of stock in the company. It w'as agreed that Teaehout should take and hold the Yan Hoesen stock as collateral to protect him as against his indorsement of the three thousand, five hundred dollar note with Yan Hoesen. The stock was not issued for about a year after the money on the three thousand, five hundred dollar note was obtained. Yan Hoesen was entitled to one hundred shares of stock. When the stock was issued, P. E.
Yan Hoesen sold his interest in the ice company in 1885 to Jones & Towne, at which time Yan Hoesen called upon Teachout for the stock. The latter handed him the envelope unopened, under an agreement that Yan Hoesen would bring back to Teachout the col-laterals or the proceeds of the trade, that he might still hold them as a protection against liability for his indorsement aforesaid. It is not disputed that Teachout would not have turned over the collaterals to Yan Hoesen in the absence of the agreement to return them or their proceeds, or to give him a lien on property received from them. Yan Hoesen, after completing his trade with Jones & Towne, returned to Teachout the envelope, with inclosures, which the latter put away without examining, believing that it contained either the same securities or their proceeds, according to agreement. Afterwards Yan Hoesen called for the envelope, stating that he had a trade on hand with one Wishard, and promised he would return the collaterals or their proceeds to Teachout. Relying on his promise, Teachout gave him the envelope with its inclosures. Yan Hoesen thus obtained possession of the collaterals, and never returned them or their proceeds to Teachout.
It seems that Yan Hoesen aold to Jones & Towne the entire one hundred shares of stock, which was paid for by the conveyance to plaintiff of the real estate in controversy in this suit. Jones & Towne also executed their seven notes for five hundred dollars each to P. E. Yan Hoesen. It is by virtue of the title
II.. The only question we are called upon to deter-' mine is: was the real estate levied upon, and the title to which was in plaintiff, in fact the property of P. E. Yan Hoesen, and hence subject to the execution of Teach-out. It is not our custom to enter into an extended discussion of the evidence in equity eases. We can only state in a general way our conclusions, and the reasons on which they rest. It may be conceded that the plaintiff by introducing her deeds in evidence established a prima facie case. To our minds, there is nothing to show that the funds put into the ice company’s stock by P. E. Yan Hoesen were ever the property of the plaintiff. Clearly the three thousand, five hundred dollars which was borrowed by the husband on the strength of Teachout’s indorsement was not hers. Nothing appears in this record which would justify the appellant’s contention that the money paid in by P. E. Yan Hoesen, outside of the three thousand, five hundred dollars, belonged to the plaintiff.' It clearly appears that the husband treated it as his own, and that no claim thereto was ever made to it by the
We do not consider the fact that nearly all the stock was issued in the plaintiff’s name as of controlling importance. Under the circumstances surrounding the issuance of the stock,- it can not be said that the mere fact that it was issued in the plaintiff’s name showed that she had ever furnished any of the money that was paid for the stock. It does not appear that the plaintiff was the party negotiated with in making the trade with Jones & Towne. It appears also that P. E. Van Hoesen and Jones & Towne entered into a written contract touching the deal which resulted in the purchase of the Van Hoesen stock. We think it sufficiently appears that P. E. Van Hoesen had no property other than this stock, and the property obtained for it by the plaintiff.
It is said that Teachout ought not to recover, as he surrendered collateral which was ample to indemnify him for his liability as indorser. We think he never surrendered it, but it was obtained from him by reason of the representations of P. E. Van Hoesen that he would return it or its proceeds, which he never did.
It was claimed that Teachout was entitled to hold only sixty-four shares of the stock as security in any event. True there was a paper signed by plaintiff pledging sixty-four shares to Teachout, to secure him as indorser; but it appears that Teachout did not know of the existence of that paper. He had never examined the contents of the envelope which he supposed contained the collaterals, and, in view of his testimony that the arrangment was that he was to have the entire one hundred, shares as collateral, we conclude that such was the agreement. Neither the plaintiff nor her husband testified. We may fairly presume that what Teachout says about it is true, else they would have testi
We have not deemed it necessary to discuss the legal propositions stated by counsel. The controversy depends largely upon the facts, and. we think they are against the plaintiff. The judgment of the district court is affirmed.