69 Iowa 467 | Iowa | 1886
The first question is whether any part of the indebtedness evidenced by plaintiff’s judgment against F. A. Gere is chargeable on the property of N. M. Gere on the ground that it is for expenses of the family. Plaintiff’s testate kept a general store, and for a number of years F. A. Gere purchased from him the groceries and other merchandise used and consumed by his family. The goods were generally sold on credit, and there were a number of accountings between the parties. On the twelfth of May, 1875, the amount of Gere’s indebtedness at the store was $575, and he gave his promissory note for that sum. He made other pin-chases after that date, but the books kept in the business show that he paid the balance due on the account in December of the same year, and it appears that he had no further dealings with the store after that time. The note on which the judgment was rendered, as stated above, was executed on the twenty-fifth of September, 1877. Plaintiff claims that a portion of the debt evidenced by the note executed May 12,1875, was unpaid at that date, and that this amount was included in the $400 note; and the question whether she is entitled to relief on this ground depends on whether she has established this claim.
Gere was examined as a witness on the trial, and he produced the $575 note. Two credits are indorsed on it in the handwriting of the book-keeper and business agent of the testate, and no question is made as to their correctness. When the last of these credits was given, it left a balance of $138.69 due on the note. But Gere testified that he paid this balance and took up the note some time before the $400 note was given, and that the consideration of that note was the surrender of a number of notes which he had given to other parties, and which had been purchased by the testate. The only evidence offered by plaintiff to establish her claim, that the $400 note included part of the indebtedness originally evidenced by the note for $575, was the testimony of the book-keeper who kept the books in the store, and with whom
It is clear from the testimony of this witness that he has no distinct recollection of the transaction in which the $400 note was given, and he is certainly mistaken as to the origin of the larger part of the indebtedness evidenced by it. ITis impression was that the whole amount of the indebtedness was for merchandise, but it is clear that Gere’s indebtedness on account of merchandise sold him could not, at that time, have exceeded $138.69, the balance remaining due on the $575 note when the last credit was indorsed upon it. If he was not contradicted by any direct or positive evidence, perhaps his testimony would warrant us in finding that that balance, together with the interest thereon, was included in the note; but we cannot so find without entirely discrediting the witness Gere, and this we are not warranted in doing. He is neither impeached nor contradicted by positive testimony,- and his story is neither unreasonable nor incredible. The burden was on plaintiff to establish this allegation of her petition. She has failed to prove it; the clear preponderance of the evidence on the question being against her. The finding of the district court on the question is contrary to the evidence, and the judgment entered upon that finding is erroneous.
II. The horse covered by the policy of insurance was purchased in the state of Nebraska from one Fairchild. The claim of defendant is that this purchase was made by the defendant N. M. Gere, and that she afterwards sold the animal to her husband, taking his promissory notes for the purchase price, and a mortgage on the horse securing the same. The price which Fairchild was to receive for the horse was $800, of which amount $500 was paid in cash at the time of the sale. A watch valued at $50 was also taken by Fairchild
It is apparent that the question whether the chattel mortgage and the assignment of the policy of insurance are valid, depends upon whether defendant N. M. Gere was the real purchaser of the horse from Fairchild. It is shown that at the time of the transaction, and for some time before that, F. A. Gere was insolvent. The farm on which the parties lived belonged to the wife, as did also the stock and personal property upon it. She was indebted, however, for a portion of the purchase price of the farm, and it was mortgaged to secure that debt. The horse was a Clydesdale stallion, and was bought for breeding purposes, and was kept for that pnrpose by F. A. Gex’e up to the time of the loss, which occuri-ed some months after the ¡xurehase from Fairchild. F. A. Gere testified that in making the purchase he acted as agent for his wife, and that the $500 with which he purchased the draft which he took to Nebraska, when he went there to xnake the purchase, was given him by his wife, and was lxer money. Fairchild testified that he understood, at the time of the transaction, that Mrs. Gex*e was the purchaser, and he gave a bill of sale of the horse to hex’.
There is ixo positive evidence contradicting any of these statements. Ooxmsel for plaintiff coxxtends, however, that the claim that Mrs. Gere was the real purchaser from Fairqliild is so xmreasonable as to be unworthy of belief. He insists that it is unreasoixable to suppose that a woman would,
"We think the claim that the mortgage and assignment were fraudulent is not proven.
Eeversed.