51 Iowa 208 | Iowa | 1879
— I. Certain questions as to the competency of evidence lie at the threshold of the case and must be first considered.
2. The defendant introduced evidence of various declarations and admissions of Jeremiah Willcox after the execution of the note and mortgage as to the amount of the defendant’s indebtedness. The plaintiff objected to this evidence, and the objection was overruled. The plaintiff insists that the taking of the note in the name of Sarah J. Willcox was an assignment of the claim to her, and that an admission of the .assignor, subsequent to the assignment, is not admissible
E. A. Hewitt, who was in the employment of Jeremiah Will-cox, and assisted in making the settlement, among other things testified as follows: “Jackson came there the same day thenote sued on was got up — about the time the business transaction between him and Willcox was counted up. I had told him Willcox wanted him to come over to make a settlement, and also spoke to him that Willcox wanted a mortgage. He came there in the afternoon. I can’t remember exactly the time of day, but to the best of my recollection it was in the afternoon before the settlement was made — in the night. When he came there Willcox was friendly as usual, and treated and talked something in regard to the settlement. We all drank several times. Willcox told him not to go away. Jackson was going somewhere in the neighborhood to get some seed oats, but he concluded to stay there and settle, and he stayed there all night. Along sometime in the evening — I don’t remember whether it was before dark or after dark — the settlement began. * * * * * * I think Jackson and Willcox and myself was all that was there. He got out the notes and went to making calculations. I.was calculating the interest on the notes, and Jackson soon commenced getting seemingly discourage<|, from the conversation. He said certainly he didn’t owe so much. Willcox was standing at the table. Every once in a while he drew out another note, and Jackson seemed to get surprised. He was astonished. He said, £My God! when did I ever give these notes?’ Willcox
It very clearly appears from the evidence that the sum of one hundred and seventy-nine dollars and thirty-four cents, for which a note had been given, was included in an open account, and was thus charged to the defendant twice. The defendant is illiterate. He executed the note sued on by making his mark. It was proved that Jeremiah Willcox, upon several occasions, both shortly before and after the settlement in question, admitted to various persons that the defendant owed him but little, if anything at all.
One Samuel Bowlix testified as follows: “I remember going with Willcox to Jackson’s, sometime in the summer of 1873, to get some stock. We went in a buggy. We saw Jackson. Willcox wanted to buy Jackson’s cattle. Jackson says, T don’t believe I will let you have them,’ and Willcox wanted to know why. He said, ‘You want to credit them on the mortgage and note; I don’t want the credit on them till that is fixed in a different shape from what it is.’ Willcox said, ‘Let me have the cattle and we will fix that up satisfactory at any time you want to.’ ‘No,’ said Jackson, T won’t let you have the cattle,’ and he didn’t get them at that time.
We have set out but a small portion of the evidence, and yet we have alluded to the principal part of the competent evidence immediately connected with the settlement. The whole evidence impresses upon us the conviction that Jeremiah Willcox procured the intoxication of the defendant for the purpose of procuring an unconscionable advantage in the settlement; that the note was fraudulently obtained for an amount too large, and that both it and the mortgage should ue avoided for fraud.
IY. Having found both the note and mortgage fraudulent, it is, perhaps, not necessary to pursue the investigation of this ease any further. The court below found that the mortgage was valid so far as the amount actually due is concerned, and found that amount to be, at the time of the settlement, one thousand nine hundred dollars. The evidence, we think, does not furnish any satisfactory basis for finding this amount to be due. The parties made a settlement sometime in 1868, at which time the defendant gave his note to Jeremiah Willcox for two thousand dollars. This note entered into the settlement at which the note in question was given-. Hewitt testified that there was due on this note, at the time of the settlement, about one thousand nine hundred dollars. This testimony evidently furnishes the basis of the decree below, but this basis is to our minds entirely unsatisfactory. Hewitt testified simply as to the amount which appeared upon the face of the note to be due, allowing for the credits indorsed
Beversed.