Groneweg v. Kusworm

39 N.W. 288, 75 Iowa 237, 1888 Iowa Sup. LEXIS 315

• Court: Supreme Court of Iowa
• Decided: September 10, 1888
• Status: Published

Opinion

Rothjrook, J.

appeal- ' amendment of time. — I. The record in the c ase is attacked by a motion filed by appellees, based upon several grounds. The motion is supported by affidavits, and there are counter-affidavits ^37. appellant. Appellees seek to strike out part of the amended abstract filed by appellant. This part of the motion is not well taken. The amendment appears to be supported by the record, and it was filed in January, 1888, and before the argument of appellees was served on appellant, and in ample time for the appellees to present any argument they desired upon the record as amended. The motion also asks that certain parts of the bill of exceptions be stricken from the record, and that the case be affirmed. These grounds of the motion will be overruled. They are not well taken in point of fact. The appellant ’ s assignments of error are also attacked as being too indefinite and general. It is only necessary to say in reference thereto that the material errors in the case are sufficiently pointed out in the assignments.

2. Evidence : not relevant to issues II. It will be observed that the plaintiffs, by their petition, sought a recovery upon a claim for money loaned. They introduced evidence, and sought a , , ,. . , ° „ recovery as accommodation indorsers of a ^ draft drawn by one Schweizer upon the defendant, which was protested for non-payment. The draft and indorsements were in the following words :

“$100. Council Bluffs, Ia., 6-15-1885.

“ Pay to the order of First National Bank, C. Bluffs, la., one hundred dollars, with exchange and collection charges, value received, and charge the same to the account of I. Schweizeb.

“ToD. Kusworm, Cincinnati, O.”

On the back of said draft are the following indorsements :

‘‘Gfroneweg & Schoentgen: Pay Union National Bank, Chicago, or order, for account of First National Bank, Council Bluffs, la.

“ S. Fakkswokth, Cashier.

“Pay-or order, for collection, on account of Union Ntl., Chicago.

“U. C. Oaklet, Cashier.

“ Protested June 18, 1885. No. 10,513.

“Albebt Paddock, N. P.”

—And in pencil is written the following: “Do not owe him one cent; has been discharged some time ago.”

One of the plaintiffs testified in regard to the transaction as follows: “ Mr. Schweizer called, and said he was out of money, and needed money for traveling expenses, and asked me to cash his draft on D. Kusworm & Co., for whom he was traveling and selling goods. I made out a draft on D. Kusworm and indorsed it, and he went to the bank and got his money. That draft was paid. About four or five weeks later he called again. He said he usually arranged it to draw money in Council Bluffs ; that he was again out of funds, and wanted to know if I would cash his draft on Mr. Kusworm for one hundred dollars. I indorsed the draft, and he got the money on it. That draft was also paid. About six weeks later Mr. Schweizer called again, and said he had need of another draft for traveling expenses. I made out the draft and indorsed it, and he went to the bank and got the money. About four or five days later that draft came back protested, not paid, and we refunded to the bank the amount of the draft, with protest fees.” He furher testified, in substance, that he had no knowledge when he indorsed the last draft that Schweizer was not then in the employ of Kusworm, the defendant. All of this evidence was objected to by the defendant as incompetent and immaterial, and the objection was overruled. It ought to have been sustained. The action was to recover borrowed money; and the evidence, instead of proving the case made in the petition (if competent in any form of action), tended to show a liability for failure to pay a draft drawn upon the defendant. The evidence introduced upon a trial must have some relevancy to the issues made in the pleadings.

3 AeisscT • aptyrfag^af-' ter discharge. III. As this case is to be remanded to the court below for a new trial, it is proper that we should determine the question made by counsel as whether the evidence as it appears in the recor¿[,shows any liability of the defendant. The facts presented in evidence are in all essential respects like the case of Baudouine v. Grimes, 64 Iowa, 370, where we held that the drawee was not liable. In that case, as in this, previous drafts had been paid by the drawer. An examination of that case will show that it is decisive of this.

Reversed.