Evans, J.
' Teclea Verdict: when permissime: conflict-mg evidence. I. The causes of action set up in both counts were related to the same, general facts. Prior to December, 1909, the defendant Smith was engaged in the livery business at Sioux City. At that time the plaintiff purchased a half interest in the business paying ... therefor $2,060. The partnership continued ; A nine months when in September, 1910, the
plaintiff sold out to Smith. In pursuance of such sale Smith executed his note to the plaintiff for $2,000 due in one year. It is the plaintiff’s contention that a $2,000 note was given in payment for the plaintiff’s half interest in the livery stock; that the amount of cash and accounts already earned was by oral agreement to be divided between them; that Smith had overdrawn his share of the cash collected by $135; that there were uncollected accounts outstanding to the amount of about $135; that to equalize his overdraft and to cover one-half of the uncollected accounts, Smith agreed to pay plaintiff $135; that he agreed to do so as soon as he could collect it.
This is the agreement involved in the first count. The testimony of the plaintiff thereon was undisputed. It was [103]*103somewhat confused in some of its details but such details were not material. Some stress was laid in the motion to dismiss that the testimony did not show with any certainty what amount was due plaintiff from Smith. This was predicated upon the thought that the agreement was conditional upon the collection of the accounts by Smith and that there was no showing as to how much had been collected by Smith upon the accounts. If the amount of plaintiff’s recovery should be deemed as limited to the amount of Smith’s collections, it still remained that there was something due the plaintiff. Even then he would be entitled to recover one-half of the amount of Smith’s overdraft. But the agreement as testified to was not conditional. The provision for collection was only a stipulation for reasonable time according to the contention of the plaintiff. The plaintiff was clearly entitled to go to the jury upon this count.
[104]*1042 pleading • ac4u of°aIent: burden1^11: pr00f[103]*103II. Turning to the second count there was no issue made upon the execution of the note and its validity. The defense was a plea of settlement for $1,000. Two facts were alleged, as furnishing a sufficient consideration for such settlement, viz.: (1) That Smith was insolvent and (2) that the settlement was made with one Butler, a third party. As to the first fact the evidence of insolvency was very slight indeed. On the other hand there was abundant evidence to justify a finding of solvency. The same remark may be repeated as to a settlement having been made by a third party. For the purpose of obtaining the $1,000 which was paid, Smith borrowed $500 from Butler and gave him security therefor. This is practically Butler’s own testimony and the jury could have thus found the fact. The purported settlement was had in fact without the actual knowledge of the plaintiff and with persons who purported to act as his agents. The plaintiff denied the authority of the agents to make such settlement and claimed to have repudiated the same when he learned of it. It appeared that he had sent the note to Baxter Beed & Co. of Ida Grove for collection. They sent it to the Se[104]*104curity Bank of Sioux City. The Security Bank placed it in the hands of their attorneys. Smith represented to the attorneys that he was insolvent and could not pay and these representations were undoubtedly the moving cause which led to a purported settlement. The attorneys consulted with Baxter Reed & Co. Baxter Reed & Co. consulted by phone with the plaintiff. The plaintiff testified that he expressly refused to consent to such settlement. Baxter Reed & Co. understood it otherwise and they directed the attorneys to accept the amount. The amount collected was remitted to Baxter Reed & Co. who applied the amount upon a note held by them against the plaintiff. The attorneys were strangers to the plaintiff and never had any consultation with him. Both Baxter Reed & Co. and the attorneys-at Sioux ^ity undoubtedly acted in good faith on their part. But the question of authority to settle for less than the amount due on the note was nevertheless vital. The testimony of the plaintiff was sufficient to have justified a verdict in his favor on that question. The defendant pleaded ratification but that also was a question of fact for the jury and the affirmative of it was upon the defendant. The plaintiff was clearly entitled to go to the jury on this count also.
For the reasons indicated the judgment below must be— Reversed.
Deemer, C. J., Weaver and Preston, JJ., concur. Free access — add to your briefcase to read the full text and ask questions with AI