McNitt v. Helm

33 Iowa 342

• Court: Supreme Court of Iowa
• Decided: February 22, 1871
• Status: Published

Opinion

Beck, Ch. J.

The evidence of defendant is to the effect that he executed the notes, which were given for certain property, purchased at an administrator’s sale, as the agent of another; his agency was made known to the administrator. A day or two after the..sale, the administrator called upon defendant, representing that he wanted a note for the property sold,. and desired it to be ' executed on that day. The party who had bought the property,. and a brother of defendant, who, it seems, liad, after the sale, come into the possession of the property under the purchaser, were absent. The administrator "requested defendant to execute his note for the property, and’agreed that, upon the return of his brother and the other party, he would procure their notes in the place of defendants, which should be given up to him. The administrator expressly agreed to procure notes, to be signed by the other parties, and release defendant. This he failed to do. Instead of performing his agreement, he obtained the signature of defendant’s brother to the notes given by defendant, and now seeks to enforce them against him. The answer of defendant to the petition states nearly the same matters. It contains hardly as full or as complete a defense as his evidence. No objection, however, was made to the answer in the court below, on the ground that it does not present a sufficient defense; nor was it claimed that the evidence given was not admissible under the answer. Even should it appear that the answer does not contain a defense under Eevision, section 2742, if such defense is established by the evidence it is sufficient.

We are required to determine, therefore, whether, under Eevision, section 2742, the evidence of defendant shows “ that the cause of action still justly subsists ” against him.

The testimony of defendant, it appears to us, presents a complete legal defense to the note, in the hands of the payee or a holder with notice. The evidence of defendant shows that the administrator held the notes long after they were due; the plaintiff, therefore, received them after maturity, and is chargeable with notice of the infirmities pertaining to the paper, and is subject to equities existing between the original parties thereto. Plaintiff stands, therefore, in the position of the administrator, who took the notes from defendant. Can it be pretended that, under the state of facts presented by the evidence of defendant, the administrator could recover in an action on the notes ? Certainly not. The evidence establishes a legal defense to the notes, as well as an equitable, a just, defense. The evidence of defendant thus fails to show that the cause of action still justly subsists. The case is a stronger one for defendant than Howells v. Patton, 26 Iowa, 531. The judgment of the district court must be

Affirmed.