Iowa City State Bank v. Hoefer

The opinion of the Court was delivered by Mr. Justice Hydrxck. This was an action on four negotiable promissory notes, aggregating $199.70 given by-défendant to the Royal Company of Io'wa City, Iowa, and endorsed by the payee to the plaintiff for .value before maturity, and without notice of any infirmity in the notes. These facts being shown, the Court directed a verdict for plaintiff for the full amount of the notes with interest. 1 *209 2 *208 Error is assigned in admitting two of the notes in evidence' without proof of the execution thereof by defendant. There is no merit in this contention, because the defendant admits in his answer that he gave the notes to the Royal Company, and alleges, as a defense, that they were given in payment of the purchase price of goods bought of that company, under warranty and an agreement that, if the goods were not as warranted or were not satis *209 factory, they should be returned; that they were not satisfactory or as warranted, and the seller was immediately notified of that fact, and that defendant would not pay for them, but would return them; that, thereafter, an agent of the plaintiff called upon defendant, and, after examining the goods, told him to return them to the Royal Company and there would be no further liability; that the goods were accordingly returned. There was testimony tending to prove the defense alleged, except there was no proof that plaintiff had any notice of it before it bought the notes, and there was no proof that the person who is alleged to have been the agent of plaintiff and alleged to have told defendant to return the goods to the Royal Company and there would be no further liability (though this was denied by the alleged agent), had any authority from the plaintiff to do so. The Court, therefore, correctly held that the defense was not available against the plaintiff. 3 The plaintiff, in the complaint, demanded judgment for $199.70. No claim was made for interest. Therefore, without amending the complaint, interest was not recoverable, as it was not consistent with the case made by the complaint and embraced within the issue. Straub v. Screven, 19 S. C. 445. The judgment is reversed, unless plaintiff shall remit the interest.