Delaware County Bank v. Duncombe

Day, I. 1. pleabots: demurrer. I. The answer of defendant contains but one count, divided into nine paragraphs. The demurrer does not assail the answer as a,whole, but presents objections to the paragraphs, treating them as distinct counts, and is based upon the notion that each should contain a defense to plaintiff’s cause of action. It is not competent thus to assail the paragraphs of an answer by demurrer. Hayden v. Anderson, 17 Iowa, 158. For this reason the demurrer was properly overruled. — 493 — 2. practice: opening and closing II. The action of the court in allowing the defendant the opening and close of the case is assigned as error. While the answer does not admit, in terms, the allegations of the petition, yet it is apparent that, upon the principal and material issues in the case, the burden of proof is upon the defendant. We cannot say that the action of the court in this regard is so improper or prejudicial to plaintiff as to require a new trial. It has been held that the action of the court in refusing to allow a defendant the opening and closing cannot be assigned as error, nor made the basis of an appeal. Goodpaster v. Voris, 8 Iowa, 339. 3 fraudulent representations tract. III. Many errors are assigned upon the rulings respecting the testimony. To dispose of them, even briefly, will occupy mtlok space. The defendant was asked to state the particulars of the contract between the railroad company and J. A. Ingersoll. The plaintiff objected. The objection was overruled. In this there was no error. Denton & Co. were sub-contractors under Ingersoll. It became a very material question upon the trial of the case whether certain unfinished portions of the work, including the long, deep slough referred to, and the station at the crossing of Cedar creek, were embraced in the contract of S. Denton & Co. Upon this question there is a direct conflict of evidence. It certainly has some bearing upon this question to show what was embraced in Ingersoll’s contract, and what price she was to receive. Prom this the jury might determine whether it would be reasonable that Ingersoll would let the cheaper portion of the work at eleven cents per yard, leaving all the difficult parts for another contract, as claimed by S. Denton & Co. This view disposes of several of the objections made to the testimony of the defendant. IY. Defendant was asked how much he advanced under the Ingersoll contract. The plaintiff’s objection to this question was.overruled. The defendant answered that he could not’ tell how much he advanced, but that it was a considerable — 494 — amount. We cannot see wherein the plaintiff could be prejudiced by this answer. Y. The defendant, having spoken as a witness of the contract of S. Denton & Co. with Ingersoll, said: “I knew nothing of the contract personally, as I was not present when it was made. ” Plaintiff moved to strike out all that defendant said respecting the Denton contract, for the reason that he states he did not learn the terms of that contract from S. Denton & Co., or from the plaintiff in this suit. The motion was overruled. The abstract does not show the existence of the fact assigned as an objection. Defendant does not say that he did not learn the terms of the contract from S. Denton & Co. He says: “S. Denton & Co. had the contract for four sections of the road, commencing about four miles this side of Sac City, including all the work from that point through the depot grounds, and, perhaps, a hundred or two hundred feet beyond. I do not remember the exact amount, as I learned from the parties.” The parties are Ingersoll and S. Denton & Co. 4. —:-. YI. The defendant was asked what officer or agent of the company used any authority to accept or approve of the final completion of the work. This was objected to as incompetent or immaterial, unless it can be shown that it was disclosed to S. Denton & Co. before they made their contract. The objection was overruled, and the witness answered, “No one but myself.” This testimony may not be very important, and perhaps there would have been no substantial prejudice in rejecting it; still, in view of the fact that defendant claims he was induced by fraudulent representations to accept the draft, we think it is not improper to show the relation in which he stood to the company and to the contract. Evidence of .such fact supplies a part of the history of the case, valuable, at least, if not necessary to a full comprehension of the case. We are satisfied that no substantial prejudice could have resulted from the admission of this testimony. — 495 — 5.-.-. YII. The defendant was permitted to testify to a conversation he had with Phelps, the engineer in charge of the work, at the time the draft in suit was accepted. The draft was presented by Phelps to the defendant for ■acceptance, and the conversation detailed related to the acceptance, and was in substance that it was for S. Denton & Co.’s final estimate; that the matter was settled, and was all right. The defendant charges a combination between S. Denton & Co. and Phelps, the engineer, to deceive and defraud him, and it cannot be denied that there is evidence tending to support the charge. Under the is-sue it was not error to admit proof of what Phelps did about procuring the settlement. 'This view disposes of the error assigned upon overruling the objection to the testimony of Eiehards, and the cross-examination of Phelps. YIII. It is insisted that the court erred in allowing defendant to testify as to what would be the relative cost of completing the work, to that already done. It is alleged that the fraud consisted in doing the cheaper portion of the work, and representing that it was all done. The relative cost of that completed and that undone bore directly upon this issue, and was properly shown. IS, The plaintiff moved to suppress twenty-three answers or parts of answers in the deposition of D. A. Ingersoll, which motion was overruled. Upon this action of the court fifteen distinct assignments of error are based. No argument is made upon these assignments, exeept that plaintiff insists that the court erred in overruling his motion to suppress portions of the depositions of D. A. Ingersoll, and asks a careful reading of this portion- of the evidence, satisfied this court will have no difficulty in finding error sufficient to demand the reversal of the judgment. It is no part of the duty of this court to hunt after errors for the reversal of a case. Unless prejudicial error affirmatively appears, causes should be affirmed. Assignments of error presented in so general a way-should be regarded as unargued, and hence as waived. This — 496 — view also disposes of the assignments of error based upon the overruling of objections to the testimony of W. H. Seeds. We think, however, that it could readily be shown that in these respective rulings there is no substantial error. These views are also applicable to the testimony of the witnesses Colburn and Simmons. 6. —-. X. One 1ST. B. Everts, a civil engineer, was introduced by defendant and testified as. to measurements which he made in July, 1874, of the work done by Denton & Co. The plaintiff objected that this testimony was incompetent and immaterial, because the measurements were made nearly eight months after the draft was drawn. This fact might affect the value of the evidence, but not its competency and materiality. 7_. draft dishonor of. XI. W. PI. Seeds, cashier of the Delaware County Bank, testified as follows: “The way said bank became possessed of said draft is this: At the time of taking said draft the firm of S. Denton & Co., composed of S. Denton and Alexander Bently, were engaged in the business of buying and shipping grain from Masonville to Chicago, and had been for some time. They did their banking business with said Delaware County Bank. The bank was unwilling to do their business, and advance to said .firm money, without collateral security. Hence the draft was turned over to them by said firm, and accepted by said bank for advances to be made to said firm. At about the 31st day of December, 1873, the style of said firm changed to Bently & Co., a company composed of Alexander Bently and Samuel Denton, the same parties composing the firm of S. Denton & Co., to whom said bank continued to advance money upon said draft until the 27th day of May, 1874. Said bank had advanced upon said draft at the 27th day of May, 1874, the sum of eleven hundred and sixty-nine dollars and ninety-two cents, for which the bank had no other security, nor have at this time. ” There is no other testimony at all in conflict with this evidence. The evidence further shows the following facts:. — 497 — The bank became possessed of the draft on the 11th day of December, 1873. The books of the bank show a balance in' favor of S. Deñton & Co., on the 22d day of December, 1873, of one dollar and nine cents. On the 31st day of December, 1873, an account was opened with Bently & Co. On the 7th day of January, 1874, there was a balance in favor of Bently & Co. of eleven dollars and ninety cents. On the 8th day of January, 1874, the account was overdrawn, for the first time, to the extent of three hundred and seventy-eight dollars and eighty-five cents. On the 5th day of February, 1874, Bently & Co. were indebted to the bank one hundred and seventy-two dollars and eighty-eight. cents. On that day they drew upon check five hundred dollars, and continued to draw out until March 29, 1874, when the account stood against them one thousand one hundred and sixty-nine dollars and ninety-two cents. During this time their dealings with the bank amounted to thirteen thousand four hundred and seventy-three dollars and seventy-seven cents. Neither S. Denton & Co. nor Bently & Co. have any credit upon the books of the bank for the draft in suit. • The articles of incorporation of plaintiff contain the following provision: “If any bill or note belonging to the bank shall not be paid before three o’clock p. m. on the last day of grace, such bill or note shall be forthwith protested, and, while such bill or note remain unpaid, no discount or accommodation shall be granted to any drawer, acceptor or indorser of the same.” In the latter part of November, or the first part of December, 1873, the draft in question was sent to the First National Bank of Fort Dodge for collection, with orders not to protest, but to return if not paid. The defendant was notified by the First National Bank that they held tlse note for collection, and he refused to pay it. On the 9th day of January, 1874, plaintiff directed the cashier of the First National Bank of Fort Dodge as follows: “Please present the accepted draft to Mr. Duncombe for payment once more, and if not paid within five days please give — 498 — the same to Mr. Hawley, attorney at law, for collection, and have it collected as soon as possible.” Mr. Hawley received the draft for collection about the 13th day of January, 1874, but suit was not commenced until the 20th day of December, 1875. The draft, as we have seen, was payable on the 20th day of December, 1873. No advancement was made by the plaintiff to Bently & Co., on the faith of this draft, before the 8th day of January, 1874. The draft was then dishonored paper. The First National Bank of Fort Dodge, as agent of plaintiff for the collection of the note, and while engaged in the business of their agency, were informed by Duncombe that he would not pay the draft, and that it was a swindle. The knowledge of the agent thus acquired was the knowledge of the plaintiffs, the principals; so that the plaintiffs made the first advancements upon this draft after it was dishonored, and after they were affected with notice that the acceptor refused to pay it. Not only so, but they made the advancement in violation of the provisions of their articles of incorporation, which provide no discount or accommodation shall be granted any indorser of a bill belonging to the bank, not paid before 3 o’clock p. m. of the last day of grace. If plaintiffs had bought the draft on the 8th day of January, 1874, they would hold it as dishonored paper, subject to all the equities growing out of the transaction existing between the acceptor and the payee. It cannot be claimed that the undisputed facts of this case place the plaintiffs in any better position. Upon this branch of the case the court instructed the jury as follows: “The draft or acceptance having been assigned or indorsed to the plaintiff as collateral security for money to be advanced to Denton & Co., and the money having been repaid, except the advances which were made after the maturity of the acceptance, I direct you that any defense which has been sustained against it in the hands of Denton & Co. will be equally good against it in the hands of plaintiff. ” As applied to the established facts of this case, this instruction, we think, is correct. The foregoing view also disposes — 499 — of the alleged error in refusing to give the first instruction asked by the plaintiff. 8..--:principal agent. XII. The plaintiff insists that the court erred in refusing to give the third instruction asked, as follows: “If the jury find from the evidence that S. Den-ton & Co. did work on the railroad in question for Ingersoll & Phelps, or Ingersoll, and that in settlement for said work Ingersoll, or Ingersoll & Phelps, agreed to give them a draft accepted by defendant, and, in carrying out said agreement, Phelps drew the draft in suit, and presented it to the defendant, who accepted it, after which Phelps delivered it, so accepted, to S. Denton & Co., then Phelps, in so drawing said draft, and presenting it to defendant for acceptance, was not an agent for Denton & Co. for that purpose.” The court gave the following instruction: “5. In order to make available the defense of false representations, it will be necessary for the defendant to show, not only that the acceptance was obtained by false representations made by Phelps, but that Denton & Co., or one of them, knew it had been so obtained. In other words, the fact that Phelps obtained the acceptance of the draft, not being the agent of Denton & Co., will not of itself be evidence that Denton & Co. knew of the representations, if any were made; but you may consider the relations of the parties, Denton & Co. and Phelps, with all the evidence tending to show what actual knowledge Denton & Co. had of the manner of procuring the acceptance, and determine the question of their knowledge as shall appear from the preponderance of the evidence.” This instruction is based upon the theory that Phelps was not the agent of Denton & Co., for, if he was their agent, his knowledge and acts would be theirs, and it would not be necessary to prove that they knew that the acceptance was obtained by false representations. In view of the instruction given, there was no error in refusing that asked. For the same reason there was no prejudicial error in refusing to give the fourth instruction asked. — 500 — XIII. The plaintiff assigns as error the refusal of the court to give the fifth instruction asked, which is as follows: “The plaintiff having sent the draft in suit to the First National Bank of Fort Dodge for collection, this did not constitute the First National Bank of Fort Dodge agents for plaintiff, so that knowledge of the infirmities in this draft, communicated to the First National Bank, would be knowledge of the same to the plaintiff. ” This point has been anticipated to some extent. The First National Bank of Fort Dodge was the agent of plaintiff for the collection of the draft. Whatever knowledge the bank acquired respecting the draft was obtained from the defendant when they were actively engaged about the collection of the draft, and was naturally elicited by such efforts. The knowledge of the agent, thus obtained, is the knowledge of the principal. The principle of the sixth instruction' asked' is embraced in and covered by. the eighth instruction given. XIV. Plaintiff objects to so much of the fifth instruction given by the court, and set out above, as is contained in the following language: “With all the evidence tending to show what actual knowledge Denton & Co. had.” It is claimed there is no evidence in the case justifying this language. It is true no witness directly testified that Denton & Co. had knowledge of the circumstances under which the draft was procured, and yet we feel satisfied that the evidence does tend to show that Denton & Co. had such knowledge. XV. Appellant complains of the giving of the sixth instruction, as follows: “If Phelps, in order to procure the acceptance, stated to the defendant that Denton & Co.’s contract had been completed, and that the money was in the treasury of the county to pay the draft from the tax voted in aid of the construction, and the defendant believed the same, and did not know to the contrary, and, relying upon the statements so made, accepted the draft, and you find that the statements were untrue, and that Denton & Co. took the draft with knowledge that its acceptance had been obtained upon such — 501 — statements, and that they were untrue, your verdict will be for the defendant.” It is claimed that this instruction is so worded as to convey to the mind of the jury that the court intended to charge them, as a matter of fact, that the defendant, in accepting the draft, relied upon the statements made by Phelps. It is apparent, from a reading of the instruction, that this criticism is not well grounded. It is further claimed that there is no proof that the money was not in the county treasury to pay the draft. It is true there is no direct proof of this fact, but it may, we think, be inferred from the fact that S. Denton & Co., as Samuel Denton testifies, would not agree to accept a draft upon Duncombe unless he would accept it personally. We discover in the whole record no error justifying a reversal of the case. Affirmed.