Farrar v. Peterson

Beck, Ch. J. — I. The instrument sued upon is payable to plaintiffs, and contains a condition to the effect that it was [421] executed for the purchase of a sewing machine, the title, ownership and right of possession of which should not pass from the plaintiffs until the note is paid in full, and that plaintiffs shall have full power to declare the note due and take possession of the machine at any time they may deem themselves insecure, even before the maturity of the note. The answer of the defendant, as set out in the docket of the justice of the peace, admits the execution of the note, but avers that it was obtained by fraud; that it was given to plaintiff’s agent as evidence of the conditional sale of a sewing machine; that the sale was rescinded by plaintiffs, who took back the machine, and that the consideration of the note has wholly failed. The defendant introduced testimony tending to show that he purchased the sewing machine of one Lattimer, to whom he delivered in payment the note in suit. It was agreed between Lattimer and defendant that if defendant’s wife could not sew with it the machine was to be taken back, and tlie note was to be returned. Within tbe time agreed upon Lattimer took tbe machine away. Tie informed defendant that lie did not have the note with him, but lie gave defendant a paper which he said was “ a receipt against the note.” This proved to be a promissory note signed by Lattimer for tbe amount of defendant’s note. Tlie defendant is unable to read and write, and did not discover the character of the instrument given him by Lattimer until some time afterward. .The plaintiffs introduced testimony in conflict with the evidence of defendant. Their testimony also tended to show that Lattimer was employed to sell sewing machines by one Tallmadge, who was tbe agent of plaintiffs-for tlie sale of such machines, and that he was not authorized to make a contract and arrangement of the kind entered into by defendant with Lattimer. i. principal ratuíefition: noteUSS°ry II. The only questions raised by the assignment of errors relate to tbe correctness of certain instructions given by the court to tlie jury. It is proper here to remark that all the instructions excepted to are not assailed in the assignment of errors, and one of tlie instructions so assailed was not excepted to in the court below. Another assigned for error is not objected to in argu [422] meat. We can only consider those that were excepted to in the court below and are assailed in the assignment of errors and argument of counsel. There are but two' in this condition; to these our discussion must be limited; they are in the following language: “ If in this case plaintiffs seek to enforce payment of a note taken by Lattimer, then plaintiffs are estopped from denying the ageixev of Lattimer, unless the defendant at the time he delivered the note to Lattimer delivered the same to him as the agent of Tallmadge and not as the agent of jrlaintiffs, and he looked to Tallmadge to cany out the conditions of the sale, and he returned the machine to Tallmadge, or Lattimer as the agent of Tallmadge. “ You are further instructed that plaintiffs cannot be permitted to enjoy the fruits of the bargain made by Lattimer without adojiting all the instramen tali ties employed by him in brixxging it to a consummation, unless the defendant purchased the machine of Lattimer as the agent of Tallmadge, and believing that he was contx-acting with Lattimer as agent of Tallmadge axxd not as agent of the plaintiffs, and looked to Tallmadge and not the plaintiffs to perform the conditions of the sale.” The testimony of plaintiffs tended to show that they had employed Tallmadge to sell sewing machines, or move properly they sold the machines to him and he disposed of them, taking notes therefor payable to plaintiffs, and conditioned as the note executed by defendant. lie was credited with machines he returned, and notes of tin's kind, which he delivex-ed to plaintiffs. ’ He was axxtlxoxlzed to employ othox-s to px*osecxxte the bxisiness ixx this manner. The proposition of law presented in the insti-uetions is this: The plaintiffs, while accepting and attemptiixg- to enforce the note, cannot deny the agency of Lattimex-. This doctrino and its applicability to the facts of the case, we think, ai-e supported by the majority opinion in Eadie, Guilford & Co. v. Asbaugh, 44 Iowa, 519, which was doubtless followed by tbe coixrt below. The decision is adhered to by tbe justices concurring therein, axid must be regarded as the rule of this court. [423] Mr. Justice Day and myself have no occasion to change the views we expressed in our dissenting opinion. III. Counsel insist that plaintiffs are entitled to the protection accorded to holders of commercial paper transferred before maturity and without notice. This position is not sound. Plaintiffs are the payees, not the indorsees, of the paper. They do not deny that they authorized the note to be made payable to them; they cannot be regarded as indorsees. The other instructions, as we have above pointed out, were either not excepted to or were not assigned for error and pressed in argument by counsel. We have not the privilege, under our rules, to discuss them. No other questions arise in the case. The judgment of the Circuit Court is Affirmed.