Watters v. McGreavy

Sherwin, J. [540] 1 2 3 [539] The plaintiff sues upon five promissory notes drawn payable to his order and signed by the defendant. They all purport to have been given in 1886, except- the last, [540] which is dated February 25, 1887. The defendant has been insane for a number of years, and was so at the time of the trial below. His guardian defended, and pleaded, in substance, a co-partnership between plaintiff and his ward at the time the notes were executed, and that they were drawn payable to plaintiff, and signed by the defendant, for the convenience and use of the firm in borrowing money at the banks for firm purposes; that the plaintiff was the business and financial manager of the firm, and received all the money on the notes in question, and that none of it was ever received by the defendant for his sole use and benefit. The answer further alleges that at the time the notes sued upon were made the defendant was, and for a long’ time prior thereto had been, insane, incapable of understanding an obligation. or a contract and his rights thereunder, and was induced to sign the notes in question without having 'received any compensation therefor; all of which was known to plaintiff. The answer further alleges payment. Upon the issues thus joined the case was tried. Under the statute the plaintiff was not a competent witness “in regard to any personal transaction or communication” between himself and defendant. Numerous errors are assigned on the exclusion of plaintiff’s testimony as to personal transactions and communications with the defendant. The plaintiff was permitted to testify that he knew the handwriting of the defendant, and that the signatures to the notes were in his handwriting; but the court would not permit him to testify that he saw the defendant sign them. The notes were made payable to the order of the plaintiff, clearly indieating in themselves a personal transaction, and the testimony was properly excluded. Cole v. Marsh, 92 Iowa, 379; Martin v. Shannon, 92 Iowa, 375; Van Vechten v. Van Vechten (Sup.), 20 N. Y. Supp. 140; Holcomb v. Holcomb. 95 N. Y. 316; Kroh v. Heins, 48 Neb. 691 (67 N. W. Rep. 771). Some of the notes in suit had been executed at a bank [541] in Dubuque, drawn to the order of Watters, and by Mm indorsed, and the money paid 'thereon by the bank through- Mr. Haxrigan the cashier, who testified, as to the various transactions, that the plaintiff and the defendant were always there. together when the money was loaned by or paid to the bank. As to one transaction, Harrigan testified that he “handed the money to them,” and did not know who received and got the benefit of it. The plaintiff attempted to testify as to these various transactions, and as to whether he had received any of the money gotten from the bank on these notes, and in the same connection he was asked if he was then in partnership with the defendant. A careful examination of' the record convinces us that this testimony was properly excluded, as was also his evidence as to what the notes referred to in the books represented. If admitted, it would have allowed the plaintiff to do by indirection that which the law says may not be done. See- cas'es supra. 4 There was no error in rejecting the ex parte statement of Blenkison. He was the agent of Watters, and his written report to him was not competent. But we cannot notice in detail more of the exceptions to evidence. It is enough to say that we find no error in the admission or rejection thereof. 5 Plaintiff’s motion to direct a verdict for him was rightly overruled. It is undoubtedly a correct rule of law that the giving of a note under certain circumstances raises a legal presumption that all matters between parties' were settled up to that time. But this presumption does not arise in all cases. In this case it was admitted that the plaintiff and defendant had been in partnership for some years prior to December 31, 1884. There was no direct testimony that this partnership had been dissolved, or that business thereunder had ceased. When a partnership is once shown to exist, the law also presumes that it continues [542] until a dissolution is sbo<wn. The transactions of plaintiff and defendant at the hanks were evidence tending to show that the notes there signed by the defendant and there indorsed by the plaintiff were for the use of the partnership, if one existed a.t the time; and .this evidence might be considered by the jury sufficient to overcome any presumption of the law as to a complete prior settlement. Furthermore, these transactions themselves negative the claim made for them by the plaintiff. We find no prejudicial error In the instructions given to the jury. They fairly and clearly stated the issues and the law which should govern the jury in its determination of the case from the evidence before it. The rule governing executed contracts with an insane person contended for by the plaintiff is the correct rule of law, and was given substantially as asked. Behrens v. McKenzie, 23 Iowa, 333; Warfield v. Warfield, 76 Iowa, 635. We think the case was tried and submitted without prejudicial error, and that the verdict finds sufficient support in. the evidence. It is therefore aeeirmed.