Porter v. Walker , 1 Iowa 456 ( 1855 )

Wright, C. J.

What the entire testimony in this case was, we are not advised by the record. How far that testimony may have influenced the giving, and the refusing to give the instruction, we cannot tell. It is evident, however, that this order was sought to be -used by defendant, for the purpose of proving payment to that amount on plaintiff’s claim. Now, without anything to show us what the proof was, as to the indebtedness, from Porter to Warrens — whether that had, or had not been paid; without any evidence -that Warrens ever knew, or acted upon the order, so as to show that they consented to the .arrangement; but, on the-contrary, when the record negatives such knowledge, and when it is pretty clearly shown, that Walker merely said he would pay the order, and put it in his pocket, and there kept it, until tbe trial, we are asked to say, that tbe defendant should have been allowed a payment to tbe amount of tbe order on plaintiffs claim. Some very nice and difficult questions have arisen for tbe adjudication of courts, on cases of a similar character to tbe one before us. As, for instance, whether tbe Warrens could bold Walker liable on this promise, not being present or assenting thereto, independent of any proof of Porter’s insolvency; or whether Porter could revoke- tbe authority given to Walker, to pay this amount, either before or after notice to the Warrens; or whether, granting that the Warrens could maintain an action, on such promise, Porter would also, by virtue of such right, be barred from claiming and suing for the money, before the Warrens had knowledge of the order ? And did any or all of these questions legitimately arise on the record before us, this court would, perhaps, not be unanimous. That the' instruction given by the court, was correct, we have no doubt; and the only question, therefore, is, whether the court erred, in refusing the instruction asked by the plaintiff? We cannot say'that it did. It is an abstract proposition, that the execution of the order, and acceptance by the payee, would prevent plaintiff’s recovery to that amount. When it is admitted, that the Warrens had no knowledge of it, and that it had not been paid; and "when we take into further consideration, the further fact, that other testimony, besides this, may have been before the court, to fully justify the refusal, it would be unsafe to defeat the plaintiff’s recovery, by .the application of an abstract proposition, the entire pertinency of which, we have no means of knowing. Porter may have paid the debt he owed the Warrens; Walker may, subsequently to obtaining the order, have agreed to treat it as revoked; and indeed, in many ways, we can see that the abstract proposition would have been correctly refused: and yet there may have been a state of proof, to fully sustain the modification. There is no claim of payment' in the answer; and, indeed, how, or in what manner, the issues presented, were tried, 'is left confused and indefinite. Under tbe circumstances developed in tbis record, we cannot disturb tbe judgment.

Judgment affirmed.