Williams v. Brown , 45 Iowa 102 ( 1876 )

Rothrock, J.

I. On the trial of the ease the plaintiffs having the note in their possession introduced it in evidence and rested. In order to defeat recovery thereon, the defendants sought to establish, first, that the note was in fact the property of Roup, the payee, and second, to show by the testimony of appellants that it was paid to Williams in his lifetime. If the evidence was not sufficient to establish the first proposition, the second could not be shown by the testimony of the defendants. Code, Sec. 3639. It is conceded that such testimony would be in the nature of a personal transaction between the witnesses and the deceased.

i. evidence: SS, After the evidence as to the ownership of the note was introduced, defendants offered to show by the evidence of Brown, one of the defendants, that the amount. due on the note was paid to Williams in his lifetime. Objection was made to this evidence, which was sustained, and the defendants assign this ruling of the court as error.

We do not concur in the proposition of appellants’ counsel, that it was sufficient for defendants to make merely a prima facie showing that Williams was the agent of Roup in loaning the money, and that the note in question was in fact the property of the latter, in order to allow Brown to testify that it was paid to Williams. This proposition might be correct if the case had been tried by a jury. It would have been the province of the jury to determine both questions, and the court could not know in advance how the question of agency and ownership would be determined, and might very properly have allowed the payment to Williams to be shown.

But, as the trial was to the court, unless the finding as to the agency and ownership is so manifestly against the evidence as to demand a reversal on this ground, there was no error in excluding the evidence of Brown.

We have each carefully examined the evidence on this question, and while we may say we are of opinion that as it appears to us the finding might well have been otherwise, yet, under the rule well established here, we cannot interfere. We must treat the finding the same as though it were the special verdict of a jury on that question.

It is unnecessary to detail the evidence here.

Affirmed.