Wood v. Wood , 61 Iowa 256 ( 1883 )

Rothrock, J.

i certifvto?iieVsu-uoe premo court. — I. The appellee by motion seeks to strike out all of the evidence contained in the appellants’ abstract, because the certificate of the trial judge does not comply with the law. The motion will be overrtlped. The certificate states that the evidence certified to “is all the evidence offered in said trial, and as well as the evidence introduced and admitted and used in the trial * * '*

It will be seen that the certificate states, with unnecessary particularity, that the evidence certified to is all that was offered, and all that was introduced, and this is sufficient, as has been repeatedly held.

2. evidence: dmess“nfaets ing. II. The .impression made upon the mind, after reading the evidence in this case, is, that the business in which tho father and son were engaged was not profitable. At the time of the dissolution, the stock of goods was not large, and the debts were considerable. While the partnership existed, both of the partners drew their living from the business. Both had families, and the assets of the concern became less as long as the partnership continued. There is no evidence that M. E. Wood indulged in any extravagance after the dissolution. If there was evidence that he intended to take advantage of his father by withholding payment of the judgment of Phelps, Dodge & Palmer, and thus compelled plaintiff to postpone and release his mortgage, there might be some foundation for the charge that he wrongfully procured his father to release his mortgage. But there is no such evidence. Indeed, there is no' showing that M. E. Wood concealed any property or money, but, on the contrary, it is fully shown that he discharged the debts just as soon as he was able to do so. The defendant, Shaver, was surety for the partnership. It was his undoubted right to protect himself by all legal and fair means. We think there is no showing that he defrauded the plaintiff. It is urged that M. E. Wood and Shaver threatened the plaintiff that if he did not postpone and release his mortgage, Phelps, Dodge & Palmer would levy an execution upon the stock of goods. If they did so, this was no such threat as would in law avoid the act of the plaintiff. - The plaintiff, as a member of the partnership, was bound for the partnership debts. He could not set up his mortgage as against the creditors, because all the property he had subject to execution, including his mortgage, was bound lor the partnership debts. The argument that the statement that a levy would be made upon the stock was false, because the judgment was against the firm and not against the individual member thereof, and a levy could not be made upon the stock, amounts to but little in establishing fraud. Whether Phelps, Dodge & Palmer had the legal right to levy on the stock we need not determine. They had the right to subject the property to the payment of their debts, and there is no evidence in the case showing that M. E. Wood or Shaver had any knowledge upon that subject superior to the plaintiff. The fact that Shaver did not at once pay the judgment, is not a fraud upon the plaintiff. It was at most but a broken promise. But suppose he had paid it at once. He could have proceeded against the partnership and the individual members thereof at once for reimbursement. The whole trouble of the plaintiff arises from the fact that his son has been unable to pay the debt due to Phelps, Dodge & Palmer. He has not yet paid it. He owes it to Shaver, or to the defendants, C. Hardin & Sons, who have j>aid it for him. We need not dwell upon this branch of the case. It is enough to say, in conclusion, that the evidence does not show that any fraud or duress by threats was practiced upon the plaintiff, which by any rule of law or equity entitles him to relief.

3 bekgase oi fecíofai?coníeiúion!)ym~ III. When the plaintiff released his mortgage, it was only for the purpose of allowing the mortgage of Shaver to be thereto. It was not intended as a release as between the plaintiff and M. E. Wood. The court correctly held that, as between the parties to the mortgage, it was not released. And we think that the amount found to be due on plaintiff’s note and mortgage was not excessive. As there was no evidence justifying a finding that the note and mortgage should be reinstated, the decree of the circuit court will be reversed, so far as it holds the plaintiff’s mortgage to be prior to that held by C. Hardin & Sons.

Reversed.