Ross v. Kirkwold , 123 Iowa 668 ( 1904 )

Si-ierwin, J,

This suit was brought to recover on two notes — one for $600, executed by the defendant Kirkwold alone on the 21st day of March, 1896; and the other for $1,500, executed by the same defendant, The Helena Ironworks, and W. S. James on the 8th day of May of the same year. It is claimed by the appellee that the defendant pledged a gold watch and a life insurance policy as security for the payment of both notes. On the same day that the Erst note was executed the defendant made a written assignment of the insurance policy to the plaintiff’s intestate, in which it was recited that it was made to secure a loan of $600, no reference being made therein to any note. The appellant admits that the watch and policy were pledged as security for the payment of the $600 note, but alleges that it has been fully paid, and denies that either was pledged as security for the payment of the larger note. The principal question in the case is whether the property in question was pledged for the payment of both notes. If it was, there can be but little doubt as to the right of the plaintiff, to recover the amount adjudged due on the notes by the trial court. Knowledge of the financial transactions between Thomas P-Bowman and the defendant Kirkwold seems to have been confined entirely to themselves, and, as the lips of the former have been forever sealed by death, and those of the latter are practically sealed by the statute, it is difficult to reach an entirely satisfactory conclusion on the facts. Eliminating from our consideration, however, the incompetent evidence in the record, we reach the conclusion that it was agreed between the parties that the property in question should stand as security for both of the notes in suit. The letter written by Mr. Bowman on the 15th day of May, 1899,.offered by the appellant, refers, it is true, to a note of $1,000, but no such note was found among his effects after his death, and it is evident that the reference was in fact to the Helena Ironworks note, signed by the defendant Kirkwold, though the amount thereof was wrongly stated. Such seems to have been the understanding of the defendant, for he refers to the Helena Ironworks note in his letter of September 23, 1899, to Mr. Bowman. But, whether this be correct or otherwise, it can make no difference with our conclusion in the case, or with the appellant’s rights. The trial court based its judgment upon the statement of debits and credits contained in Bowman’s letter of May 15th, and allowed nothing more. On the theory that the collaterals were pledged for the payment of both of the notes in suit, this finding was as favorable to the appellant as the competent evidence warranted, and, as the plaintiff has not appealed, he is bound thereby. Coil-ceding, for the purposes of this case, that the letter of. May 15th was competent evidence for the appellant, it is clear that its introduction did not remove the bar of the statute, so that he might testify as to the transactions therein referred to. It was not put in evidence by tbe administrator, and the appellant, by his own act, could not make himself a competent witness under section 4604 of the Code. Qur conclusion on this branch of the case makes it unnecessary to consider the question of the application of payments, and we give it no further attention.

The judgment is just and right, and it is affirmed.