Citation Numbers: 190 Iowa 1254
Judges: Arthur, Ladd, Stevens, Weaver
Filed Date: 10/26/1920
Status: Precedential
Modified Date: 7/24/2022
The defendants, among other defenses urged, pleaded an estoppel, based upon the failure and neglect of plaintiff to inform them that Clifford had defaulted in the payment of the notes, or to demand payment thereof until long after Clifford had become insolvent. They alleged in their answer that they understood and believed that they were released from liability on the notes, and, relying thereon, refrained from collecting the amount due from Clifford, or otherwise proceeding against him; that this was known to plaintiff; and that, by the failure of plaintiff to give them timely notice of Clifford’s default, they are, by reason of Clifford’s insolvency, unable to protect themselves against loss.
It is contended by counsel for appellants that the court, in the fifth paragraph of its charge to the jury, erroneously and to their prejudice stated their plea of estoppel. The court charged the jury that defendants claimed that, at the time of the arrangement with Clifford to assume payment of the notes, he was solvent and able to pay the same; that plaintiff was informed and knew of the arrangement between defendants and Clifford, and assented thereto; that defendants relied thereon-, and gave no further thought or attention to the matter; that plaintiff neglected and failed to try to collect said notes from Clifford, but.permitted the same to become long overdue; that said Clifford afterwards became insolvent, and that neither the defendants nor plaintiff are able to collect said notes from him or his estate; and that, by his conduct in agreeing to look to Clifford for payment of said notes, and by failing to collect them from
It will be observed that the estoppel pleaded is not based upon the neglect or failure of plaintiff to try to collect the notes from Clifford, but upon his failure to present the notes to defendants for payment, or to advise them of Clifford’s default until after he became insolvent. The evidence was undisputed that plaintiff sought to collect the notes from Clifford. Evidence showing his efforts to do so was introduced on behalf of defendants, for the purpose of lending' support to their claim ’ that plaintiff assented to the arrangement between them. Defendants maintain that, if they had been given timely notice of the failure of Clifford to pay the notes, they could have proceeded against him, and either enforced payment or recovered the property which formed the consideration for the notes.
It is apparent that the instruction did not correctly state defendants’ plea of estoppel, and we cannot say that it was without prejudice. As stated, it was conceded and claimed by defendants that plaintiff sought to collect the notes from Clifford, in accordance with the arrangement pleaded, but that he did not inform them of the nonpayment thereof until some time in 1917. Defendants were entitled to have the theory of estoppel plea submitted to the jury; and the instruction of the court, failing to do this, was erroneous and prejudicial.
III. One paragraph of the court’s charge stated the exemptions to which plaintiff was entitled. Complaint is made of