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The answer admits the making and acceptance of the draft, and the allegations in regard to plaintiff's corporate capacity, but denies generally all other averments of the petition. It also pleads as a defence the discharge of liability of defendants, by an instrument of writing executed by plaintiff to Valleau. This count of the answer demands no further reference, as the matter pleaded therein will not be considered in this opinion. We will proceed to determine whether, upon the pleadings and evidence, plaintiff is entitled to relief as against the defendants Day Brothers.

2. If the draft be regarded as an assignment pro tanto of the debt held by Day Brothers against Vallean, it did not, as the law then stood, carry with it the mechanic's lien in the absence of an express assignment of the lien itself. See Scott v. Ward, 4 G. Greene, 112; chapter 4, Acts Fifteenth General Assembly. Plaintiff, therefore, as the assignee of defendants' claim against Vallean, did not hold a lien upon the elevator.

3. It appears from the relief sought in the petition that plaintiff does not base its claim to the lien, or the right thereto, upon the assignment of the debt alone. It asks in the petition that defendants be compelled to assign the lien to them. If the lien passed by the transfer of the debt this relief would not be necessary. It asks the relief either upon the ground of the representations made by defendants to the effect that they held the lien, or upon the ground that defendants entered into an agreement to assign it. It cannot, we think, be claimed that representations of the kind indicated would bind defendants to transfer the lien. The statement that defendants held a lien to secure the claim, without more, would neither create an assignment thereof nor a contract to assign it. This conclusion requires no support from authorities; its simple statement demands assent.

4. We will next inquire whether a contract between the parties exists which equity will specifically enforce. We are of the opinion, in the first place, that the evidence fails to establish a contract for the assignment of the lien. The cashier of plaintiff testifies as follows: "About the time of the negotiation of the draft, John Day, of Day Brothers, told me that they were furnishing lumber for the Cresco elevator; that they would make a draft on Vallean for about $500, which would be secured by mechanic's lien, on the Cresco elevator, He asked if the bank would discount the paper, and was informed that the bank would. He said he could

not make the draft until he got the bills of lumber that they had furnished, and afterwards he came in, repeated the statement that the draft was secured by mechanic's lien on the Cresco elevator, and drew the draft on the strength of the representations. The bank took the draft and paid them the proceeds."

The president of the plaintiff gives the following testimony upon the same point: "I was also present when John Day negotiated the draft in suit. He said it was for lumber furnished Vallean for the Cresco elevator, and we would be secured by a mechanic's lien upon the elevator, which he would assign to us if necessary. After Vallean's failure I asked Mr. Day if it was necessary for us to take any steps to protect ourselves on the mechanic's lien. He said no, as they had more liens and they would take the whole thing together and assign us our portion. He afterwards told me that they had taken the legal steps to enforce their lien, and that this draft was included. It was on the strength of this that we extended time, and also that we had the draft described as we did in the contract.

There is nothing in this testimony which authorizes us to find that a contract for the assignment was entered into by the parties. No other evidence bearing upon the point was offered by plaintiff. One of the defendants, in his testimony, substantially admits that he represented they had a right to a lien, and if necessary would take it; but he states that neither of the officers of plaintiff ever asked him to assign the lien to the bank. We conclude that plaintiff has failed to establish a contract for the assignment of the lien.

5. There are other difficulties in the way of granting relief to plaintiff by decreeing the performance of a contract to assign the lien. A contract relating to subjects of the character of the obligation sought to be enforced in this action, when the breach thereof may be compensated in damages, will not be specifically enforced in chancery. This is a familiar rule. Plaintiff may recover, in an action at law, full compensation for the loss it has sustained under the contract, if, indeed, a contract exists. A contract must be material, clearly expressed in its terms, and established to the satisfaction of the chancellor, to authorize a decree for its specific performance. There is not a word of evidence tending to show that plaintiff agreed to accept the assignment and enforce the lien. The terms of the agreement are surely not definitely shown, and it certainly cannot be said that the testimony satisfac-

torily established the contract. We conclude that the case does not authorize the exercise of equity powers by decreeing a specific performance of a contract to assign the mechanic's lien.

6. We come now to the consideration of the claim for a personal judgment against defendants. There is not one word of testimony tending to show that the draft was at maturity presented for payment, which was refused, and notice thereof given to defendants. The evidence, too, fails to show that demand and notice of non-payment were waived. Plaintiff claims that defendants' declaration after the maturity o the paper, to the effect that they had taken steps to enforce their lien which covered the draft, does not tend to establish a waiver of demand and notice. The declaration is entirely consistent with the claim of defendants that they were discharged because notice of non-payment was not given. The lien would secure the indebtedness of Vallean upon the draft, though defendants were discharged from liability as drawers.

7. Plaintiff insists that the allegations of the petition to the effect that the draft was protested for non-payment, is not denied in the answer. The position is not correct. A count of the answer denies generally all allegations of the petition not admitted. The allegation in question was not admitted; it is therefore denied:

The foregoing discussion disposes of all questions arising in the case.

Affirmed.

A. T. AVERILL, Appellee, vs. SYLVESTER BOYLES and another

Appellees.

Filed December 13, 1879.

Circumstances under which the promissory note involved in this case was given considered, and held that, between the original parties the same was fraudulent and could not be enforced. The only verification to the answers to certain interrogatories attached to defendants' answer, to be answered by plaintiff, was "subscribed and sworn to this seventh day of January, 1879. Witness my hand and notarial seal. Mason P. Mills, Notary Public." Held, insufficient under section 2698 of the Code. Where a note is shown to be fraudulent as between the original parties, an indorsee therof cannot recover unless he show that he is a bona fide holder for value before maturity.-[ED.

Appeal from the superior court of the city of Cedar Rapids. The plaintiff claims of the defendants the amount of a promissory note executed by the defendants, to the "Treasurer of the National Iron Fence Company, of Cedar Rapids, Iowa,

or order," for $100, dated, October 12, 1878, payable 12 months after date, with reasonable attorney fees if suit be instituted, and indorsed as follows: "National Iron Fence Company, of Cedar Rapids, Iowa, by T. J. Higgins, Secretary." The petition alleges that the payee of the note is a corporation organized under the laws of the state of Iowa, and that the note was duly transferred to plaintiff before maturity by the indorsement above set out. The defendants filed a very voluminous sworn answer, denying the execution of the note, and of the indorsement thereof to the plaintiff, and that the plaintiff is the owner of the note.

By way both of defence, and as an equitable counter-claim, the defendants set up with great prolixity the alleged fraudulent circumstances under which the note was executed, and asked that it be cancelled by order of the court. The defendants annexed to this answer numerous interrogatories to be answered by the plaintiff. Upon the filing of the plaintiff's answers to these interrogatories, the defendants asked leave to withdraw their interrogatories, and to suppress the plaintiff's answers filed thereto, upon the following grounds: "First, They are not verified as required by section 2698 of the Code of 1873; and, second, they are sworn to before Mason P. Mills, the attorney of plaintiff.”

The court overruled this motion and the defendants excepted. The cause was tried by the court and a finding of facts submitted, whereon the court found, as a conclusion of law, that there was no fraud in law in the inception of said note. The court rendered judgment against the defendants for the amount of the note and $25 attorney fees. The defendants appeal.

Williams & McMillen, for appellants.

Mills & Keeler, for appellees.

DAY, J.-1. We think that the note was procured under such circumstances of fraud as would render it incapable of enforcement between the original parties. The evidence shows that the parties who took the note represented to the defendant that the National Iron Fence Company was the only party that manufactured steel barbed wire and had the exclusive right to sell it, and that they would furnish the defendant wire for sale, giving him the exclusive control of Monroe township, in Mahaska county. The note was executed for stock in the company. At the time of taking the notes the following contract was executed and delivered to the defendant: "That the party of the first part hereby ap

points the said Sylvester Boyles their sole agent in the township of Monroe, county of Mahaska, state of Iowa, to sell their iron post and barbed wire fence; to receive for said service 10 per cent. for all wire fence or wire sold at retail prices, whether iron or wooden posts, and 25 per cent. of the notes taken for memberships, not to exceed five in number. One-half commissions due party of the second part shall be retained by the company to apply on a note of $100, of even date herewith, (given for stock in said National Iron Fence Company,) until said note shall be liquidated, provided they shall reach that amount, after which all commissions to be paid in cash, and to be settled in full annually.

The inducement to execute the note and take $100 stock was that the company was engaged in the manufacture of steel barbed wire, and was the only party that manufactured such wire. The note also was to be paid out of the defendants' commissions on the sale of wire to be furnished him by the company. The evidence shows that the company never manufactured any wire, and had no facilities for manufacturing wire, and that they never furnished any to the defendants for sale. It is It is clear, we think, that the note between the original parties could not be enforced, and that the court erred in holding there was no fraud in the inception of the note.

2. The defendants attached to their answer certain interrogatories to be answered by the plaintiff. The only verification to these answers is as follows: "Subscribed and sworn to before me this seventh day of January, A. D. 1879. Witness my hand and notarial seal. Mason P. Mills, Notary Public." The defendants moved to strike out the answers because not verified as required by section 2698 of the Code of 1873. This motion was overruled and the defendants excepted.

Section 2698 of the Code provides: "The answer to the interrogatories shall be verified by the affidavit of the party answering, to the effect that the statements in them made of his own personal knowledge are true, and those made from the information of others he believes to be true." An affidavit is a declaration in writing, made by a party, and sworn to before some person authorized to administer an oath. No affidavit whatever is attached to these interrogatories. There is nothing but the signature of the notary that the answers. were subscribed and sworn to before him. Whether the party swore that the answers were true, or true as he believed,

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