Appeal from district court, Palo Alto County; GEORGE H. CARR, Judge.

Action, aided by attachment, to recover upon a promissory note executed by plaintiff with, and as security for, the defendant firm, Beck with & De Groat, which note plaintiff paid after maturity. Plaintiff asked attachment and judgment against the partnership of Beck with & De Groat, and the individual members thereof, M. J. Beckwith and Z. De Groat. Deendants admitted they were a partnership, and their liability on the note, and alleged, by way of counter-claim, that the attachment was wrongfully and maliciously sued out and levied upon their property to their damage, which they ask to recover. Plaintiff in reply denies that the attachment was wrongfully or maliciously sued out, and denies that defendants were damaged thereby. The case was tried to a jury, and certain special findings, with a general verdict in favor of the plaintiff for one dollar, returned. Plaintiff's motion for new trial being overruled, he appeals. McCarty & Linderman, for appellant. Parker & Richardson and E. B. Kelley, for appellees.

GIVEN, J. 1. One of the grounds upon which the attachment was sued out was “that the defendants are about to remove permanently out of the county, and have property therein not exempt from execution, and that they refuse to pay or secure the plaintiff." The court instructed the jury that, as neither Beckwith nor De Groat was a resident of the county at the time the attachment was sued out, and as the plaintiff made no demand upon defendants for payment or security after he took up the note, and before the commencement of this action, said ground for the attachment was unauthorized," and the plaintiff had no right to an attachment upon this ground." The theory of this instruction is that J. M. Beck with and Z. De Groat were the only parties defendant to the action; and, as neither resided in the county, there could be no removal out of the county such as to entitle the plaintiff to an attachment on that ground. Under the law, that partnership was a legal entity. It might sue and be sued, and, for many purposes, was as distinct from the persons composing it as they were from each other. The right to sue the partnership as such is not questioned, nor is the Jurisdiction of the court wherein the action was brought. If the partnership may be sued, it must have a residence,-a place where it can be sued. It appears without

conflict that this partnership was engaged in the business of buying, baling, and shipping hay for sale; that its only place of business was at Ruthven, in Palo Alto county; and that the note in suit was executed and payable at Ruthven, in connection with said business. It is provided in the statute that," when a corporation, company, or individual has an office or agency in any county for the transaction of business, any suits growing out of or connected with the business of that office or agency may be brought in the county where such office or agency is located." Code, § 2585. In Fitzgerald v. Grimmell, 64 Iowa, 261, 20 N. W. Rep. 179, wherein this section was under notice, it is said: "A partnership is a legal entity, known to and recognized by the law; and for jurisdictional purposes it may be considered as having a residence in every county in which it does business, though neither partner resides in such county.' To hold otherwise would give to partnerships an immunity from attachments that is not accorded to natural persons.

We think this partnership is shown to have been a resident of the county of Palo Alto, in the sense in which partnerships may acquire residence, at the time the attachment was sued out, and therefore could have removed permanently out of the county so as to entitle its creditors to attachment against its property. One of the requisites of this ground for attachment is that the party removing "out of the county has property therein not exempt from execution, and that they refuse to pay or secure the plaintiff." According to the instruction, the plaintiff was not entitled to an attachment on this ground, because he had not demanded payment or security after he paid the note to the bank, and before he commenced this action. True, there was no money due to the plaintiff until he paid the note to the bank, but he had urged and demanded of the defendants that the note be paid or secured to the bank, so as to release him. This demand was refused, not only positively, but in very offensive terms, by one member of the firm, and with silence by the other. There was no reason why they should pay or secure the plaintiff any more than the bank; and the manner in which they refused to pay or secure the bank indicates very clearly that they would not pay or secure the plaintiff. The law does not require vain and useless things. A refusal to pay or secure the plaintiff may satisfactorily appear in such a case without a direct demand. To hold that a formal demand for payment or security was a necessary prerequisite to sue out the attachment in this case on the ground of removal, etc., would be requiring a useless thing, and tend to defeat the remedy by attachment.

The plaintiff urged and demanded of Beckwith that they pay or secure the note to the bank, which Beck with positively and in offensive terms refused to do. The plaintiff got the bank to draw a draft on De Groat for the same; plaintiff writing him a letter, fully explaining the transaction. The letter, though received, was not answered, and the draft was returned unpaid. These demands occurred after the

ROBINSON, J., not concurring.

(80 Iowa, 772)

VALLEY NAT. BANK V. JOHNSON DIRECTORY CO. et al.

Macomber v. JackAway et al.

(Supreme Court of Iowa. June 5, 1890.) Appeals from district court, Polk county; MARCUS KAVANAGH, Judge.

Action on a promissory note. Judgment for defendant in each case, and the plaintiffs appeal.

J. K. Macomber and Mitchell & Dudley, for ap pellants. Bosquet & Earle, for appellees.

PER CURIAM. The facts and legal principles that control these cases are the same as those in the case of Bank v. Jackaway, ante, 851, in which an opinion has been filed at this term stating the facts and the law applicable thereto. The cases are submitted and to be disposed of on the same argument. Following that case, the judgment in each of these must be and is reversed.

(80 Lown, 542)

MERRILL V. PACKER.

(Supreme Court of Iowa. June 5, 1890.) GAMBLING CONTRACT-PUBLIC POLICY-INSTRUO

TIONS.

1. A contract whereby defendant gave the note sued on in consideration of the sale to him of 40 bushels of "prolific oats at $15 per bushel as a speculation, and the obligation of the payee "that on or before the first day of September, 1883, we hereby agree to sell to responsible parties eighty bushels of defendant's grain "at $15 per bushel, for which he agrees to take his pay in notes," was not a gambling contract within the meaning of Code Iowa, § 4029, providing that notes given for money lost in gambling should be void.

2. Such contract was, however, against public policy, and void.

3. There being evidence tending to show that an indorser, before purchasing the note, asked defendant if it was all right, to which he answered that it was, and he was willing that the indorser should purchase it, or that it was all right, "if those men fulfill this contract," it was proper to charge that if defendant, knowing that such indorser intended to buy the note, told him that he would pay it, and if the indorser purchased relying thereon, then defendant was estopped from denying liability, whether the note was void or not; but, if he said he would pay it if the payees did as they agreed, then he was not estopped.

4. There being evidence that such indorser purchased as agent for plaintiff, it was proper to charge that, if such were the case, plaintiff was chargeable with whatever notice such indorser had.

5. In view of the issue as to such agency, it was proper to ask the indorser what he paid for the note, as bearing upon plaintiff's good faith in the purchase.

Appeal from district court, Marshall county; J. L. STEVENS, Judge.

Action upon a promissory note made July 25, 1887, by defendant to E. C. Johnson or bearer for $600, due October 1, 1888, with 10 per cent. interest, payable annually, with 10 per cent. on interest due, attorney's fees if action is commenced, and a clause conferring jurisdiction on any justice of the peace. It is alleged that this promissory note was indorsed by Johnson to O. L. Binford, who indorsed same to plaintiff, for value, before due. Defendant admits the execution of the note, and alleges that it was executed in connection

by false and fraudulent representations, without consideration, and to evade the usury laws of the state; that said note and bond were made to cover a wagering and gambling contract; that said contract is in restraint of trade; that the clause in the note giving a justice jurisdiction makes the note null and void, and non-negotiable; that plaintiff purchased, with knowledge of the facts, from O. L. Binford, who took it with notice; and that neither were bona fide holders, but that E. C. Johnson, who made the false representations relied upon, was the owner. Plaintiff, in reply, alleges that defendant told Binford, before he purchased the note, that it was all right, and did not disclose any objections now made. Trial to a jury. Verdict for defendant. Plaintiff's motion for a new trial overruled, and judgment entered on the verdict. Plaintiff appeals. There is no question but that the note in suit was executed in consideration of the sale to defendant of 40 bushels of "prolific oats at fifteen dollars per bushel, as a speculation," by the Farmers' Field & Garden Seed Company, and the obligation in writing of said company witnessing "that on or before the first day of September, 1883, we hereby agree to sell to responsible parties eighty bushels of Mr. Allen Packer's grain at fifteen dollars per bushel, for which he agrees to take his pay in notes," the company to have 33% percent. commission on all notes taken. It is agreed in writing "that the transaction covered by this obligation is of a speculative character, and is not based upon the real value of the grain."

H. C. Henderson, J. H. Bradley, and O. L. Binford, for appellant. H. E. J. Boardman, J. M. Parker, and J. L. Carney, for appellee.

GIVEN, J. 1. The note and so-called bond, being executed as parts of the same transaction, are to be construed together. Thus construed, they express fully the contract between the parties. It was the duty of the court to construe these writings, and determine what contract was therein expressed. If, thus construed, they disclosed a contract void for any of the reasons alleged, or valid as to any of such reasons, it was the duty of the court to so declare. The court submitted to the jury the question as to whether this was a gambling contract. In Hauks v. Brown, 44 N. W. Rep. 811, wherein the contract was identical with this, so far as this question is concerned, this court held that it was not a gambling contract, within the meaning of section 4029, Code. We have reviewed the subject in the light of the arguments and authorities cited herein on a petition for a rehearing in that case, and are still of the opinion that the conclusions announced in that case are correct. It follows that, instead of submitting the question to the jury, the court should have instructed them, as a matter of law, that this was not a gambling contract.

2. Notwithstanding this contract is valid so far as the charge that it is a gambling contract is concerned, yet, if it was void or any other of the reasons alleged, it was the duty of the court to so instruct.

*

*

That this contract is void as being against public policy, we have no doubt. Any contract that binds "the maker to do something opposed to the public policy of the state or nation, or conflicts with the wants, interests, or prevailing sentiment of the people, or our obligations to the world, or is repugnant to the morals of the times, is void." Greenh. Pub. Pol. p. 1. "Any contract which has for its object the practice of deception upon the public or public officers, or upon any party in interest as to ownership of property, (b) the nature of a transaction, (e) the responsibility assumed by an obligation, (m) or which is made in order to consummate a fraud upon the people or *(o) upon third persons, (p) is void." Id. p. 152. This contract is so out of the usual course of dealings as to awaken suspicion of its fairness. Ordinarily, contracts are made upon the basis of what is believed to be actual values, but this is confessedly upon the basis of most extravagant and unreal values. To carry out this contract, 80 bushels of grain had to be sold to some person, on or before September 1, 1888, for more than 30 times their value. This could only be done by grossly deceiving the purchaser as to their value, or repeating the scheme upon which this contract was made, or one similar. That such a scheme could not be repeated year after year is evident, so that in the end some person must be deceived into paying many times the value of the oats. If it was not intended upon the part of the company to carry out the contract, then the fraud was consummated the sooner. View the transaction as you may, and it discloses a cunningly devised plan to cheat and defraud. "Whenever any contract conflicts with the morals of the time, and contra venes any established interests of society, it is void as being against public policy." Story, Confl. Laws, § 546. Surely a contract that cannot be performed without deception and fraud conflicts with the morals of the time, and contravenes the established interest of society. There was no error in instructing the jury that this contract is fraudulent and void as between the original parties to it. In this connection, see McNamara v. Gargett, 36 N. W. Rep. 218, wherein the supreme court of Michigan held a similar contract void as being against public policy. True, in that case the contract is said to be a gambling contract, but it is declared to be against public policy on other grounds.

3. There was testimony tending to show that, before the transfer of the note to Binford, he, with a view to buying, asked the defendant if it was all right, to which he answered that it was, and that he was willing that Binford should buy it, or that it was all right "if these men fulfill this contract." Plaintiff asked an instruction that if defendant stated what the note was given for, but did not disclose the defects now claimed, and Binford bought relying upon the statement, the defendant would not now be permitted to plead defenses not then disclosed. The court instructed that if defendant, being informed that Binford was about to purchase the note, told him that it was all right, and

that he would pay the same, and that Binford relied upon such statement when he purchased the note, the defendant is estopped from denying his liability, regardless of whether the note was part of a gambling contract, or obtained by fraud, but, if he stated that he would pay the note providing the parties to whom it was given did as they agreed, or that in substance, then he was not estopped from denying liability, or asserting the illegality of the note. The instruction given is in accord with 1 Daniel, Neg. Inst. § 859, cited by appellant. If the defendant stated that he would pay if the others did as they agreed, that would indicate to Binford that there was something to be done that affected the validity of the note. There was no error in the instruction given, nor in refusing that asked.

4. There was testimony from which appellee claimed that Binford was acting as agent of plaintiff in purchasing the note from Johnson. from Johnson. If Binford was acting as such agent, then plaintiff was chargeable with whatever knowledge Binford had with respect to infirmities in the note. It is not for us to say whether such agency was proven. There was evidence tending to show it, and it was the duty of the court to submit the question to the jury. 5. On the cross-examination of Binford, defendant was permitted to ask, over plaintiff's objection, what he paid for the note. It was in issue whether Binford purchased the note as agent for plaintiff. If he did, then the testimony was admissible as showing good or bad faith in the purchase. The objection was properly overruled.

This disposes of all points discussed, and brings us to the conclusion that the judgment of the district court must be reversed.

SHIPLEY V. REASONER.

(80 Iowa, 548)

(Supreme Court of Iowa. June 5, 1890.) APPEAL-REVIEW-"BOHEMIAN OATS" NOTESPUBLIC POLICY.

1. Under Code Iowa, § 3169, providing that the supreme court may review any judgment of the district court, although no motion for a new trial was made therein, the supreme court will consider the overruling of defendant's motion to direct a verdict in his favor, where it is duly excepted to, though section 3168 provides that a judgment shall not be reversed for an error which the lower court might correct on motion until such a motion is made and overruled, since the exceptions are sufficient to bring the error to the attention of the court.

2. A contract by which the party of the first part purchases 50 bushels of "Bohemian oats," at $10 a bushel, from the party of the second part, who agrees to sell for him the next year 100 bushels, at $10 a bushel, is not a gambling contract.

3. Such contract, however, is against public policy, and void, as it is not based on real values, and cannot be performed without defrauding some one; and hence the purchaser cannot recover notes given for the price, as upon failure of consideration, or for fraud in the contract, as he is particeps criminis.

Appeal from district court, Madison county; J. H. HENDERSON, Judge.

Action to recover possession of two promissory notes executed by the plaintiff to one Morse, and held by the defend

Ap

There is but little conflict as to the facts, which are substantially as follows: On November 7, 1887, one G. B. Morse, representing an Ohlo corporation called the "Crawford, Henry & Williams County Seed Company," proposed to sell to plaintiff 50 bushels of Bohemian oats, at $10 per bushel, and to give the bond of said company that it would sell 100 bushels of Bohemian oats for the plaintiff at $10 per bushel, less 25 per cent. commission, on or before November 1, 1888. The plaintiff then and there accepted said offer, and executed and delivered to said Morse the two notes in controversy, for $250 each, payable to said Morse or bearer, on the 1st day of January, 1889, with 10 per cent. interest, and received from said Morse the written agreement of said company to sell 100 bushels of Bohemian oats for him at $10 per bushel, less 25 per cent. commission, on or before November 1, 1888. pellee testified that he then knew that such oats had been in the eastern part of the county two years, and then knew as much about the manner of this company's doing business as he had learned since; that Reasoner was not there, and that Morse said Reasoner would furnish the oats, and that he (Shipley) should make an effort and raise a crop of oats, and if he did not raise one they would sell for him any way, and redeem their bond. One Lillis, who was present, denies that Morse said Reasoner would furnish the oats, and Reasoner denies that he had any arrangement with any person to furnish oats to Shipley. The notes were delivered by Morse to one Wilson, who was also doing business for the company. Appellees finding, as he states, that Reasoner was not going to furnish the oats, went to Wilson, November 29, 1887, to get back his notes. At the suggestion of Wilson, Shipley went some 11 miles into the country for Reasoner, and on their arriving in town it was agreed between these three that Reasoner should deliver to Shipley the 50 bushels of Bohemian oats, pay Wilson $125 commission, and take the notes in controversy, Shipley and Reasoner to execute a writing as follows: "That, upon the terms hereinafter stated, the said A. H. Shipley has purchased of the said John Reasoner fifty bushels of Bohemian oats, and this day executes and delivers to said Reasoner his promissory note for the sum of five hun

ten percent. interest per annum. The said A. H. Shipley agrees to sow and cultivate said oats on his farm in section 26, Monroe township, being the north half of the south-east quarter of section 26, township 74, range 28; and it is further agreed by the parties hereto that the said Reasoner is to govern and control the disposition and sale of said oats, until this note is paid in full; and after said oats are threshed the said A. H. Shipley is not to sell or remove from his premises any of said oats without the order and consent of the said Reasoner or his agent, and, as fast as sales are made, the proceeds thereof are to be paid to said Reasoner, and the amounts credited on said note." In pursuance of this agreement these parties executed said written agreement. Reasoner paid Wilson the $125, receiving the notes in question, and thereafter delivered 50 bushels of Bohemian oats to Shipley, worth at least 75 cents per bushel. Shipley sowed 13 bushels, from which he raised 132 bushels, the balance he fed to his pigs. There is no testimony tending to show that Shipley ever returned, or offered to return, the 50 bushels of oats, or their value, nor that any one ever offered to sell any oats for Shipley, nor as to what was done with or about the crop raised.

Dabney & Guiter, for appellant. Steele, Leonard & Wainwright, for appellee.

GIVEN, J. 1. Appellee contends that as no new trial was asked by appellant, the only inquiry is whether the defendant was entitled to a judgment on the special findings, by reason of their inconsistency with the general verdict. "The supreme court may review or reverse, on appeal, any judgment or order of the district court or circuit court, although no motion for a new trial was made in such court." Code, § 3169. "A judgment or order shall not be reversed for an error which can be corrected on motion in an inferior court, until such motion has been made there, and overruled." Code, § 3168. The purpose of a motion for a new trial is to bring to the attention of the trial court questions to which its attention would not otherwise be called. While this court will not consider errors that have not been called to the attention of the trial court, it will consider all questions presented to the lower court upon which there was a ruling and exceptions taken, when the ruling is assigned as error and presented in argument. Appellant excepted to the overruling of his motion to direct a verdict for the defendant, and his motion for judgment on the special findings, and hence the question involved in these motions, being specifically pointed out and assigned and argued as errors, are before us for consideration.

2. The controlling question is whether the plaintiff was entitled to the immediate possession of the promissory notes in question at the commencement of this action. The maker of a promissory note may maintain an action to recover possession thereof when under the facts equity would decree its cancellation. Cancellation will be decreed when there has been