Hall v. Monohan

Wrigiit, C. J. — The principal question raised, and to be determined in this case, will be sufficiently understood, [218] by the two following instructions : the first of which was asked by plaintiff and given, and the second, asked by defendant, refused: First. “That upon such a note, it is not necessary for the plaintiff to prove diligence (against the maker,) and the want of diligence is no defence to the plaintiff’s right to recover.” Second. “That this note having been assigned after due, and the defendant having been sued as indorser thereon, he cannot be made liable, without proof of demand of maker, and notice to indorser.” The case of Wilson v. Ralph & Van Shaick, 3 Iowa, 450, determines this. That was an action against the maker and indorser of a promissory note, which (like the note in this case), contained no words of negotiability. It was there held, (following the case of Seymour v. Van Slick, 8 Wend., 421,) that the indorsement is equivalent to the making of a new note — it is a guaranty that the note will be paid— it is a direct and positive undertaking on the part of the indorser, to pay the note to the indorsee, and not a conditional one to pay, if the maker does not, upon demand, after due notice. In such case, the indorser is not entitled to the usual privilege of an indorser of nogotiable paper. He stands in the relation of a principal, and not surety, to his indorser, and has no right to insist upon a previous demand of the maker, and notice of non-payment. And, see Smyser v. Hawthorn and Long, 3 Ib. 266. Appellant urges that the action is brought against defendant as indorser, and not as the assignor of the note, and that, therefore, the instructions were improper. When we state, however, that this action was commenced before a justice of the peace, the objection, (if entitled to weight or consideration under any circumstances), loses all force. The plaintiff, before the justice, filed the note, and claimed that the defendant was legally liable to him by virtue of the indorsement thereon. No written petition was filed, nor was any necessary. And in accordance with the rule which has been uniformly applied to proceedings before these inferior tribunals, we think the objection is wanting in both technical and substantial weight or force. The [219] true question was, and is, whether defendant should be held liable, by virtue of the writing by him signed, on the back of the note, without proof of diligence against the maker, demand and due notice, and it is entirely immaterial whether he is styled the indorser or assignor. The fact that the note was assigned after due, can in no manner aid defendant. Judgment affirmed.