Isham v. McClure

Day, J. 1. PROMISSORY note: indorser: waiver of demand and notice. I. The note sued upon was indorsed by the defendant in blank, before maturity. There was no demand of payment of the maker, nor notice of non-payment to the indorser. The petition alleges that the defendant expressly agreed to pay the note at maturity, if not paid by the maker, and verbally agreed to waive demand and notice. The testimony of the plaintiff does not establish this allegation of the petition. The plaintiff ■testifies: He said “ by assigning it to me he would be respon 517 sible, and I thought so. That is the reason I never looked np Mr. Jordan or the property, because I thought the defendant would do it as he told me, and I thought he was bound to do it by the indorsement of the note, and I took the note.” This testimony shows that the plaintiff relied upon the indorsement, and thought it made the defendant absolutely liable. A promise to pay a note at maturity, would not, of itself, constitute a waiver of demand and notice. Freeman v. O’Brien and Cash, 38 Iowa, 406. The defendant testifies that he never did agree with plaintiff to pay *him the note except as indorser. The court did not err in fiuding that the evidence does not establish the express agreement alleged in the petition. 2. —: — : acts of indorser. II. The evidence shows that before the note matured the defendant induced the plaintiff to commence an action to recover installments of interest due; that the mortgage was foreclosed and the mortgaged property was sold to plaintiff, and the certificate of purchase was assigned to the defendant upon payment of the amount of the plaintiff’s bid. The evidence also shows that before the note matured the defendant procured the plaintiff to commence a suit by attachment against Jordan; that he swore to the petition and assisted the attorneys in the prosecution- of this suit. It is not alleged in the petition that the plaintiff was led by these acts to neglect to make demand and give notice of non-payment, nor that they constitute a waiver of demand. It is, however, insisted in argument that these acts constitute a waiver of demand and notice. There is no testimony that the plaintiff was misled by these acts, nor that he relied upon them. They are not at all inconsistent with the right of the defendant to insist upon demand and notice in strict conformity with the requirements of law. The defendant became conditionally liable upon his indorsement. All that was required to make this liability absolute was, demand of payment of the maker at maturity, and notice of nonpayment. The defendant might well suppose that these steps 518 would be taken, and that his liability would become fixed. Hence it was entirely competent for him, before the maturity of the note, to insist upon and to aid in the collection of the note from the maker. These acts did not interfere with, and were not prejudicial to the plaintiff. Inasmuch as the evidence does not show that the plaintiff relied upon these acts to his prejudice, the court did not err in holding upon the evidence submitted, that they did not constitute a waiver of demand and notice. The court made no findings of fact, and the only question which the record presents for our consideration is the sufficiency of the evidence to support the judgment. Affirmed.