Abell Note Brokerage & Bond Co. v. Hurd

Given, J. The only question discussed on this appeal is the plaintiff’s right to prosecute the action. [560] The appellant’s contention is that, as the note was indorsed to the appellee for the purpose of collection, it is not the real party in interest, and therefore not entitled to prosecute this action; citing section 2543 of the Code, which requires that “every action must be prosecuted in the name of the real party in interest, except as provided in the next section,” as to executors, etc. This contention of the appellants is fully answered in Cottle v. Cole, 20 Iowa, 485, where it is said: “The course of decision in this state establishes this rule, viz.: That the party holding the legal title of a note or instrument may sue on it though he be an agent or trustee, and liable to account to another for the proceeds of the recovery, but he is open, in such case, to any defense which exists against the party beneficially interested.” The right of the appellants to maintain their defense of fraud and want of consideration was not questioned, but it does not appear that they offered any evidence whatever to sustain that defense. The appellee contends that the appellants should have raised their objection to the capacity of the plaintiff to maintain the action by demurrer or answer, and that it was too late to raise the question by motion after the evidence was introduced. As our view of the cases just expressed fully disposes of them, we have not considered this claim of the appellee. The judgments of the district court are aeeibmed.