Tolman v. Janson

Granger, J. [457] 2 3 [456] The plaintiff put in evidence the notes sued on, and rested his case. Defendant then introduced evidence directed to his defense of a failure of consideration, and upon the submission of the case judgment was entered for defendant. The conclusion of the court could have been based on no other finding than that the notes were nonnegotiable, because of which the- plaintiff is not protected as an innocent holder of value. Being the holder of the notes, he has in his favor such a presumption, which must be ’overcome by proof, before the defense pleaded is available as against him. Manufacturing Co. v. Thomas, 53 Iowa, 558; Trustees v. Hill, 12 Iowa, 462; Richards v. Monroe, 85 Iowa, 359. Authorities to the same effect are numerous. That the court below based its conclusion on a finding that the defense could be urged against plaintiff on the ground of the non-negotiability of the notes is conceded by appellee in argument, for he says, “The only legal question relevant or pertinent is the negotiability of the notes.” It is then said [457] that the district court held chat they were not negotiable, and that the defense was good. The only ground on which the notes are said to be nou-negotiable is the provision authorizing any attorney to appear and confess judgment, because it makes uncertain the time of payment. The conclusion is, likely, correct under our holding in Culbertson v. Nelson, 93 Iowa, 187. But, unfortunately for appellee, we meet another question not presented in argument. The notes were made in Illinois. The pleadings contain no averment that the law of Illinois differs from ours on the subject of provisions in a note for die confession of judgment by an attorney. In Hamilton v. Schoenberger, 47 Iowa, 385, it is expressly held that such a provision in a note cannot be enforced in the courts of this state, and is not authorized nor contemplated by our laws. For the purposes of this case we must regard the law of Illinois the same as ours, unless pleaded and proven to be otherwise. Bean v. Briggs, 4 Iowa, 464; Crafts v. Clark, 31 Iowa, 77; Webster v. Hunter, 50 Iowa, 215; Hadley v. Gregory, 57 Iowa, 157. From this the unmistakable conclusion is that the provision of the notes as to confession of judgment was never of any validity, and hence no part of the notes. The ai’gument of appellee practically concedes that the notes, without the provision as to confession of judgment, are negotiable, as they surely are. Such a conclusion, under the conditions of the record, entitles the plaintiff to judgment. This conclusion is not on the line of the arguments presented, but, nevertheless, it seems conclusive, and the judgment must stand reversed.