187 Iowa 1192 | Iowa | 1919
Mere failure to protest or to give notice of nonpayment did not release the guarantor. He is not an endorser. Barber was an endorser, but his liability for the payment of the note was fixed by certain instruments pleaded in the cross-petition of Hendrix.
From these instruments, it was made to appear that the notes in question were executed by Hendrix to Barber, as a. part of an agreement whereby Hendrix purchased shares of corporate stock in a corporation principally owned by Barber, and whereby Barber agreed that Hendrix should be employed as the advertising solicitor of the corporation, at a stated salary. It was further provided therein that option was reserved to each party to terminate the contract at any time, in which event Barber should take back the corporate shares from Hendrix, and should restore to Hendrix the purchase price, including the notes in suit. Within two months, the contract, including the employment of Hendrix, was terminated. Thereafter, a further contract was signed by Hendrix and Barber, wherein these facts were recited, and whereby Barber bound himself to redeem and restore to Hendrix the notes in suit.
By virtue of these instruments, therefore, Barber became primarily liable, as between him and Hendrix, for the payment of these notes. The question, therefore, whether he was liable as a mere endorser is beside the mark.
Other grounds of reversal pertain to rulings on evidence. If the ruling of the trial court had been otherwise in each case, it could not have aided the defendants. The material facts which we have already set forth are all undisputed. None of the offered evidence rejected by the court tended in any degree to contradict or qualify the controlling facts above set forth. Indeed, not only are such facts undisputed: they were admitted. The record discloses, in fact, no erroneous ruling at the trial. The judgment was clearly right on the larger merits, and it is — Affirmed.