84 Iowa 377 | Iowa | 1892
On the twenty-fourth of July, 1880,. the firm of O’Connell & Springer made to the plaintiff bank its note for eight hundred seventy-five dollars, due thirty days after date, and the action is to-recover thereon. As a defense to the action it is-averred in the answer that the defendant Springer-delivered to the plaintiff, as collateral to the note in suit, certain tax-sale certificates of the value of three-hundred dollars, and that some two hundred and fifty-dollars was paid to the county auditor in redemption, which the plaintiff neglected to take and apply on the note. Also that certain promissory notes were delivered to the plaintiff, as collateral security, against one Norton, of the aggregate value of three hundred dollars; that the notes have become barred by the statute of limitations; and the defendants say that the proceeds of the certificates and notes were lost to them because of the negligence of the plaintiff in caring for and applying the proceeds thereof. A reply puts in issue the defensive averments of the answer.
I. This is a law action, and the evidence is such that the district court have found that the certificates.
It is urged by the appellant that the facts as. stated are not available as a defense before the defendants have paid the note in suit, or made a tender of payment; and some authorities are cited in support of such a rule. The authorities cited go to the support of the following and quite similar propositions: “The return of a pledge is not a condition tp be performed before or concurrently with the payment of the debt secured.” Jones on Pledges, sec. 593. A tender is necessary to enable the pledgor to maintain trover against the pledgee for a conversion of securities when the lien created by the pledge has not been otherwise discharged. Jarvis v. Rogers, 15 Mass. 389. From the foregoing and other kindred propositions, the appellant deduces a rule for this case as follows: “We contend that in a law action the pledgor, where sued upon the note, can make no question as to the conduct of the pledgee with reference to the pledge, unless prior to. the commencement of the action he has paid or tendered the pledgee’s debt.” In connection with this language we are cited to Courtright v. Deeds, 37 Iowa, 507, and Nelson v. Wilson, 75 Iowa, 710. Neither case supports such a rule. In the first it is held that, “No action at law can be maintained for money to be paid upon the delivery of a release unless there has first been a delivery or a tender of the release,” and in the second that there can be no recovery upon a subscription to pay a railway company a certain amount when the road was completed to a certain point, on the condition that upon the payment there shall be delivered to the
II. It is also urged that it was not the duty of the plaintiff to sue on the notes, nor to collect the money
III. The note in suit became due August 23, 1880, and the collateral notes were not barred by the statute
IV. A point is made that the maker of the collateral notes might not have availed himself of the bar of the statute,-that he might have waived it; and this is urged against the plaintiff's liability for such notes.