38 Iowa 406 | Iowa | 1874
— The note upon which suit is brought is negotiable. It is alleged that before the maturity thereof it was indorsed in blank by Michael Cash, the payee thereof, to the plaintiff, and that the indorser had notice of the dishonor of the same; that demand for payment was made and refused after the note matured, and that notice in writing of such demand was given to Cash about four years after the maturity of the note. It is further alleged in an amendment to the petition that plaintiff bought the note from Cash, paying him the full amount thereof; that at the time of the indorsement and transfer of the note it was orally agreed between the parties that “ the plaintiff should not sue on said note but wait until defendant O’Brien could pay said note,’ or until Cash should give notice to commence action on said note;” that at numerous times between the transfer of the note and the commencement of this action, “ Cash has notified plaintiff not to push or distress said O’Brien and at all times assured plaintiff that he as indorser would stand good for the payment of said
The court sustained a demurrer'to the petition as amended, which ruling is assigned as error.
Appellant urges that the verbal agreement, alleged to have been made at the time of the transfer of the note to plaintiff, to the effect that plaintiff should not sue the maker, O’Brien, until he could pay or until the indorser should notify plaintiff to sue, operated as a waiver of demand and notice. It seems clear to us that this would be giving to this alleged agreement a meaning and effect far beyond its scope, and not within the contemplation of the parties. The agreement that suit was to be delayed, by no means exonerated the plaintiff from the duty of making demand upon the maker at the maturity of the note, and from giving the indorser due notice of default in payment. These acts were necessary to fix an absolute liability upon the indorser, and they could be done without infringing upon the agreement to delay suit on the note. There is no inconsistency between the agreement alleged and the duty to make demand and give notice.
The substance of the alleged agreement is that if, at the maturity of the note, the maker was not able to pay, the plaintiff was not to sue until he was able, or until the indorser
Affirmed.