Hamilton v. Veach

19 Iowa 419 | Iowa | 1865

Lowe, J.

presump Ttest and°" notlce' It is a legal presumption, rightfully to be' indulged, that if the Carters, being the last holders of the PaPer; obtain judgment against all the parties to the note, that such as were entitled to notice of protest, in order to fix their liability, did receive the same, otherwise judgment would not have gone against them.

If, then, the defendant, Yeach, was legally affected with notice of protest in the suit of the Carters against him and others, it is a misconception of the rules of commercial law to hold that when he is sued by his immediate indorsee, that such indorsee, in his petition, must aver that notice of protest had been served upon him either in the first or the second action.

2. sbotiisjudgment: protest?*" The subject of protest for non-payment and notice thereof, this court had occasion to explicate to some extent in the case of Fahnestock et "al. v. Smith et al., reported in 14 Iowa, 561. We there stated the principle that must settle this case, although in the discussion of 'a different question. We also refer to 1 Parson’s new treatise on the law of promissory notes and bills of exchange, on pages 487 to 515, inclusive.’ The doctrine, as bearing upon tbe question under consideration, may be stated to be in substance this:

That the last holder of a protested note, which has passed through a number of hands, has his election to hold one or more of the parties to tbe instrument; if. he chooses to hold all, he must promptly give notice to each prior indorser of protest; if he elect to hold but one, he need only notify him, but that one, in order to protect himself (if there was a prior indorser), must affect him with the required legal notice, and he the next, until they successively get back to the first, so that, when the first or any subsequent indorser is affected with notice in this circuitous manner, or they severally receive notice from the last holder, whichever way it is done, such notice inures to the benefit of all the parties to the paper, who had become such subsequent to the party notified.

It results, therefore, that in this suit it was not incumbent upon the plaintiff, in order to hold his indorser for the amount he paid on the note, that he should allege and prove a demand and notice of non-payment, and that the demurrer as well as the motion for a new trial, based upon the same cause, were each properly overruled.

It is scarcely needful to say that plaintiff’s guaranty of the note to the Carters, in his transfer to them, did not, in the slightest degree, alter or change defendant’s liability as indorser. His responsibility as such may have been the moving cause of the plaintiff’s guaranty.

Judgment affirmed.

Affirmed.