Laub v. Rudd

37 Iowa 617 | Iowa | 1873

Day, J.

I. This case does not essentially differ from Gage v. Sharp, 24 Iowa, 15. The plaintiff knew that the expectation was that the note would be given to Jackson for a yoke of cattle, and he suspected that Dow was a surety thereon. He did not know that Dow was to have a chattel mortgage on the Jackson cattle, and hence he had no reason to suppose that the Jackson cattle alone were to be purchased, or that the note was to be transferred to Jackson only. In terms the note was payable to Jackson or bearer. No fact was brought to the knowledge of plaintiff from which he could suppose that Dow had any interest in Rudd’s .getting the particular cattle owned by Jackson. There is nothing to affect the bona fides of plaintiff.

He only knew that a note, on which Dow was supposed to be surety, and which was intended to be given to Jackson for a yoke of catttle, was being traded to himself for a yoke of cattle, instead of to Jackson. He knew of no fact which could lead him to suppose that the surety would sustain any prejudice because of the substitution of himself as holder. The »nly material fact which he knew was that a note payable to payee or bearer was being negotiated to another than the payee. That this fact is not enough to defeat his recovery, see Gage v. Sharp, 24 Iowa, 15.

II. Appellant insists that the court erred in the finding of fact that plaintiff had no knowledge that Rudd was to indemnify Dow by a mortgage on the Jackson cattle. The only evidence on this branch of the case is the affidavit of defendant for a continuance, which was admitted as testimony, stating that Rudd would swear that he so informed plaintiff; and the testimony of plaintiff that he had no such information. The evidence being thus evenly balanced, the determination of the court below on a question of fact will not be disturbed.

III. It is urged, though apparently with not much confidence, that the indorsement of $6.25 as a credit upon the note materially changed it, and discharged Dow from liability thereon. This indorsement effects no change upon the face of the note. It is the same note as respects date, amount, payee and time of payment as before. If the note had been negotiated, and after that $6.25 had been credited thereon, no one would claim that such an alteration had been made as would discharge' the surety. The effect is just the same when the credit is indorsed at the time of negotiation.

The judgment of the district court is

Affirmed.