29 Iowa 104 | Iowa | 1870
I. On the trial the plaintiffs introduced one of their firm as a witness, who testified as to certain facts in respect of the drawing of the bill, its consideration, etc. The witness was then asked as to a certain, conversation between him and the defendant Palmer, shortly after the maturity of the bill and in respect of his promise to pay the same. This was objected to because immaterial; the objection was overruled and proper exceptions taken. The witness answered, detailing a conversation tending to show a promise by defendant to pay the bill. Further testimony was also introduced under like objection, tending to show a like promise by Clark, the other defendant. And the court, against the objection of defendants, instructed the jury, that if they should find that defendants had funds in the drawees’ hands and had a right to draw the bill, and no notice of the failure to accept was given them, then they would be released; “but if defendants, or either of them, afterward, with full knowledge of such release, unconditionally promised to pay the draft, then such release would be waived.”
It will be seen, by reference to the statement preceding this opinion, that there was no issue made as to the waiver; nor, indeed, was there any intimation in the
The direct question is, then, fairly raised by this record ■and is pressed by the appellants’ counsel, whether, under our code system of pleading a plaintiff in an action upon a note or bill may aver demand, protest and due notice thereof, and then recover by proving facts amounting to a waiver of them ?
It is said in Parsons on Notes and Bills, volume 1, page 465 : “With respect to the pleadings in case of excuse, it will be seen that an averment of presentment and demand of payment on a promisor is supported by proof of circumstances amounting to an excuse thereof.” No authority is cited by the learned author in support of this proposition. And in this case it is not controverted by counsel that such was the rule at the common law, and further, it is conceded that a promise to pay, by a party entitled to notice, distinctly made with a full knowledge of all the facts and that there has been a want of due notice of the dishonor, will amount to a waiver of such notice and make the party liable, the same as if due notice had been given.
We hold, under our code of practice, that a party cannot properly give in evidence facts amounting to a waiver under an averment of due notice; and, as a consequence, the court erred in admitting the evidence and giving the instruction objected to as above. We proceed to state briefly some of our reasons for this holding.
Our code provides (Bev. ^ 2875, subdiv. 3), that the petition shall contain a statement in ordinary and concise language, without repetition, of the facts constituting the plaintiff’s cause of action.” The same provision is made as respects new matter in the- answer constituting a defense, set-off, or counterclaim, etc. Bev. \ 2880. From these, as well as from very many other provisions, it is
If a party may aver in his pleading that he presented the bill of exchange sued upon for acceptance, which was refused, and due notice thereof given to the defendant, and sustain the same, not by proof of any such facts, but by showing that after he had failed to do any one of those things the defendant promised to pay the bill, then it must be true that our code does not mean what its language clearly imports, and that our supposed improvement upon the technical and deceptive common-law system of pleading is a myth. Take what the record in this case discloses : that the defendants, relying upon the trial of the issues as made by the pleadings, went to trial in the absence of one of the defendants, by whom they could disprove the alleged promise testified to by the plaintiff. Having no issue upon such promise and no expectation of any testimony upon it, they were not, of course, prepared to rebut it. The only safe way is to administer our system of pleading and practice according to its plain language and intent, and require parties to conform to it.
The conclusion arrived at upon the point already considered operates to reverse the judgment, and renders it •practically unnecessary to review the instructions refused and given. Some of those asked by defendants and refused, were refused, doubtless, because of their conflict with the views of the district court, which are reversed as above. Such was surely the case with instructions numbers nine and ten, and probably with numbers one, two, six and eight; and so, it is also clear from the foregoing views, that instructions four, five and seven, which were given by the court, ought not to have been given. It is not necessary to examine them in detail or further express any opinion upon them.
Reversed.
