Peddicord & Wyman v. Whittam

| Iowa | Oct 28, 1859

Woodward, J.

The instrument sued on is not a promissory note, nor is it negotiable under Sec. 950 of the Code, as claimed by the defendant Whittam. That section provides that promises to pay property, or a sum of money in ■ property, shall be negotiable whenever it is manifest from tbe terms that sucb was the intent of the maker. But the use of the word “order” or “bearer” alone will not manifest such intent. There is nothing in this paper indicating an intent to make it negotiable, save the use of the word “bearer,” consequently the days of grace claimed by this defendant do not pertain to the contract.

The defendant, Lucore & Co., moved to dismiss the action in substance because no sufficient notice had been served, and assigned as cause, that the petition is upon the contract of guarranty, and the notice is to answer to a demand for money due on a promissory note. The notice in calling upon defendant to answér upon a promissory note is sufficiently accurate for the purpose of an original notice, even admitting that the instrument is not technically a promissory note ; and we do not think the Court erred in so holding.

Lucore & Co. also - demurred to- the petition for several causes which will be noticed without a formal statement of each. The guaranty of Lucore & Co. to the plaintiffs i? not under section 953, 954 and 955 of the Code. These refer to the indorsement by one who is not a payee, indorsee, or assignee. The particular effect of this, and the rights attending it, do not belong to the indorsement and express guar-ranty of an assignee who becomes assignor and guarantor of such an instrument. It was not requisite that the petition should aver a demand and refusal of payment, and notice thereof, Long v. Smyzer et al., 3 Iowa 266" court="Iowa" date_filed="1856-12-15" href="https://app.midpage.ai/document/long-v-smyser-7091146?utm_source=webapp" opinion_id="7091146">3 Iowa 266; Wilson v. Ralph et al. Ib. 450; nor was it necessary to aver the use of diligence by instituting suit, nor that the defendants had suffered no detriment by reason of this not being done.

By the law of Iowa a consideration is implied in a written contract, and it need be no farther expressed than is here done. A copy of the instrument and indorsements is embodied in the petition, and no further one is necessary.

Whether these defendants Lucore & Co. are properly made parties depends upon the construction to be given to their contract.

In the case of Long v. Smyzer, and Wilson v. Ralph, supra, a simple indorsement of a non-negotiable instrument was held to be a promise to pay it, and not conditional upon demand and refusal.

In the present case the indorsement is, “we guaranty this note.” This means a guaranty that the note shall be paid at maturity, on presentation, or according to the nature of the case. Under this construction the defendants were properly made parties defendant and the demurrer was correctly overruled.

The instrument not being a promissory note, properly, days of grace do not attach to it, and the motion of defendant based upon the ground that the action was commenced too early, is without foundation, and was correctly overruled.

The judgment of the District Court is affirmed, but as it appears that the cause is not finally disposed of, on other grounds, in that court, but stands continued, a writ of pro-cedendo will issue.