Richards v. Daily, 34 Iowa 427

Richards v. Daily

34 Iowa 427 | Iowa | 1872

Day, J.

The plaintiff, by bis reply, is precluded from having a review of the ruling of the court upon the demurrer, but the same question is saved by the exception to the admission of the testimony of defendant.

Section 1794 of the Revision provides that: “Notes in writing, made and signed by any person promising to pay to another person or bis order, or bearer, or to bearer only, any sum of money, are negotiable by indorsement or delivery *429in the same manner as inland hills of exchange, according to the custom of merchants.” If the note is payable to order it is negotiable by indorsement; if to bearer, by delivery. Younker v. Martin, 18 Iowa, 143. And the holder of such note, transferred a's above stated, after matnwity, takes it subject to all equities arising out of the note itself, such as payment, want of consideration, or fraud, hut not subject to any independent set-off. This doctrine is elementary. And this rule is not affected by section 2760 of the Revision, which applies to the assignee of a chose in action, and provides that a suit in his own name, which at common law he could not maintain, shall he without prejudice to any set-off or other defense, existing before notice of the assignment. The notes sued on are payable to B. Eoop or hearer. If they had been passed to plaintiff by mere delivery, without any writing, after maturity, they would not have been subject, in his hands, to the set-off pleaded, which is an independent cause of action existing in favor of the maker against the payee, having ho reference whatever to the notes in question. Now are the rights of the plaintiff abridged by the fact that the notes were transferred by a formal written assignment, and not by mere delivery? We know of no principle of law or reason why this should be so. The written assignment merely gives formal expression to what the law, by the mere delivery of paper payable to bearer, implies, to wit: An intention to vest in the holder the absolute ownership. And if the law gives effect to this unexpressed intention, so far as to vest in the holder a title unincumbered with rights of mere set-off, why should not the expressed intention have equal effect ?

Had the paper been a non-negotiable chose in action, so that the simple delivery thereof would have conferred upon the holder no right at common law to sue in his own name, the assignee, whether by mere delivery or by written assignment, would take it subject to the set-off or other defenses *430mentioned in section 2760. And the same is true of a negotiable note payable to order, and transferred by delivery, after maturity. It would seem, under said section, that the holder of a note, payable to order transferred by delivery before maturity, takes it discharged of all independent set-offs, and liable only to such equities as inhere in the note itself. From the views above expressed it follows that the court erred in holding the notes in plaintiff’s hands subject to the set-off interposed.

Reversed.