41 Iowa 582 | Iowa | 1875
The evidence shows that the defendant paid the amount of the note to J". W. Thompson, who had it in his possession on the 11th day of October, 1866. Thompson claims that at that time he was the owner of the note under an agreement entered into on the 19th day of March, 1866,
On the trial the plaintiff was permitted, against the objection of defendant, to give in evidence the transcript of a record in the District Court of Black Hawk county, in an action commenced on the 26th day of January, 1869, wherein Alfred Stoddard was plaintiff, and John W. Thompson, Charles Brown, Duane Brown and W. R. Wilson were defendants, in which a decree was rendered that the contract between Thompson and Stoddard had never been fully completed, and had never become valid or binding as between them, and setting aside and cancelling it, and perpetually enjoining the collection, by Thompson, of a certain other note, which he claimed as consideration in part of said agreement.
The bill of exceptions recites that upon the introduction of said transcript the court refused to hear or- receive any further evidence on the part of the defendant, touching the ownership of said note at the time defendant claimed to have paid the same, to which ruling the defendant excepted.
The action of the court in admitting the above evidence, in rejecting further proof on the part of defendant respecting the ownership of the note, and in giving the above instruction, is
II. The defendant asked the court to instruct the jury as follows: “ 12. The note in controversy was payable on or before a certain date. This made the note payable at a fixed time absolutely, and sooner if defendant saw fit to pay it sooner. Such were the express terms of the contract, and, therefore, no presumption of bad faith can arise from the simple fact that defendant paid it when he did, though by its terms payment could not have been demanded or enforced at the time. Defendant had the right to pay it whenever he chose to do so.”
The court refused this instruction, and gave the following: “ 8. A promissory note, payable on or before two years after date, is due at the end of two years and not before; the rule of law being that the note becomes due at the time when the payee or legal holder or owner of the same has the right to demand payment, and this is true, although the note provides that the payor may at his option pay the same before the time fixed when it shall absolutely become due.”
■ “ 9. The payment of a note by the payor before it becomes due, to a stranger who may have possession of the note, will not protect and discharge the maker, if said note has been stolen, or otherwise surreptitiously come into the hands of the party presenting the same.”
Other instructions given embrace the same doctrine.
It has been declared in general terms, that the payment of a note which has been lost or stolen, before it is due, does not discharge the maker from liability to the real owner, because the payment is out of the ordinary course of business. 2 Parsons on Notes and Bills, 255, and cases cited.
This action was erroneous. Mere suspicion that a person in possession of a note payable to bearer may not be the owner, will not exonerate the maker from payment; but there must be circumstances amounting to clear proof that he is a fraudulent holder. Story on Promissory Notes, section 613,
For tlie errors discussed, the judgment is
Reversed.