65 Iowa 292 | Iowa | 1884
I. One Andrews executed his promissory note, payable to plaintiff or bearer. Clark, by indorsement, guaranteed the payment of the note, and waived notice. Subsequently Barrett, by indorsement, guaranteed the collection of the note. This action is against Barrett alone. There was evidence tending to show that at and since the maturity
These instructions, we think, are correct. The guaranty of defendant was for the collection of the note, and related to it as it was when he became guarantor. He became bound to pay it in case it could not be collected by reasonable diligence. As Clark was bound to pay the note by his guaranty, defendant’s contract related to the liability of Clark as well as of Adams. Defendant became liable only in case the note was not paid by either Adams or Clark, after proper diligence was used by pdaintiff to collect it from both. This is the obvious effect of defendant’s guaranty. The plaintiff, by showing Adams’ insolvency and non-residence, excused want of effort to collect from him. This is contem-* plated in the court’s instruction. But no excuse is shown for neglect to use diligence to collect the note from Clark. Plaintiff, therefore, cannot recover of defendant. The instructions above set out are correct, and those asked
The judgment of the district court is
Affirmed.