33 Iowa 380 | Iowa | 1871
The court could not, on the objection of appellant, presume that he did not have notice of the proceedings in bankruptcy, which it would be necessary to do in order to sustain the objection, even if a want of notice would be ground for objection.
The facts found are that plaintiff knew Lindley was but surety for Madren; that he left this note, with all the other notes held by him on persons in the same county, in the hands of his son, .with authority to receive payment on the same, and that he left the State and remained absent in the State of Indiana for about two years, thus constituting him agent for the collection of the note. It was one of the rights of the surety, which plaintiff knew, to require the creditor to sue the principal on the note or to permit the surety to do so in the creditor’s name, or, in case of refusal, the surety would be discharged. Revision of 1860, §§ 1819, 1820. Hill v. Sherman, 15 Iowa, 365. The right to elect, whether he would sue or permit the surety to do so, rests with the creditor. Ib. But, if. he refuses to do either, when properly requested by the surety, the
The note was in this State in the hands of an agent for collection, and to him the surety had a right to apply and demand that the proper steps be taken to collect the same from the principal, and the agent had authority to act in the premises. The power to collect included this incidental power, and the principal is bound by the acts of his agent, within the scope of his authority.
Now, the findings of the jury show that Lindley called on the agent having the note, with the intention of giving him notice to collect the same by suit against the principal, if he found it necessary, and that he was informed by the agent that the note w'as paid, and that he need give himself no further trouble about it. Lindley relied on this representation, and took no steps to secure himself against loss. The creditor, through his agent, admitted or represented that the debt for which the surety was bound had been paid. The surety acted upon it, and will suffer loss if the creditor shall be allowed to controvert the fact of payment. In such case, he is estopped from so doing. Chambers v. Cochran & Brock, 18 Iowa, 167.
The objections urged to some of the instructions given by the court need not be noticed, as the facts are all specially found by the jury. We may add, however, that they were in accord with the views above expressed.
The judgment of the circuit court is Affirmed.