107 Iowa 458 | Iowa | 1899
*460 “Be it known, that on the 17th day of February, in the year of our Lord eighteen hundred and ninety-six, at, the request of LI. C. Ohapin, cashier of the Citizens’ Bank of Union, holder of the original note, I, W. IL. Rodwell, notary public in and for the county aforesaid, duly commissioned and qualified, and residing in Union, Iowa, in the county aforesaid, did,, at the close of banking hours of said day, present the annexed note to Alexander’s Meat Market, Munns West’s former place of business, and at the Citizens’ Bank, and demanded payment thereof, which was refused for want of funds of Munns West or W. M. West. Whereupon I, the said notary, at the request aforesaid, did protest, and by these presents do solemnly and publicly protest, as well against the makers and indorser of the said note as against all others whom it may or doth concern, for exchange or re-exchange, and all costs, charges, damages, and interest already incurred, and to be hereinafter incurred, for want of payment of the said note. And I do further certify that, on the same day and year above written, I gave notice to- the makers and indorser of said note of the non-payment of the same, in writing and print, and put into the post office at Union, Iowa, postage prepaid, as follows, to-wit: A notice for Munns West, Union, Iowa; a notice for W. M. West, Union, Iowa; a notice for W. A. Haggin,. Ferguson, Iowa; a notice for City National Bank, collectors,- — each of the above-named places being the reputed places of residence of the persons to> whom the notices were, respectively, directed.
“Fees, etc.:
Protest.................................... $ 75
Demand . . .................................. 50
Notices.................................... 75
Record.................................... 50
Total.................................. $2 50
“In witness whereof I have hereunto subscribed my name and affixed my seal of office.
“W. H. Rodwell, Notary Public.”
II. “Grace shall be allowed upon negotiable bills or notes, payable within this state, according to the principles of the law merchant; and notice of non-acceptance or non-payment or both of such instruments shall be required according to the rules and principles of the common law.” Oode 1873, section 2092. “The general rule may be said to be that the drawers and indorsers of a bill and the indorsers of a note are dicharged from their liability, unless payment of the bill or note be demanded from the party previously bound by it on the date on which it falls due.” 1 Parsons Contract (ed. 1868), p. 292. We first inquire when the note in suit became due. According to its face it fell due February 14, 1896; but defendant contends that because of the provision in the mortgage quoted above, and the bringing of said action to foreclose the mortgage, the.entire indebtedness then became due, and that, as no demand or protest was then made or notice of protest given, he is released from liability on his indorsement. It is, argued that the notes and mortgages are parts of the same transaction, that they must be construed '.together, and that, thus construed, the entire indebtedness became due on default of payment of the part due, and that, by bringing said action, the plaintiff elected to declare the whole debt due. Counsel say: “The law is well settled that, as between the parties to any two instruments executed contemporaneously, they will be construed together, as if they were one instrument, so* far as the facts are concerned,” and they argue as if W. M. West had joined in the mortgage. W. M. West did not join in the mortgage; therefore the rule does not apply to him. Nor did he in any way consent that the note in suit should become due at any other time than that expressed on its face. Py this note the Wests obligated themselves to pay the- amount thereof, “two years after date,” to