Warner v. Beem

| Iowa | Apr 26, 1873

Cole, J.

— The notes sued on are not payable at any fixed time; they are payable at “ such time or times as the directors of said company may agreeably to the charter and by-laws require.” * * * Since the time of payment may be rendered certain, by the action of the directors, they may be regarded as possessing the requisite certainty to constitute them promissory notes ; but they are not by their terms negotiable. There was no proof of any order or requirement by the directors of the company for the payment of any portion of either of the notes. In the absence of such proof, the notes are not due and the plaintiff cannot, of course, recover. In the case of The Am. Ins. Co. v. Schmidt, 19 Iowa, 502" court="Iowa" date_filed="1865-01-16" href="https://app.midpage.ai/document/american-insurance-v-schmidt-7093377?utm_source=webapp" opinion_id="7093377">19 Iowa, 502, where such a note was given, and the charter of the company made such notes capital stock and liable for losses and expenses, it was held that, in order to recover, it was not only necessary to show the requirement of payment by the directors, but also that losses and expenses had occurred. The cases of White v. Haight, 16 N.Y. 310" court="NY" date_filed="1857-12-05" href="https://app.midpage.ai/document/white-v--haight-3621978?utm_source=webapp" opinion_id="3621978">16 N. Y. 310, and Howland v. Edmonds, 24 id. 307, are unlike this case because in those cases given to make up the capital stock, were such notes, by the fifth section of the charter of the companies, made payable absolutely, notwithstanding their language.

Affirmed.