Whitely v. Allen

56 Iowa 224 | Iowa | 1881

Eothrook, J.

The promissoiy note which is the foundation of the action is negotiable, and in the usual form. The indorsement by Allen; the defendant, is as follows: “Pay E. Houck, without notice.”

It is not claimed by the plaintiff that a demand was waived by the indorsement. It seems to be conceded that a waiver of notice does not excuse a demand, and such appears to be the law. Voorhies v. Atlee, 29 Iowa, 49, ancf authorities there-cited.

x. promissory “tintorera1?7 demand. The amount in controversy being less than $100, we are required by the certificate of the trial judge to determine the single question, whether, under the averments ' of the petition, the plaintiffs should be excused' from making demand of payment of the maker of the note.

In Parsons on Notes and Bills, Yol. 1. P. 45., it is saidr “If the maker removes from the place in which he resided and transacted business, to another jurisdiction, between the time a note is made and its maturity, the holder will not be obliged to go out of Ms own State in order to make a demand, either on the maker personally or at his new place of business, or of residence. Whether it will be necessary for the holder to use due diligence to find the maker’s last and usual place of business, or of residence in the place which he has left, is unsettled, the authorities being conflicting. But we consider that it is more in accordance with the rules of law-respecting demand to require that the holder should endeavor to find this last place of business or abode, and present the note there.” The reason of the learned author for this view is “that it is no unfair or unreasonable presumption that •the maker left, at his place of business within the - State, means and arrangements for attending to the business which he began there, and left unfinished there.” A number of cases are cited in a note to the above quotation from the text. Some of these cases hold that the removal of the maker into another State after the execution of the note, and before its maturity, ipso facto, excuses a demand at the place of business or residence of the maker at the time the note was made. Others hold that demand should be made at the last residence or place of business within the State.

The facts of this case do' not' require us to adopt either of these lines of decisions. The petition shows affirmatively that the maker left no one at his last usual place of residence in Iowa “of whom*a demand for payment could be made, and left no one authorized or empowered, or with means to pay said note when due * ' * * * . * If the law requires a demand in all cases, and under all possible cir-'cumstances, it might properly be said that, the rule being in- : flexible, there can be no excuse for want of demand at some place. But the law requires that the holder shall do no more than exercise due diligence to make the demand. It does not require that the maker should be followed into another State, and it seems to us if it affirmatively appears, as it does in this case, that the maker has left behind him no one to represent him or answer for him in any capacity, the law should not require the idle ceremony of a demand upon a mere stranger who may choose to be occupying the late residence, or it may be upon the empty walls of an untenanted house. In our opinion the demurrer to the petition should have been overruled.

Reversed.