Graul v. Strutzel

• Decision Date: 12 June 1880
• Citation: 6 N.W. 119,53 Iowa 712
• Parties: GRAUL v. STRUTZEL AND OTHERS.
• Court: Iowa Supreme Court

53 Iowa 712

6 N.W. 119

GRAUL

v.STRUTZEL AND OTHERS.

Supreme Court of Iowa.

Filed June 12, 1880.

Appeal from Clinton circuit court.

Action upon two promissory notes signed by the defendants Mathias Strutzel, Andrew Peshel and Margaret Strutzel, as makers, and payable to the order of the defendant John Adam. The notes were transferred by John Adam to the plaintiff, and indorsed in blank. The transfer was made after one of the notes became due, and before the maturity of the other. Both of said notes were negotiated at the same time, and in one transaction. The plaintiff claimed that within a reasonable time he made a demand of payment of the makers of the note, which was due when he received the same, and gave the proper notice of non-payment to said John Adam, the indorser. He further claimed that at the time he made the purchase, by a verbal agreement between the plaintiff and the said Adam, the said Adam guarantied the payment of said notes. The defendant Adam denied that any agreement was made guaranteing said notes, and denied that demand of payment was made of the makers, and notice of non-payment given to said defendant, and averred that the transaction was the ordinary transfer of paper by blank indorsement, and that no liability attached to the defendant by reason of the want of the proper demand and notice. The action was aided by attachment, and was commenced before the last-named note became due. There was a trial by jury, which resulted in a verdict and judgment for the defendant. Plaintiff appeals.E. C. Rowell and N. Corning, for appellant.

A. R. Cotton, for appellee.

ROTHROCK, J.

1. It is contended by counsel for the plaintiff that, as to the note which was overdue when it was indorsed, no demand of payment and notice of non-payment to the indorser was necessary. But such is not the rule. A note indorsed after due must be presented to all the makers for payment within a reasonable time, and notice of non-payment must be given to the indorser immediately, which means, at furthest, the next day after default, where the parties reside in the same town. McKenna v. Kirtland, 33 Iowa, 348;Pryor v. Brannan, 38 Iowa, 92;Blake v. McMillan, 33 Iowa, 150;Bank of Red Oak v. Orris, 40 Iowa, 332.

There was no evidence tending to show a demand upon all the makers of the note within a reasonable time, nor at any time. It does not appear that the plaintiffs mailed written notices to the makers, and that two of them called upon him in a day or two afterwards. All of the parties, as far as appears, resided in the same neighborhood. It does not appear that the note was, at any time, presented for payment personally to all the makers. This must be done to charge the indorser, or the presentment must be made at the place of residence or business of the makers. Hartford Bank v. Green, Thomas & Co. 11 Iowa, 476; Edmund on Bills and Notes, 485.

The note which was indorsed before due was not at any time presented for payment to the makers, and notice of non-payment given to the indorser, but it is contended that as this action was pending when the note became due no demand and notice were necessary. We know of no way in which the liability of an ordinary indorser of negotiable paper can be fixed but by pursuing the rules prescribed by the law merchant. These rules require a demand to be made upon some one of the days of grace, and notice to be given to the indorser immediately, where the indorsement is made before maturity.

2. The evidence shows that one Bonaritz, as agent of Adams, negotiated the notes to the plaintiff through one Van Zant, agent of the plaintiff. The court, in its instructions to the jury, ignored the question of a verbal guaranty of the notes, and refused instructions asked by the plaintiff upon that...