Nylander v. Nylander

• Citation: 268 N.W. 7,221 Iowa 1358
• Decision Date: 19 June 1936
• Docket Number: 43505.
• Parties: NYLANDER v. NYLANDER.
• Court: United States State Supreme Court of Iowa

268 N.W. 7

221 Iowa 1358

NYLANDER v. NYLANDER.

No. 43505.

Supreme Court of Iowa.

June 19, 1936

Appeal from District Court, Boone County; Sherwood A. Clock, Judge.

Plaintiff brought suit on a promissory note. The defendant demurred to the petition. The demurrer was overruled. Defendant elected to stand on the demurrer, and judgment was entered for the plaintiff. Defendant appeals.

Affirmed.

F. W Ganoe, of Boone, for appellant.

Doran & Doran, of Boone, for appellee.

STIGER, Justice.

On September 9, 1935, the plaintiff brought her action on a promissory note, given by the defendant, which reads as follows:

" $700.50 July 16, 1925

Wallace E. Nylander after date, for value received, I promise to pay to the Order of Miss Anna Nylander Seven Hundred and Fifty Dollars .... Dollars with interest from __-- until paid at 5 per cent. per annum, payable annually, defaulting interest to draw the same rate of interest as principal, and pay a reasonable attorney's fee if action is commenced hereon, and consent that a Justice of the Peace may have jurisdiction to the amount of three hundred dollars, and hereby severally waive presentment for payment, notice of nonpayment, protest and notice of protest and diligence in bringing suit against any part thereto, and sureties consent that time of payment be extended without notice thereof.

P. O. the term of five years

Wallace E. Nylander

No. __--."

The defendant demurred to the petition on the ground " that the note on which said action is based and the pleading, to-wit, the petition of Plaintiff incorporating said note, shows on its face that the cause of action is barred by the statute of limitations, in that the same is a demand note and more than ten (10) years have elapsed from the date of its execution and a demand note is due immediately upon execution."

In overruling the demurrer, the trial court stated:

" Plaintiff's action was based upon a promissory note which states: ‘ Wallace E. Nylander, after date, for value received, I promise to pay,’ and in one corner of the note are the words: ‘ the term of five years.’

Giving the plaintiff the most favorable construction of her petition, the Court must find that there is a due date expressed in said note, and that the statute of limitations has not run thereon.

Therefore the defendant's demurrer is overruled.

In making these findings and this ruling, the Court does not preclude the defendant from his right to plead the statute of limitations by way of answer and to show that said statute has run."

The defendant elected to stand on the demurrer, and judgment was entered on the note.

The defendant appeals from the ruling and the judgment of the court.

Defendant contends: (1) That the words " the term of five years" written opposite the signature of the maker constitute no part of the note; (2) that said instrument is a demand note; (3) that it appears on the face of the petition that the action is barred by the statute of limitations.

If this is a demand note, it was payable upon the date of its execution and is barred by the statute of limitations. If the note is payable at a fixed or determinable future time, that is, as claimed by plaintiff, payable five years from date, it is not barred by the statute.

Code, § 9467, provides that an instrument is payable on demand (2) in which no time for payment is expressed.

Code, § 9464, provides that an instrument is payable at a determinable future time which is expressed to be payable (1) at a fixed period after date, etc.

If there is a fixed due date in the instrument, it is not payable on demand.

A note must be construed as a whole in the same manner as other written instruments. It is fundamental that all words used in written instruments must be given effect, if reasonably possible, and are to be given their ordinary and natural meaning.

In the case of Elmore v. Higgins, 20 Iowa 250, there was a memorandum indorsement on the back of the note on which suit was brought. Mr. Justice Dillon, speaking for the court, states: " That the contemporary indorsement on the back of the note became part of it, binding upon the parties and qualifying and restricting their contract * * * and that in construing the contract, the note and indorsement * * * are to be taken by the corners, and effect given to every expression, if this can fairly be done, * * * are propositions elementary in their character." See Heaton v. Ainley, 108 Iowa 112, 78 N.W. 798; Berenson v. London, etc., F. Insurance Co., 201 Mass. 172, 87 N.E. 687.

The note states that, " after date, for value received, I promise to pay," etc., the words " the term of five...