Philips v. Dippo

• Decision Date: 17 December 1894
• Citation: 93 Iowa 35,61 N.W. 216
• Parties: PHILIPS v. DIPPO.
• Court: Iowa Supreme Court

93 Iowa 35

61 N.W. 216

PHILIPS

v.DIPPO.

Supreme Court of Iowa.

Dec. 17, 1894.

Appeal from district court, Tama county; J. R. Caldwell, Judge.

Action at law upon a negotiable promissory note. A demurrer to the petition was overruled, and, the defendant electing to stand upon his demurrer, judgment was rendered in favor of the plaintiff for the amount which appeared to be due on the note. The defendant appeals. Affirmed.Wm. H. Stivers, for appellant.

Vincel Drahos, for appellee.

ROBINSON, J.

The note in suit was made payable to defendant or bearer, and contains the following: “The makers, indorsers, and guarantors of this note * * * hereby waive presentment for payment, notice of nonpayment, protest, and notice of protest, and diligence in bringing suit against any party thereto.” Before the maturity of the note, the defendant wrote his name thereon, and transferred it, and it is now owned by the plaintiff. The grounds of the demurrer are that the defendant is an indorser of the note, and the petition fails to show that the note was duly presented for payment, that payment was refused, and that the defendant was notified of the nonpayment. The question we are required to determine is whether the waiver of presentment for payment, protest, and notice of nonpayment, contained in the body of the note, is effectual as against an indorser in blank, who was also the payee. It is contended by appellant that such an indorsement is a new, independent written contract between the indorser and indorsee, with conditions implied by law, and that it has no reference to a provision in the note of the character of that in question. It was said in Davis v. Miller (Iowa) 55 N. W. 90, that “an indorsement constitutes a new agreement with the indorsee, by which the indorser agrees that the instrument will be paid at maturity, and, if it is not so paid upon proper demand, that he will pay it if duly notified of the default”; and it was held that the blank indorsement of a negotiable promissory note payable by its terms at a designated place did not require the indorser, when his liability became fixed, to pay the note at that place. The reason for that conclusion was that such indorsements are governed by the law of the place where they are made, and create obligations which are to be performed there, or generally, and not at a place specified. In other words, it was held that implied obligations created by the blank indorsement relate to the time and amount, but not to the place, of payment. There was nothing in the body of the note under consideration in that case which...