Bank of Red Oak v. Orvis

Supreme Court of Iowa

Bank of Red Oak v. Orvis

42 Iowa 691

DecidedApril 6, 1876

StatusPublished

This text of 42 Iowa 691 (Bank of Red Oak v. Orvis) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bank of Red Oak v. Orvis, 42 Iowa 691 (iowa 1876).

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Opinion

Beck, J.-

1. PROMISSORY note: demand where it may be made. I. It is first insisted that the evidence fails to show a demand upon the makers. We think the evidence sufficiently supports the finding of the. court to the effect that the demand was made at the place of residence — the home — of both makers. One was not at home, but as the demand was -made at his house, and he had no place of business, it was sufficient. 1 Parsons on Notes and Bills,'423.

II. It is next insisted that there was no evidence to show the indorsement of the note by Fisher. The amended abstract shows that the note was indorsed and offered in evidence [692]*692with the indorsement. Nothing more was required to establish the fact now questioned.

III. It is said that the residence of the indorser was not established. Indeed it was not disputed at the trial, and the evidence amply supports the court’s finding on this point.

2. ____: protesr: evidence. IY. It is also urged that there was no proof that the protest was made at the request of the owner or holder of the note. The certificate of protest shows that it was made at the request of the-National State Rank of Oskaloosa. In the absence of any proof to the contrary, the presuniption will prevail that this bank had the right to request the protest. And, still further, as no such question, in any shape, was raised in the court below, we will not consider it when first made here.

3.____: assignment of mortgage. Y. Defendant Fisher insists that, as the assignment on the mortgage given to secure the note is special, he is not bound on the indorsement of the note. We fail to see the force of this position. His liability, which is sought to be enforced in this suit, is upon the indorsement on the note. There is no pretense that this liability, as indorser of the note, was to be released or modified by the assignment of the mortgage. Whatever its terms were, not being intended to relieve his liability on the indorsement of the note, he must abide by the contract created by the indorsement.

No other points are presented in the case.

Affirmed.

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Beck, J.-

1. PROMISSORY note: demand where it may be made. I. It is first insisted that the evidence fails to show a demand upon the makers. We think the evidence sufficiently supports the finding of the. court to the effect that the demand was made at the place of residence — the home — of both makers. One was not at home, but as the demand was -made at his house, and he had no place of business, it was sufficient. 1 Parsons on Notes and Bills,'423.

II. It is next insisted that there was no evidence to show the indorsement of the note by Fisher. The amended abstract shows that the note was indorsed and offered in evidence [692]*692with the indorsement. Nothing more was required to establish the fact now questioned.

III. It is said that the residence of the indorser was not established. Indeed it was not disputed at the trial, and the evidence amply supports the court’s finding on this point.

2. ____: protesr: evidence. IY. It is also urged that there was no proof that the protest was made at the request of the owner or holder of the note. The certificate of protest shows that it was made at the request of the-National State Rank of Oskaloosa. In the absence of any proof to the contrary, the presuniption will prevail that this bank had the right to request the protest. And, still further, as no such question, in any shape, was raised in the court below, we will not consider it when first made here.

3.____: assignment of mortgage. Y. Defendant Fisher insists that, as the assignment on the mortgage given to secure the note is special, he is not bound on the indorsement of the note. We fail to see the force of this position. His liability, which is sought to be enforced in this suit, is upon the indorsement on the note. There is no pretense that this liability, as indorser of the note, was to be released or modified by the assignment of the mortgage. Whatever its terms were, not being intended to relieve his liability on the indorsement of the note, he must abide by the contract created by the indorsement.

No other points are presented in the case.

Affirmed.

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Bluebook (online)

42 Iowa 691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-red-oak-v-orvis-iowa-1876.