Blake v. McMillen

Supreme Court of Iowa

Blake v. McMillen

22 Iowa 358

CourtSupreme Court of Iowa

DecidedJune 15, 1867

StatusPublished

Cited by5 cases

This text of 22 Iowa 358 (Blake v. McMillen) 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

Blake v. McMillen, 22 Iowa 358 (iowa 1867).

Pincite

Opinion

Dillon, J.

1. Bills and notes negotiable : presentmentto joint makers. -This judgment must be reversed. The defendant was sued as an ordinary indorser, and sought to be charged as such. His contract as . ^ .at indorser, was that lie would pay, if the ' x *J makers of the note should upon due demand A refuse to pay, and he should he duly notified of the dishonor. His contract was not that he would thus pay if demand should be made of part of the makers only. If it be admitted, as was claimed by plaintiff, that the death of one of the makers would excuse demand upon his personal representative, surely the plaintiff should have established such death by evidence, plaintiff’s allegation in this behalf having been put in issue by the answer. See 1 Parson’s N. & B., 363, 364, 445.

The note was not signed by the makers as partners, nor was any copartnership relation between them shown. Nor did it appear that they resided at different and distant parts of the State, so as to render it impossible to make demand on both on the same day.

[360]*360As tbe case stood, plaintiff’s failure to present the note to both makers was wholly unexcused. It is, therefore, unnecessary to consider what facts will dispense with the necessity of a presentment to both. We cannot affirm the judgment without holding that a presentment to one only of the makers of a joint note, will charge an indorsee though the failure to present to the others is wholly unexcused. Such is not the law-merchant, according to the best considered view of this subject. 1 Parsons N. & B., 362, 363 and notes. And our statute adopts the law-merchant. Kev., §§ 1794, 1813.

The law, in this respect, is not changed by certain other provisions of the statute, ignoring, for many purposes, the technical distinctions of the common law, between joint, and joint and several liabilities. Bev. §§ 2764, 2841.

The judgment below is reversed, and the cause remanded.

Peversed.

Free access — add to your briefcase to read the full text and ask questions with AI

Dillon, J.

1. Bills and notes negotiable : presentmentto joint makers. -This judgment must be reversed. The defendant was sued as an ordinary indorser, and sought to be charged as such. His contract as . ^ .at indorser, was that lie would pay, if the ' x *J makers of the note should upon due demand A refuse to pay, and he should he duly notified of the dishonor. His contract was not that he would thus pay if demand should be made of part of the makers only. If it be admitted, as was claimed by plaintiff, that the death of one of the makers would excuse demand upon his personal representative, surely the plaintiff should have established such death by evidence, plaintiff’s allegation in this behalf having been put in issue by the answer. See 1 Parson’s N. & B., 363, 364, 445.

The note was not signed by the makers as partners, nor was any copartnership relation between them shown. Nor did it appear that they resided at different and distant parts of the State, so as to render it impossible to make demand on both on the same day.

[360]*360As tbe case stood, plaintiff’s failure to present the note to both makers was wholly unexcused. It is, therefore, unnecessary to consider what facts will dispense with the necessity of a presentment to both. We cannot affirm the judgment without holding that a presentment to one only of the makers of a joint note, will charge an indorsee though the failure to present to the others is wholly unexcused. Such is not the law-merchant, according to the best considered view of this subject. 1 Parsons N. & B., 362, 363 and notes. And our statute adopts the law-merchant. Kev., §§ 1794, 1813.

The law, in this respect, is not changed by certain other provisions of the statute, ignoring, for many purposes, the technical distinctions of the common law, between joint, and joint and several liabilities. Bev. §§ 2764, 2841.

The judgment below is reversed, and the cause remanded.

Peversed.

Cite This Page — Counsel Stack

Bluebook (online)

22 Iowa 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blake-v-mcmillen-iowa-1867.

Opinion

Related

Cite This Page — Counsel Stack