Green v. Marble

37 Iowa 95

• Court: Supreme Court of Iowa
• Decided: December 15, 1873
• Status: Published

Opinion

Beck, Ch. J.

I. The defendant insists that as the note is not indorsed to plaintiff, and the guaranty is not negotiable, recovery can only be had, if at all, in equity. But as no objection was made in the court below as to the forum in which the suit was prosecuted, an error in that respect will avail the defendant nothing in this court. Rev., §§ 2613, 2616, 2619; Taylor v. Adair & Goff, 22 Iowa, 279; Van Orman v. Merrill, 27 id. 176; Hatch v. Judd, 29 id. 95.

II. The verbal assignment of the note and guaranty transferred to plaintiff the property in the choses in action of which these instruments are the evidence. Plaintiff thus became the real party in interest— the one entitled to the chose in action — and may maintain a suit in his own name to recover upon the guaranty. Rev., § 2757; McDowell v. Bartlett, 11 Iowa, 157; Conyngham v. Smith et al., 16 id. 471; Younker v. Martin, 18 id. 143; Cottle v. Cole, 20 id. 182; Rice v. Savery, 22 id. 170; Pearson v. Cumings, 28 id. 344.

The judgment of the circuit court is sustained by the facts and the law of the case; let it be

Affirmed.