Rindskoff Bros. v. Barrett

11 Iowa 172

Opinions

Wris-ut, J.

This action was instituted upon an instrument in writing, styled a promissory note, dated April 13th 1857, due July 1st, 1858, payable to Geo. S. Eaton or order, for five hundredjlollars in currency, at the Banking House of White, Cook & Co., in the City of Burlington, and signed by the defendant.

The question made by counsel, and the only one we have to determine, is, whether this instrument is negotiable with all the incidents of negotiability, so as' to cut off defenses made by the maker against the assignee thereof.

There is no good ground for claiming the instrument to be negotiable, as a promisory note, at common law. It is payable in currency and not in money and is not therefore a promissory note; Irvine v. Lowry, 14 Peters 299; Edwards on B. & N. 140. Has our statute changed this rule ? The section relied upon is, that such instruments promising' to pay a sum of money or property, are negotiable with all the incidents of negotiability, whenever it is manifest from their terms that such was the intent of the maker, but the use of the words “order,” or “bearer,” alone will not manifest such intent. Section .950.

There is nothing in this case, other than the word “order’ which seems to manifest the intent of the maker to make the intsrumont negotiable, unless it is the fact that it is made payable at a Banking House. And this in our opinion, independent of some custom, is not sufficient. If it be claimed that such instruments are negotiable, and understood to be so, under an existing custom, such custom should be averred and proved. But without more than is shown in this instance, we cannot conclude that this fact is sufficient to manifest the intent to make the instrument negotiable, within the meaning of the section cited¹.

Footnotes

1

. See Claw v. Cedar County, 5 Iowa 52; Merchants & Mechanics Bank of Chicago v. Hewett, 3 Ib. 101; Peddicord & Wyman v. Whittam, 9 Ib. 471.