Sanbourn v. Smith & White

44 Iowa 152

• Court: Supreme Court of Iowa
• Decided: October 5, 1876
• Status: Published

Opinion

Day, J.

í vende: S1Cof°de-ifi" posit. Section 2581 of the Code provides: “When, by its terms, a written contract is to be performed in any particular place; action for breach thereof may be brought county wherein such place is situated.” We the fair and reasonable construction of the writing sued on is that, by its terms, it provides for payment in Atlantic. It is proper to consider the situation and surroundings of the parties, as set forth in the petition, in construing the contract which they have made.

The defendants were doing a banking business in Atlantic, Cass county. The plaintiff deposited $200 in the bank. A certificate was issued, stating that the sum deposited was due Sept. 9, 1875, on return of the certificate, properly indorsed. It is to be observed that mere lapse of time does not render the money due, but the return of the certificate is necessary to that end. Now, what did the parties mean by the return of the certificate? Evidently they meant the bringing of it back to the place where it was issued. Neither party could have understood that it would be a compliance with the terms of the certificate to present it for payment at Hamburg, in Eremont county, where Smith resided, or in Chicago, where White resided, when the writing, according to its terms, was presentable for payment.

If, then, the writing was to be returned for payment to the bank, it was, by its terms, made payable there, and the action was properly commenced in Cass county.

In our opinion, the order of the court, changing the place of trial, is erroneous. Oliver v. Bass, 30 Iowa, 90; Haugen & Co. v. McCarthey, 34 Id., 415.

Reversed.