Childs v. Horr , 1 Iowa 432 ( 1855 )

Wright, C. J.

Respondents now claim that upon this bill and answer, the bill should have been dismissed, and a decree entered in their favor. W e think otherwise, however. The question does not arise, whether the second note was, or was not, a satisfaction and discharge in part, of the original promise or indebtedness. There can be no pretence that the respondents were, under the circumstances stated, either in the bill or answer, precluded from suing on the original notes, as against Hawthorne, if not against Childs. As the case now stands, these questions do not become material for our consideration. The answer, of course, is taken as true, and from it, we think it clear, that the $375 note was delivered upon a contract that was not complete at the time, and never has since then been executed. The note was delivered upon condition, that Hawthorne could be induced to secure the other half, which agreement, to use the words of the answer, “ has never been fully carried out.” What right,, then, had the respondents to prosecute the original notes, and at the same time retain in their possession and control, the last one, which they admit was only to be taken and beld as security, eyen in tbe event that Hawthorne secured the balance. The condition on'which they were to hold the note as security, if not as satisfaction, has never transpired; and they have no right to retain the same, but should deliver it to the maker.

The case of Cumber v. Ware, 1 Strang, 426 (found in 1 Smith’s Leading Gases, 398, marg.), referred to by appellants; does not decide the question involved in this case, but refers alone to the effect of the promising to pay a smaller sum in satisfaction or .discharge of a larger subsisting liability. So with the case of Cole v. Socket, 1 Hill, 516. Neither of them hold that a note taken under the circumstances disclosed in this answer, or even analogous thereto, can be retained by the payee, against the maker’s objection. And indeed, we are unable to see any fair or plausible reason, for holding that respondents should retain the note. It came into their hands, in effect, to hold and become their property, when a certain other thing was done. Until then, it was not theirs. They have given up nothing, and paid nothing, for it, and cannot be prejudiced by being required to part with the note.

Decree affirmed.