Hughes v. Bowen , 15 Iowa 446 ( 1863 )

Wright, Ch. J.

Several errors are assigned, but appellant’s counsel concede that the substantial inquiry is whether defendant was properly held liable upon his subsequent promise as indorser, he contending that such subsequent promise was ma,de without consideration, and without knowledge of the fact that he had been discharged from his liability, by the laches of plaintiff, as holder or indorser of the notes. Our attention is also called to the distinction recognized in Tebbetts v. Dowd, 23 Wend., 378, and other authorities, between those cases where due presentment and notice are presumed, upon the proof of a subsequent promise to pay where laches are not shown, and those in which laches being affirmatively shown, a subsequent promise to pay is regarded as a waiver of the laches. The case before usj it is claimed, falls under the latter class, and that defendant is therefore not liable, unless the subsequent promise was made with full knowledge of the facts, or of The fact that he had been discharged by the plaintiff’s laches.

Thus far, counsel do not differ, but plaintiff insists that the Court was justified, under the testimony, in finding that the promise was made with such knowledge as makes the defendant liable; and in this view we concur.

To establish this knowledge it was not necessary to show that Bowen knew, as matter of law, that he was discharged, nor that he had clear, distinct and full knowledge of all that plaintiff had done or omitted to do. With great justice it is said, that knowledge may be proved in the same manner, and by the same evidence, in this matter, as in any other. 1 Parsons Notes and Bills, 602. Knowledge may be inferred from a variety of circumstances, without requiring clear and affirmative proof. It is the fact which is to be established, and under the same rules of evidence which apply to knowledge in any other cases. Martin v. Winslow, 2 Mason, 241; Hopley v. Dufresne, 15 East., 275 ; Edwards on Bills, 653, 654. And let it be remembered that the inquiry is not whether he knew that there must be a demand and notice, but whether the Court was justified in inferring, from all tbe circumstances, that he bad knowledge of tbe facts wbicb, in law, discharged him. He. is presumed to know tbe law if be knew tbe facts. Schmidt v. Radcliffe, 4 Strob., 296; Martin v. Ingersoll, 8 Pick., 1.

We are not to be understood as bolding, as might possibly be inferred from at least one of tbe cases last cited, that proof of a subsequent promise justifies the inference of the fact that regular notice bad been given, nor that it was waived. But the case is put upon tbe ground that tbe court, sitting, is a jury, to whom tbe determination of tbe fact, from tbe evidence, was submitted; having found such fact against defendant, there is no such preponderance of testimony against tbe correctness of tbe finding as to justify our interference. Tbe evidence warranting the finding is contained in defendant’s letter, written to plaintiff soon after tbe last note matured, in wbicb be says be shall “ claim no exemption from responsibility, on account of any indulgence” given to tbe maker, and that be will bold himself responsible for tbe payment of tbe note, in case tbe mortgage or tbe real estate (given to secure said notes) should fail to satisfy the same, in tbe further fact that the parties bad an interview before this letter was written, and within a few days after tbe notes were due, in which tbe matter was discussed, and defendant told plaintiff to bold on, that be (defendant) might secure himself.

Add to these considerations tbe fact that tbe parties resided in tbe same place, that tbe maker was himself making efforts to obtain further time, and - was instrumental in obtaining the- letter referred to from defendant ; that the parties frequently talked about tbe matter, and discussed tbe probabilities of being able to make tbe money out of the mortgaged property; that more than one year after tbe said letter was written, defendant paid a portion of said notes; that at no time was there any suggestion that be bad acted without due knowledge of tbe requisite facts, and it seems to us that the judgment was fully-warranted, or at least that it was not so clearly unwarranted as to justify a new trial.

We need do no more than remark that the indorser in such cases is not held by his promise as a matter of contract (for in that event a consideration might be wanted), but upon the ground that the promise amounts to a waiver of the objection that the proper steps had not been taken to charge him as such indorser. The question of consideration to support the promise therefore does not arise.

Affirmed.