First National Bank v. Ryerson , 23 Iowa 508 ( 1867 )

Cole, J.

1. promissory mote: notice ment”"£ay" mater. That notice of non-payment may be verbal as well as in writing, is now well settled. 1 Parsons on Notes and Bills, 477, and authorities cited. And it is generally by text writers that notice may be given by any party to the note. Story on Bills, §303; Cowperthwaite v. Sheffield, 1 Sandf. Ch. 447; 3 Kent’s Com. 108; Edwards on Bills, 477. And that the notice was good and sufficient when given by the maker to an indorser, was expressly held in Glasgow v. Pratte, 8 Mo. 336. Mr. Parsons, however, thinks the true rule is, that the notice must be given by a party who could, if he was the owner, recover of some other party to the paper. 1 Parsons on Notes and Bills, 505. The rule, as thus limited, would make a notice by the maker to an indorser insufficient.

s._notice by maker. Without ruling directly as to whether a verbal notice by the maker to the indorser, of the non-payment of the note, is good, we hold, that under the special circumstances of this case, the indorser was bound. If, as testified to by Barlow, he was accommodation maker for Kyerson, then surely Kyerson would be bound to pay, even without notice. But if this is not true, Kyerson may well be held to have waived his right to other notice from the plaintiff, by his request for' renewal, made to Barlow, which was communicated by him to, and accepted by plaintiff, and of which acceptance Kyerson had notice on the evening of the same day, by the leaving of the renewal note for him to sign. Such request and acceptance would operate as a waiver of notice, which he could not avoid by his subsequent refusal to execute the renewal note.

.Reversed.