Fuller & Warren v. Dingman ( 1875 )

Cole, J. —

Upon the trial the only evidence of the demand, pro-' test and notice was the certificate of the notary, as follows: “Be it known that on the date hereof, I, W. S. Kenworthy, Notary Public for the county of Mahaska, state of Iowa, duly commis-. sioned and qualified, residing-in the city of Oskaloosa, in the said, state, at the request of Bindley, cashiei1, the holder of the original note, which is hereunto attached, presented the same and demanded payment thereon, which was refused. Whereupon, I,, the said notary, at the request aforesaid, have protested, and do hereby solemnly protest, against the maker and indorsers of said note. * * * .*. Np-d^flo.certify that on the day of the date of this protest, I notified the maker and indorsers of the hereunto attached note, to-wit: Lawrence Dingman, in person, and Craig & Alexander, Fuller & Warren and- II. E.' Lowe, cashier, of the within protest, by notice in writing and print, by me signed of the same date of the protest, and which I on the same day mailed to them, the said Craig & Alexander and II. E. Lowe, assistant cashier: The first addressed Oskaloosa, Iowa, and Fuller & Warren and II. E. Lowe, Chicago, Illinois, and to Lawrence Dingman, Oskaloosa, Iowa. In testimony whereof,” etc. * * * *

i. promis•whenpayable piaoe!peoifle<1 It is objected, first, that the certificate of the,.notary does not show where the demand was made, or that it was made at Oskaloosa, where the note was made payable. It is a sufficient answer to this objection that it is not necessary in this country to make the demand at the place where the note is payable; and hence, it is not necessary for the certificate to show that it was made at any place, the rule being that where a note is payable at a particular place, it is not necessary, in order to charge the indorsers, to make the demand there. If the maker or. indorsers can show that they had the money at' such place to pay the note, such fact will discharge them from liability for interest and costs. 1 Pars, on N. & Bills, 308 and 309, and cases cited in notes.

2 _. fle_ noHcefprotest. That a proper demand for payment was made is not denied by the answer. But the appellants claim that the certificate of the notary does not show that they were notinon-payment by the maker; and this because the certificate fails to show that the residences of the several parties were at the places where the notices were addressed to them. This objection is fully met by the affirmative statement in the certificate that, “I notified the maker and indorsers of the hereunto attached note.” See Wamsley v. Rivers, 34 Iowa, 463. The evidence was therefore sufficient to entitle the plaintiff to recover.

Aeeirmed.