Peck v. Schick & Co. , 50 Iowa 281 ( 1878 )

Rothrock, Ch. J.

i piEADtw®: negotiable1: paper. I. We have been somewhat particular in stating the substance of all the pleadings because it is strenuously argued by counsel for appellants that under the pleadings the referee was not warranted finding that the defendants, with a full knowledge of the want of notice of non-payment, expressly waived the same, and unconditionally promised to pay the full' amount of the order. It is urged that the plaintiff, by his petition and all the amendments thereto, pleaded that he made demand and gave notice of non-payment, and, therefore, cannot recover upon a waiver and promise to pay by defendants.

It is true that a party can only recover upon the cause of action set forth in his petition, and he cannot under our systern of pleading, in an action against the indorser of a note, aver demand and notice, and then recover thereunder upon proof of facts amounting to a waiver of them. Lumbert & Co. v. Palmer, 29 Iowa, 104, and authorities there cited. But, while it is true our practice requires that the petition must contain a statement of the facts constituting the cause of action, yet it is not required that such statement should be certain to a certain intent in every particular. In the last amendment to the petition in this case it is distinctly averred that the defendants waived the want of due notice, and this is pleading, inferentially at least, that no notice was given. To this there is a general denial, and, as showing that the defendants knew that plaintiff, by his amendment, relied upon the waiver of notice, and were, therefore, advised of what was claimed, the answer sets up that plaintiff should not claim a waiver of demand and notice, because he alleges that there was demand and notice.

It seems that the plaintiff relied upon both grounds, and this he might have done in the first instance by stating his cause of action in separate counts. Pearson v. The Milwaukee & St. Paul R. Co., 45 Iowa, 497. He pleaded it by amendment, presumably, to make the pleadings conform to the proof, as provided in section 2689 of the Code.

We think the pleading as to the waiver of notice and promise to pay, with a full knowledge of the facts, was sufficient, especially after verdict. If too general and indefinite in its statements of facts it should have be.en assailed by a motion for a more specific statement.

2 kefebee: practice. II. It is further urged that the finding of the referee that defendants waived notice of non-payment and promised to Pay or(ler is n°fc justified by the facts found foy ^g referee> The record doos not contain the evidence. The referee filed a supplemental report setting forth that an agreement was made between the parties at a certain time and place that defendants would pay the orderj and that he found from the testimony that both parties “understood, at the-time the agreement to take up the order was made, tliat there had been no notice of nonpayment given in time, unless the notice at the time the order was received was notice. ” It will be seen from this extract from the report that the referee did not undertake to report the evidence. In the absence of the evidence we must accept the report as correct as to the facts found.

III. The appellee claims that the order in question is not a negotiable instrument, and that the defendants would be liable without demand and notice. The instrument is in form negotiable. Whether the water-power company was such corporation as was authorized to draw negotiable paper we are not called upon to determine, because the record does not disclose for what purpose the corporation was organized.

It seems to have been assumed by the referee that the instrument was negotiable, and the cause was tried by the parties upon that theory, and there we will let it rest.

Affirmed.