Dudman v. Earl

Rothrock, Ch. J.

1. appeal: judgment: payment of. I. It appears from the abstract that after ■ the decision of the court was- announced, rendering judgment against the defendants for the amount tendered, and ordering them to bring said money (which was yet in the bank) into court at the close of the trial, and before judgment was entered, the defendants, in obedience to said order, deposited the money with the clerk, for plaintiff, “and plaintiff received the same.”

The defendants insist that the plaintiff waived his rights to appeal by accepting the tender. A motion is submitted with the case to dismiss the appeal upon this ground. The abstract does not state when the plaintiff received thp money.

It appears from an affidavit filed by one of the counsel for the appellant in resistance of the motion, that the money was not received until after the judgment had been announced by the court, and not until after the bill of exceptions had been signed by the judge, and not with any intent to waive the plaintiff’s right to insist that the court erred in refusing to render judgment for interest after the 24th day of January, 1876, and in rendering judgment against plaintiff for costs.

We think, under these circumstances, the plaintiff did not waive his right to appeal, although he did accept the money before'judgment was formally entered up by the clerk.

He could never recover a less sum than the amount of the tender, and might, upon appeal, be entitled to more. When it was adjudged by the court that he was entitled to this amount, and his further claim was denied him, and the money was paid into the court for his use, he could not be compelled to allow the sum paid in to remain idle until he could, upon appeal, try the only questions in dispute upon the facts, whether he should have the interest he claimed, and whether he was liable for the costs of the action.

The case would have been different if he had accepted the tender before or upon the trial in the court below. The motion to dismiss the appeal must be overruled.

2. promissory note: when instrument is lost; indemnity bond. II. The principal question in the case is, had the defendants the right to demand indemnity as a condition to the payment of the note ? It appears that there was an indorsement to pay to the order of the cashier of the First National Bank of Ottumwa. This, was a special indorsement, and no one could acquire any rightful property in the note by its transfer. It could only be transferred by a forgery, and such an indorsement would confer no legal right. In other words, the note when lost was not a negotiable instrument, and if the defendants had paid it to the plaintiff, who was the real owner, no action could afterward have been maintained by any one against them.

In Parsons on Notes and Bills, volume 2, page 303, it is said: “But in some suits upon lost instruments there is absolutely no risk run by the defendant, and hence no call for indemnity. Thus, if the contents of the note he proved, and it he shown that the defendant is protected under the statute of limitations from future liability, no indemnity can be demanded. Eor the same reason no bond of indemnity is generally given in this country upon a non-negotiable note, or a negotiable note if it he a note specially indorsed.”

A large number of authorities are cited by the learned ■author in support of the rule announced in the text.

Following that rule the defendants had no right to demand indemnity when they were advised of the loss of the note, and that it had been specially indorsed. The tender made was coupled with this demand, and for that reason it was unavailing to stop the accruing of interest.

We think the court should have rendered judgment for the plaintiff for the full amount of the note, including interest, and for costs.

The judgment will he reversed, and the cause remanded for further proceedings, not inconsistent with this opinion.

Reversed.