
    Allen v. Harrah.
    1. Promissory note! waiver op demand and notice. A promise of payment, by an indorser, with full knowledge of the facts respecting the demand and notice, waives his right to subsequently insist upon their insufficiency.
    2. -demand on one op Two makers. The question as to whether demand upon one of two makers of' a promissory note is sufficient is not definitely determined as an independent proposition, but held so in respect to a note payable in Ohio where presentment was made and notice given, following the ruling of the supreme court of that State upon the question, and applying the rule that the protest and notice should be that of the place of payment.
    
      Appeal from Scott District Court.
    
    Thursday, December 22.
    Action by an indorsee against the indorser (who was the payee) of a joint and several negotiable promissory note, having two makers. Trial to the court, who found for the plaintiff, and rendered judgment accordingly; from which the defendant appeals.
    
      James T. Lane for the appellant:
    I. No legal demand was ever made.
    Demand on one of two makers is not sufficient. Story on Prom. Notes, § 239 and note, 255; 3 Kent (5th ed.), 105 and noto b; Chitty on Bills, etc. (11th ed.), 367; Union Bank of Wymouth v. Willis, 8 Meto. 504; Willis v. Green, 5 Hill, 232; Bank of Ghenango v. Boot, 4 Cow. 126; Shepherd v. Hanley, Conn. 367; Dabney v. Stidger, 4 Smedes and Marsh. 749.
    II. The notice of demand and refusal of payment should have been served upon appellant on the next day after J. C. Conklin, the subsequent indorser, received notice; which would have been, according to the evidence, on the 7th of July, inasmuch as Conklin received his notice on the 6th of July. Miss Tiedeman, the witness, does not state when she delivered the notice and protest to appellant. She fixes the 8th of July as the time when she had one of the conversations, but does not state that she delivered the notice at that time.
    1st. “ The rule is therefore well settled, that each party to a bill or note, whether by indorsement or mere delivery, has, in all oases, until the day after he receives notice, to give or forward notice to his prior indorser.” Chitty on Bills (11th ed.), 489 and note, 491 — side paging.
    2d. “ The holder must prove distinctly, and by p>ositive evidence, that due notice was given.” Id. 480, side paging. And in note per Lord Ellenborough in Lawson v. Sherwood, 1 Stark. 314, “ The witness says two or three days, but the third day would be too late.” As appellee, appellant and Conklin, all lived in the same town, the notice' to' appellant must have been on the 7th of July to be sufficient.
    
      III. It is indispensable that a new promise, to amount to a waiver, should be made with a full knowledge of the want of due notice of the dishonor of the note — otherwise, it is not obligatory upon the party making it. Jones v. Sewage, 6 Wend. 658; Milter v. Hackley, 5 Johns. 385; Bell v. Gardiner, 4 Mann, and G-rang. 11; May v. Oofim, 4 Mass. 341; Warder v. Tucker, 7 id. 449; Ganal Bank v. Bank of ATbemy, 1 Hill, 287; Garlcmd v. Salem Bank, 9 Mass. 408; Leonard v. Gary, 10 Ward. 504; Mills v. Bouse, 2 Litt. 403; Martin v. Lngersóll, 8 Pick. 1; Bidder v. Selin, 8 Serg. & E. 425; Story on Prom. Notes, § 361.
    1st. It is incumbent on the appellee to prove that appellant, at the time of making this promise, knew the facts; that is, that a demand had been made upon both the makers, and a refusal to pay. See authorities cited.
    2d. This promise must be unqualified — unconditioned. Gcembell v. Varney, '12 Iowa, 45; Thornton v. Wynn, 12 Wheat. 183; Ghitty on Bills (11th ed.), 505, top; id. 506, side paging; id. note 1.
    3d. The promise proved, in this case, is manifestly only a conditioned one — “Lf they do not pay, L will.” Is there any thing in such a promise that can be said to imply that he had notice, or that he would absolutely pay it?
    
    IY. The admission sworn to by Mrs. Allen was in reply to the statement that she had consulted counsel who said he was legally liable, and not in reply to a statement that due demand had been made. The statement of appellant that he was not morally bound to pay it, but was legally boimd, because his name was on the back of the note, refers exclusively to his indorsement, and not to his liability in consequence of demand made, and his knowledge of such demand, and is followed by the statement that if they do not pay it he must. In all this, the appellant referred only to his original liability, arising from the single fact of his
    
      indorsing the note, and not to any of the subsequent steps, to fix his liability after maturity.
    
      H JS. (& JS. OaMssen for the appellee:
    1. There is legal demand made, according to the law in Ohio (10 Ohio, 5), and the law of Ohio will govern this case, as far as demand and protest is concerned, according to the well-known principle of law, locus regit actum. The note was made in Mansfield, Ohio; was payable at the residence of the makers in Ohio; was protested in Ohio; hence the law of Ohio has to govern this case.
    “ The reason why the protest and notice should be that of the place of payment is obvious, because it is there that the note is refused payment or dishonored. No one insists that there should be more than one protest, and that should, of course, be in accordance with the requirements of the law of the place where the notary is called to act. That officer cannot be expected to act except in accordance with his own laws. He cannot he presumed or repaired to know foreign lorn, and if one indorser is entitled to require a compliance with the laws of the place of indorsement, all indorsers are equally entitled. By this rule it would seem that pi’otest might be required to be made in one of these States in accordance with, the laws of every other State in the Union.” 2 Parsons on Notes and Bills, 344.
    The unwritten law of Ohio is evidenced by the report above cited (Rev. of 1860, § 4064)* and the applicability of this law is proven by the great authority and cogent reasoning of Parsons. In Ohio, demand and protest upon one of the co-makers is sufficient. Hence, we think that there is sufficient demand and protest in this case.
    2. The appellant was duly notified.
    Gaston G. Allen testified that, on or about the 6th day of July, 1868, he received, through the Citizens National Bank of Davenport, the note and two notary’s protests, from T. J. Jenner, a notary public in Ohio — one for himself and one for W. D. Harrah. He handed the one for ~W. D. Harrah to Louise Tiedeman, and requested her to hand it to ~W. L>. Harrah.
    Louise Tiedeman testifies that, on or about the 8th day of July, 1868, the plaintiff handed her the protest made by T. J. Jenner, a notary public, and requested her to hand it to ~W. D. Harrah, which she did.
    
    The witness undoubtedly intended to say, and was, we think, so understood by the court, that all this was done on or about July 8, 1868. Hence, the court could not doubt, from this testimony, that the defendant received the notary’s protest on or about July 8, 1868. The original note, read in evidence, shows on its face that it is indorsed by W. D. Harrah, G-. G. Allen, J; M. Jolly, cashier, J. O. Conklin, cashier. Conklin was cashier of the Citizens Bank, Jolly of the Ohio, G. G. Allen was the owner of the note. Allen was entitled to notice as well as Harrah. If Harrah received notice on the 8th day of July, 1868, that notice was in time. 2 Parsons on Notes and Bills, 513.
    3. Harrah’s promise to pay the note is binding.
    If demand, protest and' notice are all regular, as we think they are, then we need no new promise to bind the appellant. But even if there were some irregularity, it would be cured by Harrah’s promise to pay the note. The notary’s protest had been handed to him by Miss Tiedeman, at the request of the plaintiff, Allen. He knew that demand was made only upon one of the makers; he knew the time when he was notified. Receiving notice is his own act, which he is presumed to know. The evidence of Miss Tiedeman and Harrah shows that he had full knowledge of the facts, which is sufficient to bind the appellant by his new promise. He is presumed to limow the law if he knows the facts. His promise is, therefore, obligatory under the rule of this court, as laid down in Hughes v. Bowen, 15 Iowa, 449.
    
      The appellant promised to pay, if the makers did not pay. But there is no pretense that the makers have paid, though the note is past due more than two years. The appellant desired only to hold on a short time. The condition, then, under which appellant promised to pay has happened long ago; the makers have not paid; hence, the defendant, under his promise, is bound to pay it.
    For these reasons, we think that there is no error in the finding and decision of the court below. We refer to the words of this court in Hughes v. Bowen, 15 Iowa, 449: “ The court sitting as a jury, to whom the determination, from the evidence, was submitted, having found such fact against defendant, there is no such preponderance of testimony against the correctness of the finding, as to justify interference.”
    The appellant testifies himself: “ I said to Allen I was morally bound to pay the note, but that these parties were good, and if they did not pay I would.”
    Gaston G. Allen tells the story in substantially the same way: “He (the appellant) said the makers of the note were good, and if they did not do it he should have to) but hold on a short time, and see if we could not collect it of them.”
    If the makers were good July 15, 1868, when this conversation took place, why did not Harrah pay the note, have it re-assigned to him, and collect it from the good makers ? Or, why does he not take up the note now, and collect it from the makers, there being no evidence, not even the pretense, that the makers are less solvent now than they were July 15, 1868? Or, is the talk about the solvency of the makers all gammon ? Did hé sell to the plaintiff a worthless note? Did he cheat him out of his purchase-money ? In either ease, natural justice requires that the defeirdant pay the note. He is, as he himself admits, morally bound to indemnify the plaintiff. Substantial justice, then, is rendered to the defendant by the court below. Tbe defendant should not come before this court and ask permission to increase the costs, already too great, for the purpose of avoiding a morally just obligation. The plaintiff hopes this court will not reverse a judgment which renders substantial justice to both parties. He asks that the judgment be affirmed, and that he have his costs refunded.
   Cole, Ch. J.

This cause was tried to the court and no finding of facts was made, but simply a general finding for the plaintiff. This finding must have the same effect as a general verdict of a jury. The testimony is before us. It shows that the note was only presented for payment to one of the two joint and several makers. As to this fact there is no controversy. Whether due notice of the presentment to the one for payment, and his refusal, and the protest therefor, was given to the defendant, is not clear from the testimony. The conflict in the testimony, and the doubt arising thereon, is such as would deter us from setting aside the verdict of a jury, although our own inclination would be to find the other way upon this as an independent fact. But the plaintiff and one witness testify to the promise by defendant to pay the note to plaintiff, after the protest, and after defendant’s knowledge of the facts respecting the demand and notice, and the defendant himself testifies: “ I said to Allen I was morally bound to pay the note, but these parties were good, and if they did not pay it, I would.” The promise as proven is binding, and removes the effect of any negligence in making the demand, or in giving the notice. Sigerson v. Mathews, 20 How. (U. S.) 496; 1 Pars, on Bills and Notes, 594-597, and authorities cited in notes l, m, n, etc.

The general finding for the plaintiff by the court upon the whole evidence is satisfactory to us and effectually disposes of the ease. < But the counsel for appellant has ably presented, and relies with apparent confidence upon, the legal proposition, that a demand upon one of two makers is not sufficient. We have given our attention to this proposition, and find but two cases directly in point. Harris v. Clark, 10 Ohio, 5, was decided in 1840, and the supreme court of Ohio then held that such demand was good and sufficient. The other ease is the Union Bank v. Willis, 8 Met. 504, which was decided in 1844, and holds the contrary doctrine, that such demand is not sufficient. Both courts admit the difficulty in arriving at a satisfactory conclusion, and alike say that they find no reported case directly in point. The supreme court of Massachusetts refer to Shepherd v. Hawley, 1 Conn. 367, in which it was held that where a note payable to two was indorsed by them severally, and in their individual names, each was entitled to notice of nonpayment in order to bind him. The same rule was held in Willis v. Green, 5 Hill, 232. See also Bank of Chenango v. Root, 4 Cow. 126; Sayre v. Friek, 7 Watts & Serg. 383; Dabney v. Stidger, 4 Smedes & Marsh. 749. But these cases rule a different question, and not analogous to the proposition discussed. We confess the force of the argument used in the Ohio case, to wit: that if the rule was different, it would be impossible to charge indorsers when the makers lived so remote from each other as to render presentation for payment on the day of maturity impracticable. But it is said in a note to 1 Pars, on Notes and Bills, 363, that this impracticability might constitute an excuse. But see the same author on page 456 of the same volume, where he says, “ that mere distance is no excuse for non-presentment.” See, also, Story on Prom. Notes, § 239; Chitty on Bills (11th ed.), 367.'

Without assuming definitely to determine, even for ourselves, this question, as a rule for all cases, we should not have much difficulty in disposing of the question for this case in accord with the doctrine of the Ohio supreme court; because the note in this case was payable in Ohio, and the presentment, protest and notice were there made. And it is a very well-recognized rule that the protest and notice should be according to the law of the place of payment, because it is there that the note is refused payment or dishonored. 2 Pars, on Notes and Bills, 3M. The note being payable in Ohio, it may well be presumed that the law of that State entered into the contemplation of the parties to it.

Affirmed.  