Kirby v. Landis
Supreme Court of Iowa
Appeal from Marshall Gi/reuit Gou/rt. Action upon a surrendered promissory note, signed by all the defendants as joint makers. The defendants S. M. and W. F. Miller were in fact merely sureties. At the time of the maturity of the note the principal, Landis, paid a part and applied for an extension on the balance. The extension was granted on condition that Landis would give a new note signed by the same persons.
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Appeal from Marshall Gi/reuit Gou/rt. Action upon a surrendered promissory note, signed by all the defendants as joint makers. The defendants S. M. and W. F. Miller were in fact merely sureties. At the time of the maturity of the note the principal, Landis, paid a part and applied for an extension on the balance. The extension was granted on condition that Landis would give a new note signed by the same persons. Afterward Landis presented a note for the balance signed by himself, and purporting to be signed by the other makers of the original note, S. M. Miller and W. F. Miller. Their…
1Opinion of the Court
Adams, Ch. J.
1. PROMISSOsurew>™vben sraMn^dory note-The surrender of the note having been procured by fraud, we think that the plaintiff should be allowed to recover upon it, not only against the t ’ J a principal but the sureties, unless the plaintiff, by Elding the substituted note, without informing the sureties of the fraud after it was discovered, had waived the fraud, or unless the sureties were prejudiced by the surrender. The sureties do not aver a waiver of the fraud, but they do aver, in substance, we think, that they were prejudiced by the surrender. The precise language of the…
2Cited by5 opinions
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- Hubbard v. HartSupreme Court of Iowa · 1887
- Reints v. UhlenhoppSupreme Court of Iowa · 1910
- Dwinnell v. McKibbenSupreme Court of Iowa · 1895
- Pioneer Title Co. v. Housing Associates, Inc.Oregon Supreme Court · 1978