Leas, Harsh & Sinclair v. White
Supreme Court of Iowa
Appeal from Polls District Court. The petition, in equity, ayers that on the 29tb of December, 1859, complainants sold to respondent, 'White, a certain lot of land, describing it; that as a part of the consideration said respondent sold and assigned to them a noté of one Wheeler, and a pretended mortgage accompanying the same, which note was dated October 23d, 1856, and due in sixteen months from date, for the sum of $2,000; that said respondent, for the purpose of securing…
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Appeal from Polls District Court. The petition, in equity, ayers that on the 29tb of December, 1859, complainants sold to respondent, 'White, a certain lot of land, describing it; that as a part of the consideration said respondent sold and assigned to them a noté of one Wheeler, and a pretended mortgage accompanying the same, which note was dated October 23d, 1856, and due in sixteen months from date, for the sum of $2,000; that said respondent, for the purpose of securing the pay•ment of said note, executed a mortgage upon the premises so sold to him by complainants, reciting that the…
1Opinion of the CourtWright, J.
The demurrer should have been sustained. It was complainant’s duty, before respondent wpuld be liable on his contract, to use due diligence to collect the Wheeler note, unless released therefrom by some valid excuse, justifying the non-performance. A mere averment that they “could not, with due diligence, collect said note in one year from said date ” is not Sufficient; but that diligence was used, and what its character, should be clearly stated and shown. Or if it is claimed that they were excused for the non-exercise of diligence, then such excuse should be stated. This seems to have been…
2Cases cited2 opinions
- Wood v. UnderhillSupreme Court of the United States · 1846
- Hoyt v. ThompsonThe Superior Court of New York City · 1850
3Cited by2 opinions
- Holloway v. GriffithSupreme Court of Iowa · 1871
- McIntyre v. American Surety Co.Supreme Court of Kansas · 1916