Cook v. City of Burlington.

cided by the majority, while it is the only question argued by counsel, does not, it appears to me, properly arise from the record, and could not properly have been decided by the court below.

The appellants, in maintaining that the stock is not liable to taxation, contend that it is not for the reason that the property of the corporation had been taxed to the corporation in Iowa, and that the taxation of the stock under the same sovereignty would be double taxation, and not allowable. The majority hold that such taxation would not be double taxation in such sense that it is not allowable. Upon this question I do not feel called upon to express any opinion. A part of the bridge is in the State of Illinois and not taxable in Iowa. Dunleith & Dubuque Bridge Co. v. Dubuque County, 55 Iowa. 564. It is true one witness testified that "the taxes on the bridge had been assessed at Dubuque and paid in Dubuque county." But I cannot presume that the witness meant that any more of the bridge was taxed at Dubuque than was taxable there. Besides if taxes had been collected in Dubuque county upon Illinois property, it would be by reason of a mistake, which would be subject to rectification.

We have then a case where a portion only of the property of a corporation is shown to have been taxed to the corporation. This is not sufficient to justify us in holding that the stock is wholly exempt as appellants contend. The court below very properly held that the stock upon the showing made was not wholly exempt. No mere reduction of assessment was asked, and no allusion appears to have been made to such a question. The ruling then could not properly have been different if it should be conceded that where all the property of an Iowa corporation is in Iowa and has beed taxed in Iowa, the stock of such corporation would be exempt.

A promissory note providing that the payee (maker) or his assigns may extend the time of payment indefinitely is not negotiable.*

A

CTION on a promissory note. The opinion states the case. The defendant had judgment below.

Newman & Hake, for appellants.

Whiffin & Brown, for appellee.

BECK, J. The only question in the case involves the negotiability of the note in suit, of which the following is a copy:

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'$300.

DALLAS TOWNSHIP, IOWA, March 18, 1880. "Three months after date, I promise to pay to the order of Warren Roberts three hundred dollars, at the first National Bank of Burlington, Iowa, value received, with interest at ten per cent per annum, including attorney's fees and all costs of collection." "The makers and indorsers of this obligation further expressly agree that the payee, or his assigns, may extend the time of payment thereof from time to time indefinitely as he or they may see fit." "WARREN ROBERTS."

66

(Signed)

"Indorsed on the back, WARREN ROBERTS."

When an instrument is not certain, or is not capable of being made certain, as to the time of payment, the law does not regard it as negotiable paper. By the terms of the condition of the note in suit it would never fall due, but could be indefinitely extended at the will of the maker and indorser, who, it will be observed, is the same party. When the instrument was executed the time of its maturity was contingent upon the option of the maker of the note. It was impossible to determine when it would become due by the assent of the maker. The time of payment was uncertain and was not capable of being made certain. Nothing happened after its execution to remove this uncertainty.

See Mahoney v. Fitzpatrick (133 Mass. 151), 43 Am. Rep. 502.

State v. Connor.

Notes, which by their terms are payable on or before a fixed time or a specified event, are, it is true, uncertain as to the time at which they are payable. But there is no uncertainty as to the time when they become absolutely due. Paper of this character is regarded by the courts as negotiable. But the note before s may never fall due, for payment may be extended indefinitely.

The rules applicable to commercial paper were transplanted into the common law from the law merchant. They had their origin in the customs and course of business of merchants and bankers. and are now recognized by the courts because they are demanded by the wants and convenience of the mercantile world. Surely these rules ought not to be extended to paper, the like of which was never heard of in mercantile transactions. What business man would expect a banker to discount his paper in the form of the note in question in this case? What merchant ever offered to give or was asked to receive a promissory note containing a like condition? We may safely say that notes of this kind are unknown to commercial transactions. Why then extend to them the rules of the commercial law?

By regarding such paper as non-negotiable no prejudice will result to the mercantile and financial business of the country, but sharpers will be defeated in their attempts to swindle the confiding and unwary, a result in accord with sound public policy and good morals.

Miller v. Poage, 56 Iowa, 96; s. c.. 41 Am. Rep. 82; Smith v. Van Blarcom, 45 Mich. 471, support the conclusions we have reached that the note in suit is not negotiable. The case last named holds a note to be non-negotiable which contains the precise condition found in the note before us.

The judgment of the Circuit Court is affirmed.

STATE V. CONNOR.

(59 Iowa, 357.)

Judgment affirmed.

CON

Criminal laro

assault with intent to commit manslaughter.

There may be an assault with intent to commit manslaughter.

ONVICTION of assault with intent to commit manslaughter, The opinion states the case.

Marion v. Chicago, Rock Island and Pacific Railroad Company.

H. B. & L. C. Hendershot, for appellant.

Smith McPherson, Attorney-General, for State.

ADAMS, J. I. The court gave an instruction in these words: "If you find from the evidence that the defendant, at the time and place charged in the indictment, unlawfully assaulted said Ryan with a pistol and shot him in the breast, and you further find that said assault was made upon reasonable provocation in the heat of blood, but without malice, and without legal excuse, and with the intent to kill, then you would be justified in finding the defendant guilty of an assault with intent to commit manslaughter." The giving of this instruction is assigned as error.

The question presented received a very careful consideration in State v. White, 41 Iowa, 325; s. c., 20 Am. Rep., 602. Without claiming that the decisions are uniform, or that the objections urged by the learned counsel for the appellant are without weight, we have to say that we see no sufficient reason for departing from the rule adopted; and the instruction must be approved. [Omitting other points.]

We see no error in the rulings of the court, and the judgment must be affirmed.

Judgment affirmed.

MARION V. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD Co.

(59 Iowa, 428.)

Master and servant.

course of employment.

UFFICIENTLY reported, 42 Am. Rep. 36.
IENTL

There can be no recovery at law upon an instrument in the form of a promissory note, but stating no amount in the body of the note, although figures are set forth in the margin. (See note, p. 690.)

A

CTION on a promissory note.

The opinion states the case.

The plaintiff had judgment below.

Stivers & Louthan and C. B. Bradshaw, for appellants.

Struble & Kinne and O. H. Mills, for appellee.

BECK, J. I. This action was brought before a justice of the peace upon a promissory note indorsed to plaintiff in the following form and language:

$200.

TAMA CITY, Iowa, July 27, 1875. "Fifteen months after date I promise to pay to the order of Richard Thomas, and in case of his death to J. D. Merritt,

dollars, at the Banking House of Carmichael, Brooks & Co.. for value received, with interest at ten per cent per annum. "FRED. T. DAVIS.

"Due October 27, 1876.

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The defendant Davis, the maker of the note, accepted service of the notice of the action before the justice, and assented that the justice have jurisdiction to try the suit to the amount of two hundred and fifty dollars."

The defendant failed to appear to the action before the justice and judgment was rendered against him by default for two hundred and fifty dollars and costs. From this judgment defendant appealed to the Circuit Court.

By leave of the Circuit Court, defendant filed an answer and counter-claim, and afterwards plaintiff, by leave of the court, filed