Oskaloosa College v. Hickok

Beck, J.

I. It may be admitted, as contended by defendant’s counsel, that the indorsement was a part of the original contract, and must be so regarded in construing the instrument.

1. promissory ment. II. But it cannot be held that the indorsement so changes the effect of the note as to release the obligation of defendant to pay the principal. The language of the indorsement indicates no such intention; on the other hand it unmistakably leads to the contrary conclusion. It permits the defendant to use the principal after due — to retain it upon the terms expressed. This indicates that plaintiff did not wholly surrender its right to the principal, but that defendant could withhold it. This, however, could be done only upon the terms expressed, namely, the payment of interest annually.

III. It cannot be doubted that if the conditions, upon which this stipulation of the contract whereby the defendant was to retain the principal was made to depend, were not performed by him, he could not claim its enforcement. He cannot violate his part of the contract and hold plaintiff to the performance of its agreement.

*239

2. —:-: interest.0 pay

*238 IV. Therefore, if the interest was not paid annually, as *239 required by tbe contract, defendant cannot insist that tbe principal is not due according to the terms of the note. The evidence, -without contradiction, shows that defendant did not pay the interest, annually and made no tender thereof; lie admits this in his testimony. The principal of the note therefore became due and payable according to the .terms of the note.

Y. But it appears that the reason defendant did not pay the note is, that plaintiff demanded the installments and principal. This is no excuse for the defendant to refuse to perform or offer to perform his obligation. Because plaintiff claimed more than defendant agreed to do, he cannot be regarded as performing the contract, or be excused of its full performance, upon doing less.

3. —: -: payment.111 YI. The defendant paid the interest before suit was commenced. But by his failure to pay the interest annually the note matured according to its terms and the indorsement became inoperative. The acceptance of interest afterward was only the acceptance of partial payment. The note having matured according to its terms, the defendant was entitled to no further extension of time.

Beversed.