Cade v. Walker

Promissory Notes — Payment — When Presumed — Who not Holder in Due Course — Judgment — Execution — Payment on Execution not Voluntary — When Payer Entitled to Restitution — Appeal — Law of Case. Appeal — Points Decided by Supreme Court on Appeal are Law of Case on Retrial and Second Appeal. 1. Where points urged for the reversal of a judgment were directly involved and passed upon on the first appeal in a cause, the then opinion of the supreme court is the law of the case binding upon the district court on the second trial as well as upon the supreme court on the second appeal, whether right or wrong. Promissory Notes — Payment Presumed from Possession by Maker After Maturity. 2. Payment of a promissory note will be presumed from possession, after maturity, by a person liable for its payment. Same — Indorser Held to have Paid Note, not Purchased It, After Maturity — Not Holder in Due Course. 3. In an action on a promissory note indorsed by plaintiff and the defendants and alleged by plaintiff to have been purchased by him from the payee bank but claimed by defendants to have been taken up by him and discharged under his liability as indorser, findings of the court that plaintiff paid the note after notice that if not paid suit would be commenced, and that he was not a holder in due course but took the note after maturity subject to the defenses interposed by defendants, his co-indorsees, held supported by the evidence. Page 5 Same — When not Negotiable. 4. A promissory note containing the provision that "if the undersigned shall become insolvent before maturity hereof, this note may at the holders option become immediately due and collectible" held non-negotiable. Payment of Judgment on Execution not Voluntary — Payer Entitled to Restitution on Reversal of Judgment. 5. The payment of a judgment on execution is not voluntary and does not operate as a waiver of the right to restitution, even though there was no actual seizure of property of the debtor, and where payment was wrongfully exacted, the law at the very time of payment creates the obligation to refund; hence where the judgment is thereafter reversed, restitution may be enforced so far as possible to correct what was wrongfully done. Same — Case at Bar. 6. Under the last above rule, held, in an action on a promissory note, that where plaintiff upon rendition of judgment in his favor procured the issuance of execution in pursuance of which the sheriff levied upon all the property of defendant, who made payment pending appeal from the judgment which was reversed, and on retrial judgment properly went for defendant, that the district court correctly decreed that he was entitled, under his counterclaim, to recover the money paid by him on the reversed judgment.