if he suffered loss or detriment therefrom. It will be observed that the guaranty of the notes expressly waives notice. Now, it will be readily seen that the liability of defendants upon the guaranty is not different from the liability upon an indorsement waiving notice. Defendants in both cases would be liable without notice. Notice, the very thing which creates a difference in the contracts, was not required in this case.

Was Burrows authorized to indorse the note waiving notice? In the contract with plaintiffs defendant undertook to indorse the note. No indorsement waiving notice is covered by the terms of the contract; but, if it were not, Burrows would be authorized to make such an indorsement for this reason: he was authorized to perform the partnership obligation, and to adjust and settle debts of the partnership. While he could not make a new contract, he could perform an old one. A partner, after dissolution of the firm, may waive demand and notice of non-payment of a note which had been indorsed by the firm before its dissolution. In doing so he does not make a new contract; he simply dispenses with testimony that otherwise would be required. Darling v. March, 22 Me. 184; Collyer on Partnership, § 546.

If Burrows could have so waived demand and notice on an indorsement before made, he surely could have waived it if he had made it himself without condition, and his authority to make such indorsement is not disputed. It follows that under his authority as a partner, after dissolution, he could have indorsed the notes, in performance of the contract with plaintiff, with a condition waiving demand and notice. He thus performs the contract, reaching a result precisely the same as he was fully authorized to attain by waiver of notice upon indorsement made before dissolution.

The conclusion reached by the court below upon the facts found is not correct. It is not necessary to consider other questions discussed by counsel. The judgment of the district court is reversed.

ADDISON DANIELS and others, Appellants, vs. J. W. GowER and others, Appellees.

Filed December 3, 1879.

Where a non-negotiable note in the hands of a third person was signed by certain parties as sureties, with the agreement and upon the condition that the same should not be delivered unless the signature of one B. was also secured as security thereon, and the signature of B. was not obtained, but that of one I. was, who signed the same in ignorance of such condition, and was thereupon delivered by the said third person to the princi

pal maker of said note, and by him negotiated, held, that as to the sureties who had signed upon such condition the instrument was never delivered, and they were not bound, and that I., having signed, in just reliance upon the sureties whose signatures preceded his, they not being liable thereon, he was not.-[Ed.

Appeal from Tama district court.

Action upon a non-negotiable promissory note, signed by the defendant Gower as principal, and by the defendants Beem, Weaver, Sell and Ineck as sureties. Gower was not served with notice. Beem, Weaver and Sell aver for answer that they signed the note while in the hands of one Stoller, and with the agreement that it should not be delivered unless the signature of one Blajok should be obtained; and that the signature of Blajok never was obtained.

The defendant Ineck avers for answer that he signed the note after it had been signed by Beem, Weaver and Sell; that they signed it upon the condition that the signature of Blajok should be obtained, which was not done, and he was ignorant of such condition.

There was a trial by jury, and verdict and judgment were rendered for the defendants. The plaintiffs appeal.

O. H. Mills and James D. Griffin, for appellants.
G. R. Struble, for appellees.

ADAMS, J. 1. The note was given for a steam boiler and engine, sold to the defendant Gower. The sale was negotiated with Gower by one Reily. Whether Reily was acting for himself, or as the agent of the plaintiffs, was a question raised upon the trial and submitted specially to the jury. They found that he was acting for the plaintiffs. The correctness of this finding is questioned, but in the view which we take of the case it is not material. The principal question in the case arises upon the correctness of the eleventh instruction given by the court, which is in these words:

"The defendants Beem, Weaver and Sell say that they never delivered said note, and never authorized any person to deliver it for them, but allege that they signed it and placed it in the hands of one Stoller, upon the express condition and understanding that said Stoller should retain the same until one Blajok should sign it with them, and that Blajok did not sign said note, and that it was delivered by Stoller to one Roach, without the knowledge and consent of these defendants, who delivered the same to said Gower, from whom it was obtained by plaintiffs; and that said defendants had no knowledge of such delivery, and never gave their assent thereto or ratified the same.

"On this subject you are instructed that if you believe from the evidence that Beem, Weaver and Sell signed and delivered said note to Stoller; that said Stoller was not the agent of the plaintiffs; that it was delivered to Stoller with the agreement and understanding that it should be retained by him, and not delivered until signed by Blajok; and if you further believe that it was not signed by Blajok, but was delivered to Roach by Stoller, without the knowledge or consent of the defendants, or any of them, and by him delivered to Gower without the knowledge or consent of the defendants, then the defendants, or such of them as signed and delivered said note under such circumstances, and with such understanding and agreements, will not be liable, and you will so find by your verdict."

The giving of this instruction is assigned as error. The evidence shows that the note was signed by Beem, Weaver and Sell, while in the hands of Stoller, as alleged, and with the condition as alleged. Considerable stress is laid in argument by the appellee upon the facts that the note was then in the hands of a stranger to it. This fact might be material if the payees had received the notes from the hands of Stoller. We are inclined to think that they might properly have been required to take notice of the extent of Stoller's authority, even if the note had been made negotiable; but the note passed from Stoller to Gower before delivery, and the delivery was made by Gower, who was the principal upon the note.

Where a negotiable note is delivered by the principal, it is, to say the least, doubtful whether the payees are bound to take notice of his authority. Upon this point see Passumpsic Bank v. Goss, 31 Vt. 315; Farmers, etc. v. Humphrey, 36 Vt. 554; Smith v. Moberly, 10 B. Monroe, 269; Bank of Missouri v. Phillips, 17 Mo. 30. In one sense, it is true, there would be no delivery as to the sureties if the delivery were made without authority; but some of the cases seem to hold that where the sureties allow the note to pass into the hands of the principal, who has power to bind himself by delivery, the payees have a right to assume that the sureties authorized him to deliver it for them. But this doctrine, whether it is correct or not, is not, we think, applicable to a case where the note is not negotiable. The note in this case, according to the amended abstract, is not negotiable.

There has been a long line of decisions to the effect that where the obligee in an official bond receives it from one of the obligors he has no right to assume that the co-obligors signed

it without conditions. See Pepper v. The State, 22 Ind. 411, and cases cited. In some of the cases, it is true, there seems to have been enough upon the face of the instrument to put the obligee upon inquiry, but that does not appear to have been a controlling consideration. Now, while cases arising upon official bonds may not be regarded as strictly in point, the principle involved is very nearly the same. Besides, cases are not wanting which have arisen upon non-negotiable instruments for the repayment of money. People v. Bostwick, 32 N. Y. 445; Ayres v. Milroy, 53 Mo. 516. In the latter case the court, while recognizing the rule that sureties who sign a negotiable instrument and leave it in the hands of the principal, who delivers it, cannot be heard to say that they signed it upon conditions which were not fulfilled, held that it had no application to instruments that were not negotiable. They say that "in making this line of defense there is a clear distinction recognized between bonds or other instruments that are not negotiable and those which are negotiable." In our opinion the instrument in question not being negotiable, and having been delivered in violation of conditions imposed by Beem, Weaver and Sell, they may properly claim that as to them the instrument was not delivered. The instruction given, we think, is correct.

2. As to Ineck, who signed in just reliance upon the sureties whose signatures preceded his, as the evidence shows, it seems clear that if they cannot be held he should not be. Pepper v. State, above cited.

The judgment of the district court is affirmed.

JAMES REDDING, Appellee, vs. J. H. PAGE and others, Appellants.

Filed December 3, 1879.

A judgment will not be reviewed on the ground that it is not supported by the evidence, unless in some manner excepted to in the court below. In an action of replevin, plaintiff claimed title by purchase from one M., defendant, as receiver in certain foreclosure proceedings in which M. was defendant. Held, that demand was not necessary before suit brought. Appellant cannot complain of error to which he made no exception. Omission to assign an error will be deemed a waiver thereof.-|ED.

Appeal from Hardin district court.

Replevin for wheat and other grain. The cause was tried to the court without a jury, and judgment rendered for plaintiff. Defendants appeal. The facts of the case appear in the opinion.

King & Henley, for appellant.

J. H. Scales, for appellee.

BECK, C. J. 1. The petition alleges that plaintiff was owner of the property, and that he acquired title thereto by purchase from one Markham. The defendants set up in the answer that they hold the property under an order appointing one of them receiver in a case of foreclosure, wherein Markham was defendant. The property was taken and is held by the receiver under this order. The answer claims that the action cannot be maintained because the property is in the custody of the court wherein the foreclosure suit is pending. Certain errors are assigned and presented in argument assailing the judgment of the circuit court on the ground that it is not sustained by the testimony. The assignment specifically points out as error that no leave to prosecute the suit was shown; that the property was held by a receiver of another court; that no demand was shown, and that the amount of the judgment is excessive. All these objections are aimed at the judgment, and are based upon the ground that it is not sufficiently supported by the evidence. We cannot consider the objections, for the reason that the judgment was in no manner excepted to in the court below. No exception appears to have been taken in any form to the judgment. It is a familiar rule that we cannot consider objections unless based upon exceptions taken in the court below. We will not review a judgment complained of as not being supported by the evidence unless it was excepted to in some form. This rule is so familiar that the citation of cases is not needed in its support.

2. The court refused to admit evidence to show that plaintiff made no demand for the property before the action was commenced. But a demand was not necessary to give plaintiff a right of action, as both parties claimed title to the property. The plaintiff claimed title under a purchase from Markham, and defendant claimed title as the receiver appointed in the foreclosure proceeding. A demand was not necessary to confer upon plaintiff the right of possession, nor to terminate such right held by defendant. The law did not, therefore, require it to be made. Smith & Co. v. McLean, 24 Iowa, 322.

3. Counsel insist that the court erred in holding defendant liable for the value of the grain at the highest market prices between the time of taking and the trial, and in rendering judgment accordingly. Whether the court in rendering judg