(dissenting)' — I respectfully dissent. The error of the majority arises in the assumption that there was something wrong between Peterson and Modjeska in the inception. It is shown by the evidence, without contradiction, that Peterson loaned Modjeska $1376 cash. It is true Modjeska gave Peterson an “I.O.U.” for $2200, but that was purely a voluntary transaction between two men in the business world. While there was usury in it, that had nothing to do with Beattie giving a check for $1300. The majority properly discusses the elements of the negotiable instruments statutes, but brushes them aside on the mistaken theory that the original transaction did not smell right.
I will discuss the questions of Negotiable Instruments Law, usury not applying to Beattie, and the fact that in accordance with modern trend Commercial National Bank v. Citizen’s State Bank, 132 Iowa 706, 109 N.W. 198, nearly 50 years old, antiquated, and completely outmoded should be overruled.
I will accept the statement of facts of the majority.
On May 26,1959, when the note was past due, plaintiff went to Beattie’s place of business and asked Mr. Modjeska for payment. Mr. Modjeska told him he would get him a check and in a few moments came back with a check signed by defendant Sid Beattie for $1300. The check was made to Jack Modjeska and he endorsed it to plaintiff. He told plaintiff he had more money coming but could not get it just then, but would get the balance in a few days.
Plaintiff deposited the check immediately in his bank account but it came back the next day marked “insufficient funds.” Mr. Modjeska failed to pay anymore, and Mr. Beattie refused to pay the check.
This suit was then started by plaintiff.
I. One principal question raised by appellant was whether plaintiff was the holder in due course of defendant Beattie’s *159check for $1300, free of any defenses available to prior parties among themselves.
Our Negotiable Instruments Law, chapter 541 of the Code, provides adequate answers to this proposition. Section 541.52 provides: (see decision of majority).
Section 541.57 is also pertinent and is: (see decision of majority).
The facts of the instant ease support all four of the statutory conditions. The check Beattie gave to Modjeska was an ordinary check written on a check form on which appeared the printed names of Mr. and Mrs. Beattie. The figures and written amount were regularly and in proper places put on the form by defendant Beattie and his name affixed. It was dated on the day it was made and delivered first to Modjeska and then by him endorsed and delivered to plaintiff the same day.
The cheek was not postdated and Mr. Beattie placed no conditions or reservations of any kind on the check.
The bank had called Mr. Beattie and told him his account was not large enough to pay the cheek. Beattie went to the bank and then found it had been deposited by an oil company. Not understanding that, he stopped payment.
The check was not overdue when plaintiff received it. He took it in good faith to pay on an obligation representing cash loaned by him to Modjeska. He had no notice of any infirmity in the instrument, nor defect in Mr. Modjeska’s title to it.
Mr. Beattie signed it, delivered it, and sent it into the regular channels of business trade. He claims Mr. Modjeska said he needed it as a first payment on a home he was purchasing; although that was long after check was given. Mr. Beattie testified: “In the late afternoon of the date that the check was issued, Mr. Modjeska approached me about the purchase of a home that he had been contemplating and had asked me as a favor to help him negotiate such an offer.” As far as plaintiff was concerned it would make no difference what Modjeska said to Beattie, since plaintiff knew nothing about it. Under section 541.52 plaintiff’s title was clear and he was a holder and owner of the check in due course of business, and for value given by him.
*160We have approved the Code section in many cases, a few of which are: Sword v. Spry, 205 Iowa 266, 215 N.W. 737; State Savings Bank v. Behm, 202 Iowa 192, 209 N.W. 523; Merchants National Bank v. Grigsby, 170 Iowa 675, 149 N.W. 626; Midwest National Bk. & Tr. Co. v. Niles & Watters Sav. Bk., 190 Iowa 752, 180 N.W. 880.
Appellants lean heavily on sections 541.55 and 541.58. The first section provides: “When title defective. The title of a person who negotiates an instrument is defective within the meaning of this chapter when he obtained the instrument, or any signature thereto, by fraud, duress, * * Appellants claim Modjeska secured the $1300 check by misrepresentation. There is a question about that from the facts of the case. However, an exception in section 541.58 supersedes the general statement in section 541.55 in following language: “In the hands of any holder other than a holder in due course, a negotiable instrument is subject * * (Emphasis ours.) Plaintiff as a holder in due course is therefore not subject to the provisions of sections 541.55 and 541.58.
When a stop payment order is placed on a check, it in fact becomes a demand promissory note in the hands of a third-party holder in due course. Section 541.186; Patterson v. Oakes, 191 Iowa 78, 80, 81, 181 N.W. 787, 14 A. L. R. 559.
In Patterson v. Oakes, supra, we said:
“The question is: Could this action be maintained on the checks at said time, or was the same prematurely brought?
“Under our statute [present section 541.186], a cheek is payable on. demand. Where the drawer of a check stops payment thereon [Beattie stopped payment on $1300 check], he-is liable to the holder of the check for the consequences of his conduct. * * * The effect, so far as the drawer is concerned, is to change his conditional liability to one free from the condition, and his situation is like that of the maker of a promissory note due on demand. Usher v. Tucker Co., 217 Mass. 441, 105 N.E. 360 [L. R. A. 1916F 826]; Albers v. Commercial Bank, 85 Mo. 173, 55 Am. Rep. 355; Brown v. Cow Creek Sheep Co., 21 Wyo, 1, 126 P. 886.”
*161If there were any misrepresentations by Modjeska when he received the check from defendant Beattie, they would not be chargeable to plaintiff, who received the check in due course of business. In Sword v. Spry, supra, the claim was there asserted that Burkey the endorser (like Modjeska) had obtained the defendant Spry’s note (like Modjeska) by fraud and that Burkey had negotiated the note in breach of a conditional delivery agreement (like Beattie’s claim Modjeska was to use the check as down payment on a home) with the maker. The fraud alleged was that Burkey had induced the maker to execute the note by making fraudulent representations as to the value and nature of subsoil in Wisconsin, the note being part of the consideration for the purchase of the real estate. This court said at page 270 of 205 Iowa:
“Finding of the court is that appellant knew nothing of the misrepresentations and false pretenses, and received the negotiable instrument without knowledge of any infirmity therein or prior equities claimed by its maker. Therefore, through said judicial conclusion appellee is bound, and the suggested requirement need not be further faced, for the otherwise confirmed fact now becomes fixed in the record as fully proved. Consequently, appellee possessed all the rights of and was entitled to litigate as a holder in due course.”
II. Appellant primarily urges that plaintiff was not a holder in due course because he did not give anything of value for Beattie’s check of $1300. The leading case cited by appellant in support of his position is the case of Commercial National Bank v. Citizen’s State Bank, 132 Iowa 706, 109 N.W. 198. It is true this case, which was decided and announced 56 years ago, supports appellant in this position.
There have been many changes in the volume and activity of our business life in the last half century. Prmciples which were a logical and a just part of business transactions in 1907 oftentimes do not administer complete justice in 1963.
The ultimate question in the case at bar is whether the giving of credit in part payment of an indebtedness by endorsement on a written obligation constitutes taking for value.
*162The majority emphasizes the fact that plaintiff’s credit was conditional. The record shows the I. O. U. had written on its face “2200 1300
900 bal.” This is clear evidence that Modjeska had received credit on the document showing his indebtedness.
According to the modern trend it is not necessary that any value flow from endorsee of the document to the payer of the note or check. It is sufficient if “for value” is established as between the holder of the note or check and the endorser, provided the holder has no knowledge of fraud or deception between the original payer and payee.
This principle has now been established in many jurisdictions of our nation. Fair Loans, Inc. v. John N. Wilkinson, Jr., 211 Md. 216, 126 A.2d 851; Ahern v. Towle, 310 Mass. 695, 39 N.E.2d 561; Citrin v. Tansey, 107 N. J. L. 368, 153 A. 523; City of Fresno v. Dillon, 207 Cal. 714, 279 P. 767.
In accordance with this modern trend as to negotiable instruments and from a sense of justice in these modern times, Commercial National Bank v. Citizen’s State Bank, 132 Iowa 706, 109 N.W. 198, and any other similar cases in which we heretofore announced the principle therein adopted, should be overruled.
The case of Fair Loans, Inc. v. John N. Wilkinson, Jr., 211 Md. 216, 126 A.2d 851, holds to the contrary. This is-a Maryland opinion decided in 1956. It is an action on a check in the amount of $2100. A company known as Check Guaranty Fund was in the business of guaranteeing cheeks, for which a charge was made in connection with the purchase of automobiles. Four checks given for automobiles were not paid when presented for payment. Check Guaranty Fund paid them and then proceeded to collect them. Among the checks paid by Fair Loans, Inc., to the automobile company was one drawn on Suburban Trust Company of 'Silver Spring in the amount of $2100. Payment was stopped on the check, and suit resulted. At the time Fair Loans, Inc., received the cheek there was no notice of any in*163firmity in the instrument or defect in the title of the persons negotiating it.
This is similar to the case at bar. Mr. Peterson, plaintiff, had no notice of any infirmity in the $1300 check of Mr. Beattie given to Mr. Modjeska.
In the Fair Loans case it was claimed that Check Guaranty Fund parted with nothing in accepting the check of Fair Loans, Inc., and did not alter its position or prejudice itself in anyway; that is to say it did not cancel any part of the debt or extend the time for payment. In the ease at bar appellants similarly charged that Peterson did not alter his position or prejudice himself and, therefore, there was no consideration upon which the cheek could be accepted by Peterson, for its face amount of $1300.
In the Fair Loans case defendant testified that he took the cheek as part payment of an indebtedness, that he had no knowledge of any defect in it at the time he took it, and that he took it in good faith. The court states at page 226 of 211 Md., page 856 of 126 A.2d: “We find in the testimony no evidence whatever of actual knowledge of any infirmity or defect and no indication of knowledge of any facts which could amount to bad faith under the tests of the statute.”
In the case at bar it clearly appears in the evidence that Peterson had no knowledge of any infirmity or defect in connection with the $1300 check of Beattie. The court decided that Fair Loans, Inc. was entitled to judgment against defendant upon the check.
In the case at bar the trial court rightfully decided that Peterson was entitled to judgment against Beattie on the check.
Several other jurisdictions have supported this position of the Maryland court in the following eases: Ahern v. Towle, 310 Mass. 695, 39 N.E.2d 561; Citrin v. Tansey, 107 N. J. L. 368, 153 A. 523; City of Fresno v. Dillon, 207 Cal. 714, 279 P. 767.
We should join these several prominent states in their position that “value” is present as outlined in the statute under the conditions appearing in the case at bar.
In support of the position also see general statements to *164the same effect in 10' C. J. S., Bills and Notes, section 321, page 813.
III. Appellant contends plaintiff is not a good faith purchaser of the $1300 check, because the original contract between plaintiff and Modjeska was usurious. It may or may not have been. The burden of proof as to this claim would be upon Beattie and he has not carried the burden. Plaintiff’s testimony is he gave Modjeska a check for $1376 and received the $2200 instrument shown in first paragraph. Whether the excess above $1376 is commission and interest for the loan, or is something else, the record does not disclose.
This is immaterial for two reasons: 1. Modjeska’s instrument is not void. If usurious it would only be subject to certain forfeitures as outlined in section 535.5 of the Code. 2. Only Modjeska can raise the question of usury. Beattie cannot raise it. 7 Am. Jur., Bills and Notes, page 973; Burlington Mutual Loan Assn. v. Heider, 55 Iowa 424, 5 N.W. 578; Sullivan Savings Instn. v. Copeland, 71 Iowa 67, 32 N.W. 95; Hill v. Rolfsema, 226 Iowa 486, 284 N.W. 376; Partch v. Krogman, 202 Iowa 524, 210 N.W. 612; Martin v. Harper, 193 Iowa 259, 186 N.W. 897.
In Martin v. Harper, supra, the court said: “The plaintiff, Martin, had no part in the alleged unlawful agreement for usury. His subsequent acquirement of an interest in the contract by assignment from Bergman gives him no standing to object to the usury, if any there was. Generally speaking, the right to plead usury is personal to the party who agrees to pay it * * (Emphasis ours.)
In the instant case Beattie, who gave the $1300 check, had no right to plead usury in the transaction between plaintiff and Modjeska.
I would affirm.
Hays, LarsoN and ThompsoN, JJ., join in this dissent.