Fisk v. Miller , 1883 Cal. LEXIS 462 ( 1883 )

Ross, J.

The note in suit was made by the defendant Barker, indorsed before maturity at the request and for the benefit of Barker by the defendant Miller, and then sold by Barker to the plaintiff. Miller, by his act, became indorser, and liable as such. (Fessenden v. Summers, 62 Cal. 484.)

The averment in the complaint of presentment, demand, refusal, and notice we think sufficient. It is, “ that said note at maturity was presented to said George M. A. Barker for payment, and ^payment thereof demanded, but the same was not paid, of all which due notice was given to said defendant, Thomas S. Miller.” The protest of the notary shows the fact of presentment to and demand on the maker for payment, and refusal on his part to pay, and the further fact that notice of such demand and non-payment was given on the next day by the notary to the indorser, by delivering the same at his residence, Bo. 1,208 Leavenworth Street, in the city of San Francisco, to a person in charge, of discretion, apparently acting for him. The protest was prima faeie evidence of those facts, and the facts show a sufficient notice to the indorser of the dishonor of the note. (Pol. Code, § 795; Civ. Code, § 3144.)

The tender relied on, if otherwise good, was insufficient in amount.

Judgment and order affirmed.

McKinstry, J., and McKee, J., concurred.

Hearing in Bank denied.