Selden v. Washington ( 1861 )

Le Grano, O. J.,

delivered the opinion of this court.

This action is brought to reco\Ter the amounts of three promissory notes; two of them drawn by John Lee, in favor of George C. Washington, the intestate of the appellee, and by him endorsed, and the other by George 0. Washington, in favor of John Leo, and bj the latter endorsed. In regard to this last note, the record presents no question for the decision of this court.

The points in coniroversy relate to the sufficiency of the demand of payment of the notes drawn by Lee, and to tha*, of the notice of non-payment given to the endorser, Washington. 1

The notes were dated Washington, and not, on their faceT made payable at any particular place; and, in the case of Sasscer vs. Whitely & Stone, 10 Md. Rep., 98, it was held, that where a note is dated at a particular place, and no other place is designated as that of negotiation and payment, the presumption is, that the maker resides where the note is dated, and that he contemplates payment at that place; but this presumption may be rebutted, and if the drawer resides elsewhere within the State, when the note falls due, and this be known to the holder, demand must be made at the maker’s residence, or place of business. Rut, if the drawer does not reside in the State, and has no place of business within the? State, no demand upon him is necessary. Ricketts & Whittington vs. Pendleton., 14 Md. Rep., 330, and the authorities there cited.

It was given in evidence, by a notary public of Washington, District of Columbia, that when the notes drawn by John Lee severally became due, he, at one of the banks in Washington city, made demand of payment of the note, and received for answer, “no funds here;” and that, on inquiry, he ascertained that Lee had no place of business or residence in Washington, but resided somewhere in Frederick county, Maryland. On the part of the defendant, it was shown that Lee had, for forty years, resided in Frederick, county, and at one time was a representative in Congress from Maryland, and at another time of his county in the State Legislature.

Each of the notices of non-payment, sent to the intestate of the appellee, after setting out the date and amount of note, proceeds as follows, “by you endorsed, and for which you are liable, has been this day protested for non-payment, at the request of Selden, Withers & Co.”

There is nothing said in the notice of any demand having been made for the payment of the notes. Unless there be-something in the facts of the case, this omission to inform the endorser that a demand of payment had been made, would render the notice insufficient to bind the endorser. Graham vs. Sangston, 1 Md. Rep., 59. But we think there is sufficient in the record to show that there was no demand, other than that which was made, necessary, and that, under the circumstances of the case, the notice sent was sufficient. It ■states that the note had been “protested for non-payment.’’ <(A statement of non-payment and notice is, by necessary implication, an assertion of right by the holder, founded on his having complied With the requisitions of law against the endorser.” Mills vs. U. S. Bank, 11 Wheat., 431, See 4 Gill, 202. 1 Md. Rep., 504.

(Decided Oct. 29th, 1861.)

We are aware that there are decisions in some of the States in conflict with the principles recognized in the cases which We have cited, but wfe prefer adhering to our own adjudications, as more ¡conducive to the ends of justice, and as furnishing more reliable facilities for the transaction of commercial business.

From what we have said, it follows, we are of opinion, that if the jury believed the evidence, the plaintiffs were entitled to recover, and, as a consequence of this, the granting of the defendant’s prayers was error.

Judgment reversed and procedendo awarded.