Sanborn v. Southard , 25 Me. 409 ( 1845 )

The opinion of the Court was drawn up by

Shepley J.

This is a suit by the indorsee against the indorser of a negotiable promissory note, made on September 16, 1837, by Robert Moore, for the sum of one hundred and fifteen dollars, payable to the defendant in one year after date, with interest, and indorsed by him. The witness states in his deposition, that the defendant indorsed and delivered the note to him the last of January or first of February, after it became payable; and that at the same time, he promised that he would pay it himself, if he did not get payment of Moore. The presiding Judge excluded the testimony to prove that promise. Testimony to contradict or vary the legal contract, implied by a blank indorsement, is not to be received. Testimony of the description offered in this case has not been regarded as of that character; but as evidence only of a waiver of the performance of the demand or duty required by the law. Lane v. Steward, 20 Maine R. 98. The witness states, that he made a demand for payment of the maker, a little past the middle of the month of March following, and on the same day gave notice thereof to the defendant. The indorsement having been made after the note was overdue, the demand would have been sufficient, if made within a reasonable time after the indorsement. The case does not present sufficient facts to enable the Court to determine, that the holder delayed the presentment for payment for an unreasonable time.

Exception sustained and a new trial granted.