Hunt v. Wadleigh , 26 Me. 271 ( 1846 )

The opinion of the Court, WhitmaN C. J. dissenting, was prepared by

Shepley J.

The only testimony presented on the part of the plaintiff is contained in two depositions. It appears from the testimony of Lea Claflin, that the plaintiff held a note against the defendant, who was called upon for payment of it during the summer of the year 1840. That an arrangement was then made between the parties to make payment of it by the transfer and delivery of a draft, which had been drawn on August 23, 1837, by E. S. Goodnow of Nashua N. H. on Porter & Harlow at Bangor, payable to the defendant or his order in four months after date, for the sum of three hundred and twelve dollars and sixteen cents. This draft had been indorsed by the defendant, .accepted, presented at maturity for payment at Bangor, where the acceptors were not found; the notary being informed, that they were in Boston, protested the draft and gave due notice to the other parties. The defendant having received it from the bank, in which it had been left for collection, delivered it to the plaintiff, who then delivered to the defendant his note.

The transfer of the protested draft to the plaintiff, by delivery, was equivalent to the drawing of a new draft on the acceptors payable on demand or at sight. It became the duty of the holder to present it to the acceptors for payment, within a reasonable time, and to give notice thereof, if hot paid, to the defendant. Story on Notes, § 267; Jones v. Swan, 17 Wend. 94; Greely v. Hunt, 21 Maine R. 455. There is no proof, that such a presentment was ever made. Nor any proof, that the defendant, when the draft was delivered to the plaintiff, made any remarks, from which an intention to waive it can be inferred.

The next information respecting the draft is derived from the deposition of Ira Cheney, who states, that during the spring and summer of 1842, George O. Brastow, whom the defendant subsequently admitted to be his agent, called upon him several times respecting it, offered to pay ten cenis on a dollar for it, and requested him to communicate this offer to the plaintiff; that he did do so, and the plaintiff refused to accept it. The witness further states, that he received the draft of the plaintiff, and by his request called upon the defendant for payment of it in July, 1843. That “ he said he was able to pay that debt, and if Mr. Hunt would say, that he, Wadleigh, was to be hold-en on the draft, he would pay it. It was agreed, that he, Wadleigh, was to write to Hunt about it, before I saw Hunt, and that if Hunt would say to him, that he understood him, Wadleigh, to be liable at the time he passed it, he would pay it.” That the defendant called upon him in September following and offered to pay ten cents on a dollar for it, and that during the conversation he said “ he did not doubt, but that he was liable by law, and that he expected Hunt would get an execution against him.” That he admitted, that he had written to flunt and obtained an answer from him; and that the drawer and acceptors of the draft had been unable to pay it, since it was protested.

The insolvency of the acceptors does not excuse the holder for neglecting to make a presentment. Gower v. Moore, 25 Maine R. 16. The remark of the defendant, that he did not doubt, but that he was liable by law, does not authorize one to conclude, that he had any knowledge, that the draft had not been presented for payment. It was evidently made under a misapprehension of the law, that he was liable without it. There is no evidence therefore, that the defendant had any knowledge, that it had not been presented, or that he had been discharged by the laches of the holder. And without such proof’ his subsequent promise to pay, if the condition were fulfilled, is not binding. “1ft he drawer or an indorser, after full knowledge of the fact of an omission to make due presentment, promises to pay the bill, it will amount to a waiver of such presentment, and bind the promisor to pay the bill.” But such a promise, made in ignorance of the facts, will not be binding or a waiver of the laches.” Story on Bills, § 373, 320; Story on Notes, § 361; Chitty on Bills, 536 to 539, (8th Ed.;) Bayley on Bills, 294, (Ed. of P. & S.) And “ the plaintiff must show' affirmatively, that the defendant knew, he bad not been regularly charged.” Leonard v. Gary, 10 Wend. 504; Davis v. Gowen, 17 Maine R. 387.

The plaintiff fails to show by the testimony presented, that he is entitled to recover.

Plaintiff nonsuit.