Patterson v. Yose , 43 Me. 552 ( 1857 )

Appleton, J.

It appears from the evidence that the plaintiff, having a lien claim for labor on the bark Lapine, which one Amaziah Nash ¡was then building, received in payment of the same the joint note of Nash and the defendants. Their note not having been paid at maturity, they gave in renewal thereof the one in suit, signed by Nash as maker, to the order of, and endorsed by, the defendants, and payable at the Calais Bank in three months. As, when the note becaxne due there was no demand made on the maker nor notice given to the defendants of its non-payment, they claim to be exonerated from all liability.

It was decided in the House of Lords in the case of Rowe v. Young, 2 Brod. & Bing., 165, that if a bill of exchange be accepted, payable at a particular place, the declaration in an action on such bill must aver presentment at the place and that such presentment must be proved.

In this state the English rule was not adopted. It has accordingly been repeatedly held in case of a note payable at a particular time and place, whether payable on demand or not, that no averment or proof of demand was necessary to entitle the holder to maintain an action on the note. Remick v. O’Kyle, 3 Fairf., 340; McKenney v. Whipple, 21 Maine R., 98.

The statute of 1848, chap. 218, which has been relied upon in the defence, applies only to notes payable at a place certain, on demand, at or after the expiration of a time specified. Stowe v. Colburn, 30 Maine R., 32.

In the case before us, the maker of the noto, Nash, testifies as follows: “ I agreed to give Patterson a note, endorsed by Vose & Joyce, and agreed with Vose that he should pay it — he told me he luould take care of the notes. I put the property in his hands.” In another part of his testimony, referring to the time when this note was given, he says, “ that Voso & Joyce had agreed to pay this (the first note) and other notes for labor on the vessel, and were to have the proceeds of the sale of the vessel; that I was present when plaintiff presented this (the first) note to Vose for payment. Vose offered to give him a six months draft on New York in order to get time, which plaintiff declined. Vose then told him he would give him a note, payable at the Calais Bank, and he could get the money on it then and he would take the note up at maturity by a three months draft on New York.” It appears from the testimony of the plaintiff that three or four days after the 29th of February he had a conversation with. Vose, which was as follows: “I told him the note had become due, and demanded the money. He said he could not pay it at that present time, but he would see Capt. Nash and have it settled immediately, and for me not to sue the note until he saw me ^again.” On cross-examination he said, “Yose said in this conversation that he had paid a good deal of money for Nash, but he did not say he wanted Nash to pay the note. He said he wanted to see Capt. Nash so they could muster something to pay it.” In all these conversations it is apparent that Yose was acting in behalf of the firm of which he was a member.

It was held in Fuller v. McDonald, 8 Maine R., 213, that parol evidence is admissible to show a waiver of demand on the maker and notice to the endorser at the time of the endorsement of the. note in suit; that such waiver need not be positive, but may be inferred from the facts and circumstances attending the transaction. In Lane v. Stewart, 20 Maine R., 98, a waiver of demand on the maker was held to be sufficiently established by proof that the endorser, at the time of the endorsement of the note said, that if the maker did not pay it when it became due he would, and that after it became due he told the holder that if he would commence a suit against the maker, and could not collect it, he would pay it. So evidence to show a waiver of the necessity of making a demand or giving notice was received in Sanborn v. Jewell, 25 Maine R., 409. “ What circumstances will, in our law, amount to the proof of a waiver of due presentment, or the want of due notice of the dishonor, is sometimes a matter of ho inconsiderable doubt and difficulty. Slighter circumstances may be sufficient when the situation of the endorser is such as fairly to give rise to the presumption that the note was for his accommodation; or that he had not or could not have sustained any prejudice more than would be essential where no such presumption should arise.” Story on Promissory Notes, sec. 277. It is apparent in the case before us that no injury could have arisen to the defendants from want of demand or notice. The vessel upon which the plaintiff had labored, and from the avails of which the funds were expected to meet this claim, was in their hands, and when this note was taken, in renewal of a preceding one, they had “promised to take it up at maturity,” and after maturity they had further promised to “ have it settled immediately.” In accordance with the previous decisions of this court, the defendants must be regarded as having waived demand and notice, and consequently a default must be entered.

Defendants defaulted.