Page v. Gilbert , 60 Me. 485 ( 1872 )

Walton, J.

A notice to the indorser of a note, which merely informs him of the non-payment of the note, and demands payment of him, without stating that payment has been demanded of the maker, or giving any legal excuse for not demanding it of him, is not sufficient to charge the indorser. Littlehale v. Mayberry, 43 Maine, 264; Union Bank v. Humphreys, 48 Maine, 172; Pinkham v. Macy, 9 Met. 174; Gilbert v. Dennis, 3 Met. 495.

The notice should state whether or not the note has been presented to the maker for payment; and if not, why not. The indorser has a right to be informed of those facts on which his liability depends, to the end that he may judge for himself whether or not it is his duty to pay the note. A notice, which merely states that the note has not been paid, without stating whether or not it has been presented for payment, or giving any excuse for not presenting it, is not sufficient; for such a notice may be strictly true in every particular, and yet the indorser not be liable. When the official certificate of a notary public states that he ‘ duly ’ notified the indorser, it is sufficient prima-faoie, to charge the indorser; because the notary could not properly say he had ‘ duly ’ notified him, unless he had given him notice of a demand as well as of nonpayment of the note. Bank v. Leonard, 43 Maine, 144; Pattee v. McCrillis, 53 Maine, 410.

But when the certificate does not use the words ‘ duly notified,’ nor any equivalent words, but simply states the naked fact that the indorser was notified of the non-payment of the note, without stating whether or not it had been presented for payment, and gives no excuse for not presenting it, there is no ground for inference, and .the court cannot properly decide that the indorser was notified of any other fact than that stated in the certificate.

In the case now before us, the only evidence of notice to the indorser is the statement of the notary that he ‘ delivered notice of the non-payment of said note to Washington Gilbert, demanding payment of him.’ He does not state whether or not the note had been presented for payment. Nor does he give any excuse for not thus presenting it. Nor does he say that he ‘ duly’ notified the indorser. Nor does he use any equivalent word or phrase. There is nothing from which the court can find that the indorser was notified of any other fact than the non-payment of the note, and that he was looked to for payment. Such a notice would be clearly insufficient. Every word of it might be true, and yet the indorser not be liable. Judgment for defendant.

Kent, Dickerson, Barrows, and Danforth, JJ., concurred.