Hough v. Young ( 1824 )

By the Court :

The declaration states that the note in question was dated the 20th day of May, 1819, and was payable sixty days from the 1st day of June in the same year. It also avers that the defendant, on the 3d day of August, 1819, proceeded to make the demand and give the notice of non-payment necessary to charge the indorser ; but did these so negligently that the indorsers were not charged. At the trial the negligence proved and relied upon was, that the demand and notice was made upon the 2d day of August, which, being the day before the last day of grace, was inoperative. The proof is in contradiction to the declaration which avers a demand and notice on the right day. This being the material point of the whole case, it was certainly not competent for the plaintiff to sustain his action by proof so essentially variant from his allegations; though in personal actions generally the day is immaterial, it may nevertheless be made material by the pleadings. And such is the case here; the declaration gave no notice that the negligence complained of referred to the day of giving the notice. The defendant could not come prepared to repel that which the plaintiff averred; yet this he must do, if, upon the proof offered, the plaintiff could recover’. The instruction of the court, that the plaintiff ought to have a verdict, was therefore incorrect. It is unnecessary to decide upon the principal ground of liability.

The rule laid down for assessing damages was also incorrect. If the drawer of the note is solvent, the plaintiff may yet recover from him the amount. This right is not affected by a recovery here. In that event this defendant is only answerable to the plaintiff for the expense incurred in taking '^measures to charge the indorsers, and for disappointment in that particular. To charge him with the whole amount of the note the plaintiff ought to have produced proof that the maker was insolvent. In the absence of this, and of all other proof, he could only recover nominal damages.

New trial granted.