Judges： Hogeboom
Filed Date： 3/4/1867
Status： Precedential
Modified Date： 11/2/2024
The single question here is, whether notice, ■ given the day after the maturity of a promissory note, properly describing the paper, and merely stating that it had not been paid, and requesting payment, is sufficient to charge the indorser. For as the indorser in this case made ho promise to pay which would justify the inference of an intention to dispense with the observance of any of the formalities essential to charge him as such, we cannot properly say there was any waiver of due notice of the dishonor of the note, which can only be effectual when made with a knowledge of the facts. (Story on Prom. Notes, §§ 274-280. Trimble v. Thorne, 16 John. 154. Jones v. Savage, 6 Wend. 660.
It is believed that in principle and upon authority such notice is insufficient. The mere assertion of non-payment of commercial paper does not expressly, or by implication, show any dishonor, or that' payment, on due presentment, had been refused. The drawer of a bill of éxchange has the right to expect that his promise will be performed by the drawee. “ He has also,” said Chief Justice Marshall, in his opinion in the case of Ogden v. Saunders, (12 Wheat. 341,) “ a right to expect notice of its non-performance, because his conduct may be materially influenced by this failure of the drawee. He ought to have notice that his bill is disgraced, because this notice enables him to take measures for his own security. It is reasonable that he should stipulate for this notice, and the law presumes that he did stipulate for it.” And the' same reason and presumption are applicable to an indorser. He, too, is entitled to notice of dishonor. Story declares that the notice must contain “ an assertion that it (the note) has been duly presented to the maker at its maturity, and dishonored.” ® ® * “ But a mere notice of the fact that the note has not been paid, affords no proof whatsoever that it has been presented in due season, or even that it has been presented at .all; for it may be that the holder means to rely upon some legal excuse for non-presentment.” * * ® “ If, however, there be no statement of the dishonor of the note, nor any thing from which it can fairly be implied that a due presentment has been made, the notice would seem to be fatally defective.” (Story on Prom. Notes, 5th ed. §§ 848, 850, 351, 354.)
Kent says, “ the notice must specify that the bill is dishonored. * * * There is no precise form of the notice. It is sufficient that it state the fact of non-payment and dishonor of the bill.” ( 3 Kent, 150, 151.)
Parsons says, “ the purpose of notice is, that the party receiving it may obtain security from the party liable to him
Edwards says : “ The fact to be communicated in some form is, that the note or bill has been dishonored by the default of the acceptor or promissor.” (Edw. on Bills and Notes, 593. See also p. 595.)
And the same rule appears to be established by the English courts and those of our own.state. In Wynn v. Alden, (4 Denio, 163,) the note was duly presented to the maker for payment, which was refused, and on the same day notice in writing, hut without date, was mailed to the indorser, stating that the note, which was properly described, had “this day been presented to the maker for payment, and payment refused,” and adding that the holder would look to the indorser for the payment of the same. The question was whether the notice showed that the presentment and demand were made at the proper time. The notice was held sufficient, in the common pleas, but the Supreme Court reversed the judgment, and Justice Beardsley, in delivering the opinion of the court, said: “ Payment of a note should be demanded at its maturity, when it becomes due and is payable; and the notice should so state. The contract of the indorser is conditional, and only binds him to pay the note when such demand has been made and payment refused, and due notice
In Dole v. Gold, (5 Barb. 490,) the question now before us was distinctly decided. The notice described the note and stated that it was due that day and had not been paid ; that the plaintiff was the owner and holder of the note, and looked to' the defendant for payment. The court entered at large into an examination of the authorities, held the notice insufficient as not sufficiently indicating the dishonor of the note, and laid down this rule, as expressed in the head note of the case : “ A notice to an indorser must in express terms, or by necessary implication, convey to him information of the fact that the note has been dishonored by the maker; or such notice will be insufficient to charge him.”
In Cook v. Litchfield, (5 Selden, 286,) Oh. Justice Buggies said: “ The object of the notice is to put the indorser in possession of the material facts on which his own liability is founded, so that he may be enabled to take the necessary measures for his own security or indemnity against those who are liable over to him. A notice which is barely enough to put the indorser on inquiry is not sufficient.” . “ It is well settled that there is no precise form of words to be used in giving notice ; it is sufficient if the language used is such as in express terms or by necessary implication to convey notice to the indorsers of the identity of the note and that payment of it on due presentment has been neglected or refused by the maker.” (Cayuga County Bank v. Warden, 1 Comst. 417.)
The following are some of the English authorities bearing against the sufficiency of the present notice: Hartley v. Case, (4 Barn. & Cress. 339;) 10 Com. Law Rep. 606; Solarte v. Palmer, (7 Bing. 530;) 20 Com. Law Rep. 238; 27 id. 602; Boulton v. Welsh, (3 Bing. N. C. 688 ;) 32 Com. Law Rep. 283; Strange v. Price, (10 Ad. & El. 125;)
“ A notice given to the indorser of a note in the forenoon of the day on which it becomes due, merely stating that the person giving notice holds the note, and that is due and unpaid, and demanding payment, is not sufficient to charge the indorser,” the note having been duly presented and dishonored. . (Gilbert v. Dennis, 3 Metc. 498.)
“ A notice to the indorser of a note, which merely states (after describing it) that the note remains upáid, and that the holders look to him for payment, is not sufficient to charge the indorser, although such notice is given by a notary public.” (Pinckham v. Macy, 9 Metc. 174.)
In Townsend v. Lorain Bank, (2 Ohio B. 355,) Eanny, J. after reviewing the English and American authorities on this question, said : “ It thus appears that in England and the great commercial states of Massachusetts, Mew York and Pennsylvania, the rule is firmly established that the holder, in order to charge the indorser, must inform him, in the notice he gives, that the note or bill has been dishonored ; that it will not be inferred from mere notice of non-payment. * * * And we apprehend the rule has its foundation in the very elements of the contract into which the indorser enters, and is indispensable to the protection of his rights. * * * He promises to pay.it provided the holder, if payable at large,.at the maturity of the instrument, presents it to the maker or acceptor for payment and it is refused ; or, if payable at a specified place, if the latter neglects to have funds there to take it up, and in either case he is immediately notified of the fact that it is thus dishonored.”
The following are instances in which the terms employed in the notice have been held reasonably to imply a due presentment and refusal to pay: “ Has been protested for" nonpayment, and the holders thereof look to you.” (Mills v. Bank of the United States, 11 Wheat. 431.) “Was this
The judgment must be reversed, and a new trial granted, with costs to abide the event.
Peckham, J. concurred.
Miller, J. dissented.
Judgment reversed.
Peckhan, Miller and Kogebomn, Justices.]