Deacon v. Smaltz

Opinion by

Smith, J.,

The defendant is sued as executor of the indorser of a note. He is not called upon, therefore, to meet a claim against him personally, but to make defense to the testator’s contract of indorsement. In law this contract is that if, upon due presentment at maturity, the note be not paid by the maker, the indorser, upon due notice thereof, will pay it. The question here raised is whether the defendant, as executor of the indorser, was duly notified of the nonpayment of the note; more precisely: has such notice been adequately denied by the affidavit, so as to make this a question for the jury ? The material averment of the declaration is: “ At the maturity of said note .... it was presented to the maker .... and payment demanded, which was refused, and answer made, ‘ It will be attended to.’ Whereupon the said note was duly protested, and the indorsers, and also T. W. Smaltz, executor of the estate of Mary E. Smaltz, deceased, the first indorser duly notified.” To this it is replied: “ That the averment in said recited statement, that after the said note was duly protested, T. W. Smaltz, executor of the estate of Mary E. Smaltz, deceased, the first indorser, was duly notified, is not true; that no notice of the nonpayment of said note was in fact given to or received by the said T. W. Smaltz, executor of the said Mary E. Smaltz, deceased, indorser of said note as aforesaid.”

This case should not be made to turn on alleged statements of the maker at the time of demand. The material questions relate to a demand of the maker at maturity, nonpayment and due notice thereof to the indorser. The demand is material only as the first step in the process of charging the indorser, and would be ineffectual for this purpose unless followed by due notice to the indorser. It is explicitly averred in the affidavit “that no notice of the nonpayment'of said note was in fact given to or received by the executor of the indorser.” The affidavit is, in denial, as broad as the material averments of the declaration, and this has often been held sufficient to stay the judgment: McPherson v. Bank, 96 Pa. 135. The averment in the declaration sets forth a circumstance which, it is contended, implies notice. But the direct and absolute denial of notice is certainly broad enough to meet an allegation from which, at best, notice is only to be inferred. This denial raises an issue of fact which the defendant is entitled to have submitted to the jury: Publishing Company v. Hartranft, 3 Pa. Superior Ct. 59.

There is a serious doubt, presented in the plaintiff’s statement, as to what in fact was meant by the demand and the maker’s response thereto. It is not alleged that the defendant was told that he would be held as executor of the deceased indorser, nor is any explanation given of the defendant’s reply “ It will be attended to.” This response to a demand resting on his direct personal liability, with no reference to his representative character, does not necessarily imply action in that character. Demand on the maker and notice of nonpayment are not equivalents, in purpose or legal effect. The principal and distinctive purpose of a demand on the maker is not merely to lay ground for notice of dishonor to indorsers. The primary object is to obtain payment of the principal debtor, as required by the contract. It is therefore reasonable to presume, in the absence of all averment to the contrary, that this was the object of the demand in the present case. The holder had a right to look to the maker alone, and, under the statement, that may have been the understanding of the parties. This question of intent was for the jury. The legal effect of demand on a maker who is also executor of an indorser of the same paper, is not a question for determination at this stage of the case; by the declaration that question is made to depend on an uncertain averment, resting in parol, which can be better understood when more fully and clearly presented. The defendant has denied, in unequivocal terms, a material allegation of the declaration which goes to the whole claim, and this is sufficient to carry the case to the jury.

Judgment reversed and procedendo awarded.