Agan v. M'Manus — 11 Johns. 180

Majority

p. 180

Agan against M'Manus.

NEW-YORK,

May, 1814.

Headnote

A.,yin the 3ist madeja mité payable to B., demand, who &d°iue<¡5prí7i keí'áhsconded". c. having fro-quern ly demanded pay-maker,°fwith”mreleC¡si2n left the note was an altorthe money r* and after A. iis.ii Suicniifipn B. offered c. tó note, ami ¿ve him- another year; but the accepted by c. TCdhateóme" place, and within 10 miles ofB, thI?eavinghof Beby°c.'was not equivalent to a notice of non-payment; ferofB.togive C. another note, such a promise to pay as would make B. liable on that ground, the offer not having been accepted; nor was it a ivai~ *yer of notice of non-payment. The doctrine as to waiver of notice of the dishonour of bills of exchange does not apply to promissory notes. Notice, in the ordinary course of business, can be dispensed with only where die insolvency of the maker is known at the time of the endorsement

THIS was an action of assumpsit, on a promissory note, dated TTuly 31, 1811, made by Hiram Clowes, payable on demand, with interest, to the defendant, or order, and by him endorsed to the plaintiff. The cause xvas tried at the Rensselaer circuit, in 1813, before'the Chief Justice.

Clowes, the maker, absconded the 29th of April, 1812. The defendant was indebted to him, and had no effects in his hands , from the time the note xvas given, to the time he went away, On the If th of March, 1812, the plaintiff left the note with the defendant, xvho is an attorney of this court, and desired him to The defendant immediately obtain the money of the maker, afterwards called-on the maker and demanded payment, and the ma^er said he could not pay the note. After Clowes had absconded, the defendant told the plaintiff that he xvould take up y - .L this note, and give another payable in a year; but the plaintiff required an endorser on the nexv note, xvhich was not given,

was proved that after the note was left with the defendant, and after Clones had absconded, the plaintiff stated to the defendant that he had called upon the maker for the payment (before he left the note xvith the defendant) until he xvas tired, and wished the defendant to obtain the monev from Clowes. v

The plaintiff and Clowes lived in the same town, and within 1° miles of the defendant.

The Chief Justice, on this evidence, directed the plaintiff to be called, and he xvas nonsuited, xvith leave to move the court , . , ... to set aside the nonsuit, and grant a nexv trial.

The cause was submitted to the court, without argument.

delivered the opinion of the court. The motion to se.t aside the nonsuit must be denied. There xvas no notice of a demand of payment from the maker; nor xvas there any promise by the defendant to pay the note, or other circumstances rendering such notice unnecessary. The note is dated

p. 181

the 31st of July, 1811. At what time it was endorsed by the defendant does not appear. It is, however, necessarily to be inferred from the case, that it was some time previous to the 17th of March, 1812: for on that day the note was left with the defendant, by the plaintiff, for the purpose of obtaining payment from the maker; and it appeared that, some time previous to that day, the plaintiff had called on the maker for payment. It is evident, therefore, that when the note was left with the defendant, it was not intended as a notice of non-payment, or a demand of payment from the endorser; for it was left, as is stated, for the purpose of obtaining the money from the maker.

There was no promise of payment by the defendant sufficient to charge him on that ground. There is no doubt that if an endorser of a note, ivho has not had regular notice of nonpayment by the maker, does, with full knowledge of the fact, make a subsequent promise to pay, it is a waiver of the want of due notice, and he may be made liable for the payment. ( 5 Johns. Rep. 248 .) But if such promise be a qualified or conditional one, and rejected by the holder of the note, it is no waiver, according to the decision of this court, in the case of Crain v. Colwell. ( 8 Johns. Rep. 384 .) The promise or offer of the defendant to take up this note, and give his own payable in one year, was a promise of that description; and having been re-, jected by the plaintiff, was not binding upon the defendant.

The objection that the defendant had no funds in the hands of Clowes, the maker, and could, therefore, sustain no damage, by not having received notice of non-payment, cannot apply to this case. The consideration for this note must be taken to have been received by the maker, and he is the person who ought in justice to pay it, and is bound ultimately to make it good.

Where the money raised upon the note is received by the endorser, as where the note is discounted for his accommodation, and he is the person who is ultimately to pay it, notice of non-payment by the maker may not be necessary.

There is no evidence that Clowes v as insolvent when he made, the note, or when it was endorsed by the defendant. The. plaintiff must, therefore, be considered as taking it in the ordinary course of business, with an understanding of all the legal consequences attached to the endorsement; that the trnderfaking of the endorser was conditional, that the holder

p. 182

bound to demand payment from the maker, and give reasonable notice of non-payment, before he could call upon the endorser.

The doctrine applicable to waiver of notice of the dishonour °f bills of exchange, does not apply to promissory notes; and it seems now to be settled, in England, that if such notice in the ordinary course of business can be dispensed with in any case, it is only where the insolvency of the maker was known at the time of the endorsement. ( 2 Caines’ Rep. 343 . 4 Crunch, 141. 2 H. Bl. 609.)

Motion denied.