Griffin v. Goff — 12 Johns. 423

Majority

p. 423

Griffin against Goff.

Headnote

A demand of premissor/fiote until on the third, or last day of grace, unless that day he Sim<¡«y. in widen case, it may be oTthsZ~

a deSeñtis°mariPe'oá a^e ™ paysble. and notice is given to the endorser on the third day thereafter, the endorser is not liable; and a subsequent promise to pay will not make him liable, unless it be explicit and unequivocal, and with a full knowledge of all the facts.

THIS was an action of assumpsit, on a promissory note, brought by the plaintiff as endorsee,, against the defendant as endorser, tried at the Jefferson circuit in June last, before Mr. T . ^ Justice operi'Cer,

p - - ti ~ 1 he note was lor 255 dollars, drawn by one Johnson, at Off- ' ^ ° densburgh, August 12, 1814, payable to the defendant, or bearer, the 1st day of December (then) next. The defendant endorsed the note in the following words: “I order the contents of the within note to be paid to Daniel Griffin. Nathan Goff.”

p. 424

A witness for the plaintiff testified, that, on the 1st of Decém*. her, 1814, he went to.Champlin, where Johnson, the maker of the note, resided, to demand payment; that the maker was not at-home, and could not be found, and no person was there to pay the note. On the third day thereafter, the witness, went to the house of the defendant, at Ogdensburgh, in'Si. Laurence county, for .the purpose of giving him notice of the nonpayment of the nóte’; but the defendant was riot at home ; and he gave notice to" a person who' was there, who said he was' the clerk of the defendant,, ef the. -non-payment of" -the noté, arid that the plaintiff would look to: the ¡defendant for. payment of it ; and- the clerk promised to inform the defendant, accordingly, as soon as. he returned- home. It appeared that, a short time before the trial,, the defendant being asked -whether he had any defence to the suit, said, “he knew of no defence,” On this evidence, a verdict was taken for the plaintiff, subject to the Opinion of the court, on a. ease containing the above facts, and which was submitted to the court without argument. . ,

delivered the opinion of the c'ourt. - It is perfectly settled,, that to fix an endorser,' the holder must demand,- or use due diligence, to obtain payment of the note, when it ‘becomes due;, and that when the maker makes, default, he must give notice thereof, with due diligence, to the endorser, , It iS-equally well settled, that -when a negotiable, note is endorsed, it is not tfernsndatile until the third day- of grape, unless the» third day be Sunday, in which case it is due on the sepond day; and that where notice is given to the endorser, prior to the demand .on the mak.er, it is null, as. thp drawer was not in default When the notice was given. These principles were recognised rind enforced in the case of Jackson v. Richards. (2 Caines, 343.) In the present case, the demand of payment being made, at the house of the drawer, before the note was payable, is as no-demañd; it was a perfectly nugatory act; payment might have been demanded, with as much proprietj7, on.the day the note was given. There was'then no default on the part of. the drawer, for the. want of demanding payment on the last day of grace, and? consequently, the notice to the endorser was a nullity.

‘ Ip Duryee v. Dennison, ( 8 Johns. Rep. 248 .,) it was decided, that if; an endorser has not had regular notice of non-payment bv the drawer, yet if, with a knowledge of that fact, he makes

p. 425

a subsequent promise to pay, it is a waiver of the want of due notice. The same principle was also recognised in Miller v. Hackley, ( 5 Johns. Rep. 385 .,) and in that case it was proved, that the defendant said that he would take care of the bills, or see them paid. The court held that this was not enough, that-the promise ought to be (Jearly and unequivocally made. out.

Here there is no promise. The defendant knew of no defence, This is extremely slight; and by no means waives any objection which the law puts into his hands.

Judgment for the defendant,.