Martin v. Perqua — 72 N.Y. Sup. Ct. 225

Majority

p. 225

GEORGE B. MARTIN, Appellant, v. PETER A. PERQUA, Respondent.

Headnote

Bills and notes — what constitutes a waiver of notice of protest by an indorser,

In an action brought by George B. Martin, tbe bolder of a promissory note made - by John F. Conkey, against an accommodation indorser, it appeared that Martin -bad bad tbe note discounted at a bank, and bad paid it at maturity; that no demand of payment was made, por was notice of protest given to tbe indorser.

In order to show a waiver of demand and protest Martin produced a letter to himself from the indorser, in which be said be wanted no cost made on tbe notes; that be could pay them, and that be would secure Martin. Martin testified that in paying tbe note he relied on this letter as constituting a waiver of demand and protest.

It appeared that tbe word “notes” was used in tbe letter, because Martin then held another note made by Conkey, indorsed by tbe defendant, which bad been protested.

Held, that tbe language of tbe letter might apply to either note, and did not constitute a waiver of protest on tbe note in suit.

At a later date tbe indorser wrote to Martin asking whether Conkey paid tbe note in suit, according to a promise to do so made by Conkey, to tbe indorser.

Held, that this letter did not revive tbe indorser’s liability upon tbe note.

Appeal by tbe plaintiff George B. Martin from a judgment of tbe Saratoga County Court, entered in the office of the clerk of said county on tbe 23d day of September, 1891, reversing a judgment: for tbe plaintiff for $109.75 and costs, rendered in a court of a justice of tbe peace.

This action was commenced in Justice’s Court to recover against tbe defendant as indorse? of a promissory note. '

Upon the trial of tbe action in tbe Justice’s Court, Martin, tbe plaintiff, testified that be, relying on a letter of October twenty-ninth,, written to him by Perqua, as constituting a waiver of demand of payment and notice of protest, and paid tbe note in suit to save tbe indorser Perqua tbe costs of protest.

Ira D. Hoods and J. W. Hill, for tbe appellant.

Charles H. Sturges, for tbe respondent.

The complaint was in tlie ordinary form of a complaint by tlie bolder against an indorser, alleging tlie demand and refusal at tlie place where tlie note was payable and notice of protest to tlie defendant.

Tlie answer contained a general denial, and, among other separate defenses, alleged that tlie note was never presented for payment at the place designated as the place of payment, and no demand was made and no notice of protest ever given to the defendant.

On tlie trial no demand or notice of protest was proved, and the defendant asked the court to nonsuit the plaintiff for that reason, and that motion was denied by the justice, who thereupon rendered judgment for the plaintiff for the amount of the note and costs It is not denied by the respondent that to charge an indorser of a promissory note demand of payment, and notice to the indorser of non-payment, are necessary prerequisites to recovery against him, unless notice of protest is waived.

But it is insisted by the respondent .that notice of protest was waived in this case. The chief ground of that contention is a claim in a letter written by the defendant to the plaintiff in which he uses this language: “ No, George, I want no cost made on notes, I can in time pay them, and will, rather than ask Isaac to sign with me I will give you a claim on my interest in my father’s estate or will do anything to make you safe and satisfied.” This letter was written on the twenty-ninth day of October, the day before the note in question became due. At this time another note held by plaintiff, and on which the defendant was also an indorser, was about a month past due, to which the above language would apply with even more force than to the note in question, and it appears from other correspondence that tlie note which matured on the thirtieth da.y of October was paid, or that he relied upon the maker’s promise that he would pay it. On the tenth of November, after the letter of October twenty-ninth, he writes the plaintiff as follows: “ Did Oonkey (the maker) pay the note which fell due on October thirtieth ? ITe wrote me that he would meet it.”

In the absence of any express waiver of notice of protest, we do not think that one. can be implied from this correspondence. The defendant being an accommodation indorser, and not the principal debtor, there are no equities between him and the holder which

p. 227

requires the court to relax the rule which exists between the holder and indorser as to the notice of protest.

The plaintiff, who had procured tfie note to be discounted at the bank, voluntarily paid the same and withdrew it from the bank without suffering it to go to protest, and he expressly testifies that he did not present the note to any one, and demanded payment. On the day 'the note fell due, before three o’clock, the hour for closing the bank, he presented his owli check and took the note out of the bank; and no demand of payment of the maker, or notice of non-payment to the defendant, who yas the first indorser, was given.

By that omission the indorser was discharged, unless he had waived notice of protest, which, as we have seen, he had not. Nor do we think his letter of November tenth revived his liability on this note. We think the .judgment of the County Court, reversing that of the justice of the peace, is right and should be affirmed.

PutNAM and ILerrioK, JJ., concurred.

Judgment affirmed, with costs.