Vreeland v. Hyde — 2 N.Y. Super. Ct. 429

Majority

p. 429

Michael D. Vreeland versus Simeon Hyde.

Headnote

The defendant endorsed a promissory note, payable on demand, made to secure the payment of a sum of money loaned to one of the makers, by the plaintiff The note was not made for commercial purposes, nor was it ever negotiated, and the holder resided out of the state of New-York. At the end of 19 months from its date, demand of payment was made, which being refused, notice was given to the endorser, who claimed to be discharged by the laches of the holder.

Held, that the rule requiring promissory notes, payable on demand, to be presented within a “ reasonable time” was applicable chiefly to those which are made for commercial purposes. That the present was to be likened to a case of guaranty or suretyship, and that the defendant was liable on his endorsement.

This was an action of assumpsit,brought by the endorsee against the defendant, as endorser of a promissory note of the following tenor.

New-York, June 18, 1827.

On demand, we promise to pay to the order of Simeon Hyde, eight hundred dollars, for value received, with interest from date, without default or defalcation. Hyde & Banta.

Witness, John V. Bantav

The note was endorsed by the defendant, and the following memorandum was entered upon the back of it. “ Paid, June 18, “ 1828, one year’s interest on this note, which is 48 dollars.”

At the trial of the cause, the subscribing witness, being called by the plaintiff, testified, that he had been a clerk in the employ

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ment of Hyde and Banta; that the defendant was their “confidential endorser,” receiving the same favor from them in return. That the plaintiff was a farmer by occupation, an old man, between 70 and 80 years of age, residing at a place called “ The English Neighborhood,” in the state of New-Jersey, about twelve miles from New-York. That the plaintiff loaned to Banta, (one of the makers,) the sum of 800 dollars, on the 8th of June, 1828, and received the aforesaid note, endorsed by the defendant, as security for the repayment of the loan.

The interest on the note was paid at the end of one year from its date, but it did not appear that any demand of payment was made of the makers, until the 23d of March, 1829, and notice was given to the endorser the next day. At the date of the note, Eleazer Hyde, one of the makers, was dead, and his house had become insolvent, having made an assignment of their property to John E. Hyde, the defendant, and one W. Cox, for the benefit of their creditors; and it was stipulated in a schedule of said assignment, that if the defendant was liable on his endorsement of said note, that, then, the amount should be refunded to him out of the proceeds of the assignment.

Upon this state of facts, the defendant contended that he was not liable, being discharged from his endorsement by the laches of the holder, in not making demand and giving due notice. The presiding Judge (Hoffman) remarked, that the points presented were chiefly questions of law, and by his recommendation, a verdict was taken for the plaintiff, subject to the opinion of the court upon a case, either party having liberty to turn the same into a bill of exceptions.

The cause was now argued by Mr. S. B. Romaine, for the plaintiff, and Mr. J. A. Foot, for the defendant.

[Mr. Romaine cited Chitty on bills, 197. 2 Caines’ R. 369. 4 J. R. 224. 13 Mass. R. 131 . 1 Term R. 167. 1 Cowen’s R. 397. 13 East’s R. 187. Mr. Foote cited the same case from Cowen and Chitty on Bills, 269.]

This was an action against the defendant, as endorser of a promissory note, dated the 18th day of June, 1827, payable

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on demand, with interest. The defendant resided in New-York, and the plaintiff in the state of New-Jersey, about 12 miles from the city. The demand of payment, of the makers, was made on the 23d of March, 1829, and notice given to the defendant, as endorser, on the next day. The question is, whether the defendant was discharged by the delay in demanding payment.

It is settled in our courts, that a note, payable on demand, must be presented for payment within a reasonable time, and notice given to the endorser, and that when the facts are ascertained, what is a reasonable time, is a question of law. [Sice v. Cunningham, 1 Cowen 408. Furman v. Haskin, 2 Caines’ R. 369.] Every case must, in some measure, depend on its own circumstances. In the present case, it appears that the note was given for a loan of money, and upon interest, and that the interest was paid and endorsed on the note at the end of one year. Although there is no explicit evidence to show that the defendant knew the purpose for which the note was made, or how it was used by one of the makers, for whose accommodation it was endorsed; yet, the circumstances of the case are sufficient to justify the belief that the defendant was apprized of the plaintiff’s possession of the note; and it evidently was not made for the ordinary purposes of mercantile negotiation. This is apparent from the phraseology of the note itself, and the caution with which it is worded. It is payable on demand, it is true, but it bears interest, and is to be paid by the makers without “ default.” This is sufficient to show that the endorsement of the defendant, was obtained under no ordinary circumstances, and that the makers had assured him, that he should come to no harm by his act of endorsing. The note itself bears evidence upon its face, that it was given to secure the re-payment of a loan, and that it was not to be demanded at the usual time, and that the endorser was considered in the light of a surety or guarantee.

The rule, requiring a presentment within a reasonable time, was intended for, and is applicable to negotiable instruments made for commercial purposes only. It was not intended for cases of suretyship, or notes of a like description, and the present one is, evidently excluded from the rule, by the peculiar circumstances

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attending it. Here the holder was an old man, not connected with business, residing at some distance from the city. The defendant knew these circumstances, and cannot claim any peculiar, indulgence from a consideration of the facts. As each case is governed in some degree, by the circumstances attending it, in this, there must be judgment for the plaintiff.

Judgment for the plaintiff.

S. B. Romaine, Att’y for the plff. A. Dey, Att’y for the deft.