Arnold v. Dresser

90 Mass. 435 | Mass. | 1864

Bigelow, C. J.

The defendant is not liable as indorser ot the note declared on. In order to charge him it was necessary for the plaintiff to show due presentment and demand of the note on both the promisors; Union Bank of Weymouth, &c. v. Willis, 8 Met. 504; or a waiver thereof by the defendant. There were no such presentment and demand. If a note is made payable at a particular place, the holder must have it at that place on the day of its maturity, in order to make due presentment; if it is not payable at a designated place, the note must be presented to the promisor at his usual place of business or at his dwelling-house. But no valid presentment and demand can be made by any person without having the note in his possession at the time, so that the maker may receive it in case he pays the amount due, unless special circumstances, such as the loss of the note or its destruction, are shown to excuse its absence. Shaw v. Reed, 12 Pick. 132. Freeman v. Boynton, 7 Mass. 483.

Nor was there any waiver of due demand by the defendant. No such waiver is made, where an indorser promises to pay the note in ignorance of the fact that he has been discharged by the loches of the holder, in not making due demand of the promisor, or where such promise is made under a misapprehension or mistake of facts concerning the due presentment and demand of the note. Low v. Howard, 11 Cush. 268. Kelley v. Brown, 5 Gray, 108. In the case at bar, the defendant made the statement on which the plaintiff relies to show a waiver, not only in ignorance of the fact that the note had not been duly demanded of one of the promisors, but under a mistaken belief that it had been so demanded, induced by the false statement to that effect made to him by the plaintiff. Exceptions overruled.