15 Ill. App. 76 | Ill. App. Ct. | 1884
The only question that need be considered in the present case is as to whether the requisite notice of the non-payment of the note was given to appellant to charge him as indorser. The contract of indorsement is regarded as entering as a condition in the contract, of the drawer or indorser of a bill, or of the indorser of a note, that he shall only be bound in the event that acceptance or payment has been duly demanded, and he be notified if it is not made: 2 Daniell on ¡Neg. Inst., 28. At common law, which includes the lex mereatoria governing negotiable paper (Cook v. Renic, 19 Ill. 598), the performance of this condition was indispensable to the fixing of a liability upon the indorser. 2 Daniell on Neg. Inst., p. 28; Bond v. Bragg, 17 Ill. 69; Cicotte v. Morse, 8 Mich. 428. Here the note was dated at Detroit, in the State of Michigan, and in the absence of proof to the contrary, will be presumed to have been indorsed there. Maxwell v. Vansant, 46 Ill. 58; Daniell on Neg. Inst., § 728.
The indorsement created a new and distinct contract, and is governed by the law of Michigan where it was made: 2 Par. Con. 568; Holbrook v. Vibbard, 2 Scam. 462; Bond v. Bragg, 17 Ill. 69; Maxwell v. Vansant, supra. In the absence of proof to the contrary, the courts of one State will presume that the common law is in force in a sister State: Crouch v. Hall, 15 Ill. 263.
The statute of Michigan which was put in evidence, in no way changes the rule of the common law as above stated. It provides that whenever the indorser of a promissory note shall reside or have a place of business in the same city, village or township, where such note is made payable, or may be legally presented for payment, the notices of non-payment may be sent by depositing such notices, with the postage prepaid, in the local post office, properly directed to such indorser, and whenever any note shall not be made payable at any place, notice of non-payment may be served by depositing the same in a post office, prepaid, directed to the indorser at his reputed place of post office delivery, to be ascertained by the best information that can be obtained by diligent inquiry. In the present case no notice directed to appellant was sen'. The notary’s certificate, which was the only evidence offered on that subject, show's upon its face, that it was directed to Z. E. Hewell, Cashier, Hew York City. How.the notice happened to be thus directed does not appear. It is enough that this was not a compliance with the law. The Supreme Court of Michigan has decided that neglect to give notice to the indorser is conclusively presumed to injure him, and the law' will not permit the contrary to be shown. Smith v. Long, 40 Mich. 555. Appellant testifies that he never received the notice, and first learned of the non-payment of the note two years afterward by a letter received from appellees.
As to the claim that a suit against the maker would have been unavailing, it is sufficient to say that no proof was offered of the existence of any law in the State of Michigan, excusing the indorsee of a note from the use of diligence to collect of the maker by reason of the insolvency of the latter. And if such proof had been made, the evidence of tire insolvency of Twombley & Go. was insufficient.
The judgment of the court below must be reversed, and the cause remanded for a new trial.
Reversed and remanded.