13 Barb. 163 | N.Y. Sup. Ct. | 1852
The defendant Lytle was entitled to judgment, unless the assignment to him, or his promise to pay, renders him liable without demand and notice. The insolvency of the makers did not excuse want of demand. (Chit, on Bills, 449. Story on Bills, §§ 326, 346.) Absconding would. (Taylor v. Snyder, 3 Denio, 151. Chit, on Bills, Perk. ed. 354, n. Story on Bills, § 327.) But the proof does not show that either of the makers could be considered as having absconded when the note matured. Osborne was there, and Wooclin had been but a few months before, and was probably then in New-York. It is quite clear, no demand was made or notice given at the proper time. Hone has been proved, and there were both demand and notice five days too late, which, impliedly, negatives a demand before. Prima facie then, the defendant was discharged. (Commercial Bank v. Hughes, 17 Wend. 99.) W as he liable because he was assignee; or because of his promise? It has been decided that an assignment of all the property of the maker to the indorser, or of sufficient to pay the note, and for that purpose, dispenses with demand and notice. (Corney v. Da Costa, 1 Esp. 502. Bond v. Farnham, 5 Mass. Rep. 170. Mechanics’ Bank v. Griswold, 7 Wend. 165. Chit, on Bills, 368, 473, 489. Story on Bills, § 374. Spencer v. Harvey, 17 Wend. 489. 1 Cowen’s Tr. 248.) Though an assignment to trustees to pay the note and other debts, it is said, is insufficient. (Creamer v. Perry, 17 Pick. 332. And see Story on Bills, § 316.) And so of a judgment taken as indemnity, about which there is litigation, no funds or property having come into possession. (Spencer v. Harvey, supra.) It was averred in the first count of the declaration, in Mechanics’ Bank v. Griswold, that the property assigned exceeded the liability; and in the second, that the makers assigned all their property. In such cases, the principle of liability has been said to be, that it amounts to an agreement to take up the note. (2 Smith’s Lead.
Again, it is said the promise was a waiver of the demand and notice. An unconditional promise, with full knowledge of all the facts, undoubtedly is so. (Reynolds v. Douglass, 12 Pet. 505. Thornton v. Wynn, 12 Wheaton, 183. Tebbetts v.
But in another view I think the report must be sustained. If the testimony is true, on the 9th day of April, the day before the note became due, the defendant made an express promise to pay it on the 12th or 13th. On the 13th, he again promised to pay it in the afternoon of the same day; and on the 15th pretended he was then on his way to pay it. The referee, however, in giving his opinion, doubted the evidence of a promise after the note came to maturity. The witness is not impeached unless by bias, but if the referee did not believe him, the case must rest on the promise made on the 9th of April.
Where the necessary steps to fix an indorser are prevented by some act of the latter which puts the holder off his guard, the holder is excused. (Leffingwell v. White, 1 John. Cas. 99. Spencer v. Harvey, 17 Wend. 491. Coddington v. Davis, 1 Comst. 186 : S. C. 3 Denio, 16. Story on Bills, § 371. Burgh v. Legge, 4 M. & W. 418. Leonard v. Gary, 10 Wend. 504.) Story says, a mere verbal agreement which may mislead, but does not purport to waive such presentment, will not be available. (Story on Bills, § 371.) And he cites Free v. Hawkins, (1 Holt’s N. P. R. 550; S. C. 8 Taunt. 92;) and Chitty on Bills, 446, which relate only to a parol agreement not to put the note in suit. In Prideaux v. Collier, (2 Stark. Rep. 57;) Cayuga Bank v. Dill, (5 Hill, 403,) and Free v. Hawkins, (supra,) the holders were not, or had no reason to be, misled. Hero the holder knew that the defendant and another held an assignment
Willard, Hand and Cady, Justices.]
Judgment affirmed.