Demond v. Burnham

133 Mass. 339 | Mass. | 1882

W. Allen, J.

The defendant in his answer does not deny, and therefore admits, that he indorsed the note declared on. It must be taken, therefore, that the words “ Brighton District,” were upon the note when it was indorsed. These words do not designate the place at which the note is payable. They are not inserted in the blank left in the body of the note for the place of payment. They follow the signature, and are connected only with that, and can have no greater effect than to identify the maker as of the Brighton District. The court will take notice that the Brighton District is a part of Boston; and the utmost effect that can be given to the words is to treat them as a part of the date of the note, as if they had been written before the word Boston. They cannot be construed as if the words “ payable at the place of business of the maker in” had been written before them, and we are not called upon to decide what effect they would have if they had been so written.

The question is, whether there was sufficient evidence of a demand upon the maker to charge the indorser. The promise not being to pay the note at any particular place, demand must be made upon the maker personally, or at his place of business, or at his residence, or a sufficient excuse for not making a demand must be shown. No demand was made, and the excuse for not making one is that the maker could not be found. This is a sufficient excuse, if it appears that reasonable diligence was used to find the maker, his residence and place of business. The evidence tends to show that when the note was given, and until “ some weeks ” before it became due, the maker had a place of business in the Brighton District; that, on the day the note became due, a notary public went with the note to that place and found it closed and unoccupied; that he made inquiries at a hotel opposite to it, but could find no other place of business of the maker. There is no evidence that he made any further inquiries, or any attempt to find either the maker or his place of business or residence. The general statement that he could get no other trace of the maker must be taken in connection with the effort which it appears he made to get some trace. The most that can be inferred from this is that the maker had no place of business when the note became due. Giving to the note and the evidence the effect most favorable to the plaintiffs of which they will admit, the case is presented of a note, not payable at a particular place, dated at Brighton District, Boston, the maker of which has no place of business. The note is then payable at his residence, and demand should be made there, or upon him personally. But no attempt was made to present the note where it was payable. It was treated by the notary as a note payable at a particular place, and a demand was attempted to be made only at that place. After the notary had ascertained that that was not the place of business of the maker, and therefore not the place of payment of the note, no diligence whatever was used to find the place of payment. There was no evidence that the maker did not have á place of residence in the Brighton District, nor that it was not known to the plaintiffs, the payees of the note, nor that the notary could not have found it, had he made any inquiry or looked into the city directory. The only ground upon which it.can be held that a demand was not necessary in this case is, that a demand need not be proved until the defendant had proved that the residence of the makers was known to the plaintiffs, or could have been found by reasonable diligence. Generally, when such questions are tried, the place of residence of the maker will be in evidence, and that evidence may be decisive, on the one side or the other, of the question of diligence; but where no evidence is offered in regard to that, and all that appears, besides the note itself, is that a notary was employed to make a demand, who made no attempt to find the place of residence of the maker, but contented himself with an ineffectual demand at the maker’s former place of business,—where it does not appear that his residence was not at the place of the date of the note, and was not known to the plaintiffs, or could not have been found on reasonable inquiry, — it cannot be said that that diligence was exercised which will excuse a demand. The presumption that the maker resided where the note was dated is not controlled or weakened by the fact that he had a former place of business there which he had recently ceased to occupy, or that an indorser, when sued, did not fortify the presumption by evidence. Talbot v. National Bank of the Commonwealth, 129 Mass. 67. Granite Bank v. Ayers, 16 Pick. 392. Smith v. Philbrick, 10 Gray, 252. In the opinion of a majority of the court, there must be Judgment on the verdict.