13 S.C. 338 | S.C. | 1880
The opinion of the court was delivered by
This action was brought against the defendant as endorser of a promissory note for $250, made by one Francis Hammond, June 19th, 1878, payable sixty days after date, and protested for non-payment on August 21st, 1878.
The defence interposed was based upon three grounds: 1. That the note was in blank when it was endorsed by the defendant, and that it was agreed at the time, between defendant and Hammond, that it should be filled up for $100, and that the plaintiff had notice of such agreement. 2. That it was also agreed at the time of the endorsement, that three notes should be executed and used as renewals of each other, so as to make the amount fall due “when the cotton crop should come in.” 3. That due notice of the dishonor of the note had not been given, so as to charge defendant as endorser. The exceptions to the judge’s charge were designed, doubtless, to raise three questions: 1. Whether the fact that the amount secured by the note was in blank at the time of the endorsement could affect the question of the defendant’s liability. 2. Whether the parol agreement, made at the time the notes were endorsed, that the notes should be renewed was a good defence to the action. 3. Whether the
As to the first question, we do not see how it can arise under the evidence adduced in this cause; for there is no evidence whatever tending to show that there was any understanding between the plaintiff and the defendant that the amount to be inserted in the note should be limited to $100, but, on the contrary, the plaintiff distinctly testifies that the note was filled up for $250 before the endorsement was made; and. although the defendant in his answer, which is not evidence, does say that he endorsed the note in blank, with the understanding that the amount to be inserted was $100, and that the plaintiff had notice of such understanding, yet, in his testimony, which is evidence, he only says that such was the agreement between him and Hammond, and does not even intimate that the plaintiff was a party to or had notice of any such agreement. It is clear, therefore, without entering upon the hypothetical inquiry .as to what would have been the legal effect of such testimony, if it had been adduced, that there was no error on this point; for, certainly, no private understanding between the defendant and Hammond, not brought to the notice of the plaintiff before he took the note, could affect the question of the defendant’s liability.
The next inquiry is as to the effect of the parol agreement, made at the time of the endorsement of the note, that it should be renewed from time to time. The proposition that where a person signs or endorses a note payable at a particular day, or, what amounts to the same thing, where he signs or endorses a note in blank, which is afterwards filled up by being made payable at a particular day, (Carson v. Hill & Jones, 1 McM. 76; Aiken v. Cathcart, 3 Rich. 133,) parol evidence can be admitted to show that the agreement was that it should not in fact be payable on such day, but should be renewed, cannot be sustained. We take the rule to be as stated in Chitty on Bills, ch. II., p. 61: “If the instrument, on the face of it, purport to be an absolute engagement to pay money at a certain time, no parol evidence of
The next inquiry is as to the propriety of the charge upon the question of diligence. The evidence was that the endorser was a resident of Richland county, and that Columbia was and had been his post office for the past thirty years, and that Eastover
It also appeared from the plaintiff’s testimony that he sent a notice of protest by private hand to the defendant some'time in ■September, 1878, and the defendant testified that he never received any notice of the dishonor of the note until September 12th, 1878, .when he received a note from the plaintiff notifying him of the fact. In this case the question of diligence involved two inquiries — one of fact and the other of law. Whether due ■diligence was used in ascertaining the post office of the’defendant, was a question of fact for the jury, but when the fact of residence was ascertained, or when due diligence had been employed in endeavoring to ascertain such fact, the question of diligence in giving the notice is a question of law, upon which it was the duty of the court to have instructed the jury. Thompson v. Bank, 3 Hill 82-3; Central Bank v. Adams, 11 S. C. 452; Bateman v. Joseph, 12 East 433. As is said in the last-named case: Whether due notice has been given of the dishonor of a bill, all the circumstances necessary for the giving of such notice being known, is a question of law; but whether the holddr has used due diligence to discover the place of residence of the person to whom the notice is to be given, is a question of fact for the jury.” In this case the whole question of diligence was left to the jury, and it may be that they concluded that the notice sent on September 12th, 1878, was sufficient to charge the endorser. Be that as it may, however, it was error to refer to the jury the question “ whether due diligence had been used in giving notice of the dishonor of said note to the defendant Roberts.”
The judgment of the Circuit Court is set aside and a new trial is ordered.