Fullerton v. Rundlett

27 Me. 31 | Me. | 1847

The opinion of the Court was by

Whitman C. J.

It does not seem to be reasonable to doubt, that the note in question was made, and intended to be, in pursuance of the previous agreement, testified to by the witness, Charles Cargill. The defendant, on the 10th of January, 1844, called upon the witness, and accompanied him to the plaintiff’s house, his object being to obtain a loan of money ; and proposed to her to obtain a note signed by one Chapman, for the amount wanted, and to become absolutely bound with him for the repayment of the amount to be loaned. The plaintiff then, in the presence of the defendant, applied to the witness to ascertain, if that would be sufficient security, and, on being informed that it would, she assented to the proposition ; and thereupon the defendant left, saying he should procure the note soon. In two days afterwards he procured the note in suit, and delivered it to her, with his name in blank upon it. The defendant must have seen, that the plaintiff understood, from the advice she had received in his presence, that the defendant was to be absolutely holden for its payment. The note was made payable on demand; yet he requested she should give the maker time in which to pay it, assigning as a reason, that he had further demands against him ; meaning, no doubt, that to press him for payment immediately would diminish his ability to pay any more than the amount of the note : from all which he must have known that the plaintiff understood, that she was not to take the usual steps to charge him as an indorser, merely, of a negotiable piece of paper: and his subsequent conduct was in accordance with such a supposition ; for on being applied to, after the death of Chapman, and the known insolvency of his estate, and when he knew that he had not been notified of any demand and refusal of the maker to make payment, he recognized his liability by remarking that, whether liable or not, he would pay whatever Chapman’s estate should fail to pay.

We can have no doubt that the evidence of the contract, previous to the making of the note, and in reference to it, was regularly admissible as tending to show the terms upon which the note was received, and especially when connected with the subsequent conduct and declarations of the defendant. On the whole, when all the evidence is considered together, we think the conclusion is irresistable, that the note was received by the plaintiff with the understanding, of which the defendant was perfectly conusant, that demand on the maker, and notice to defendant of non-payment, were not intended to form a condition upon which alone the latter should become liable.

Defendant defaulted.