2 Port. 308 | Ala. | 1835
This action was assumpsit, brought in the Circuit Court by the present plaintiff against the defendant, on a promissory note payable by S. W. Maples to the defendant, and by the latter indorsed to the plaintiff-.
The first count is in the usual form upon the note ; the second and third counts are also on the note, with averments of the insolvencjr of the maker at the time of the indorsement, and ever since, and of the indor-ser's knowledge of the fact: the fourth count is for a slave sold and delivered by the plaintiff to the defendant; the fifth count is for money lent and advanced, money paid, laid out, &c. and for money had and received. The plea was non-assumpsit.
The plaintiff now assigns as erroneous,
1. That the Circuit Judge refused evidence of the •defendant’s promise, made at the time of the assignment, to pay the note in the event the maker did not; except in reference to the count on the original consideration.
In this, the views of the Circuit Court were correct. The assignment in writing at the time plaintiff received Maples’s note, is the highest and best evidence of the contract of assignment. This can not be varied or controled by any evidence of a parol agreement to the contrary, of the same'date. This principle has been recognised by previous decisions of this
•2. It is also assigned as erroneous, that under the common money count, the Court held no other evidence sufficient than of money actually had and received.
The record purports to disclose all the evidence offered in the case, and shews that no money was ei-t h or lent, paid, laid out or expended, or had and received between those parties. Had there been no evidence of the consideration of the contract, or any shewing that money had passed between the parties, the plaintiff might have been entitled to recover on the money count, unless his right was lost from his neglect to use the necessary diligence in collecting from the maker, and fixing. the liability of the indorser. It is said a bill or note is evidence in support of the counts for money lent, paid, had and received; but that it is only so as between, the original parties to it. Thus, a bill is prima facie evidence of money lent by the payee to the drawer, and a note, of money lent by the payee to the maker-(Clark vs. Martin,
A further assignment of error, is, the charge of the Court, that neither the agreement by the indorser, at the time the indorsement was made, nor the insol ven- ' cy of the maker of the note, would excuse the plaintiff from due diligence in regard to demand and notice.
It has already been remarked, that the parol promise, made at the time of the indorsement, can not vary or control the legal effect of the latter. The law in this respect is holden to be, that neither the bankruptcy, or known insolvency of the drawee of a bill, or maker of a note, will excuse the necessity of demand of payment, and notice thereof
The last error assigned, is, the instructions to the jury, that if the plaintiff could have'received any portion of the money, and failed to do so, on the offer by the maker to pay him, he, the plaintiff, must bear the loss.
The offer of payment, was by the maker, the primary debtor : if the money due on the note, or any portion of it, was tendered to the indorsee while he was the holder of the note ; if he refused to receive it, and by means thereof so much has been lost of the debt, he is chargeable with the neglect; and according to my conceptions of the law and justice of the case, he must sustain the loss. The pendency of the Suit was no objection to his receiving the money,
Judgment affirmed.
3 Stewart,271
1 Ld. Raym. 753-1 Burr. 373.
Bayl. 164, 280 1 Saund. P. & Ev.272.
1 Saund. Pl. & Ev. 293, and authorities cited therein.
Chitty, jr. o
ib.49.