40 Cal. 111 | Cal. | 1870
delivered tbe opinion of the Court:
The Court sustained the objection and excluded the evidence, to which ruling plaintiff’s counsel duly excepted. The evidence being closed, the Court, of its own motion, entered judgment of nonsuit against the plaintiff, on the ground that the evidence disclosed that the checks were dishonored before their transfer to the plaintiff; from which judgment, and subsequent order denying plaintiff’s motion for a new trial, comes this appeal.
. As a general rule, it is well settled that a bona fide holder of a negotiable instrument for a valuable consideration, without any notice of facts which tend to impeach its validity as between the antecedent parties thereto, if he takes it by transfer before the same is overdue or presumptively dishonored, holds the title unaffected by these facts, and may recover thereon, although, as between such antecedent parties, the legal validity of the instrument, or the title thereto, may be successfully impeached. (Swift v. Tyson, 16 Pet. U. S., 15; Story on Prom. Notes, Sec. 191; Goodman v. Simmons, 20 Howard U. S., 364-5.)
A promissory note payable on demand, a bank check or a certificate of deposit, is not presumptively dishonored until the lapse of a reasonable time after payment thereof may be legally demanded; and what shall be deemed a reasonable time is a question of law for the Court, when
“Actual dishonor may take place at any moment after the paper may be presented and demanded. But this dishonor, accurately speaking, does not take place, or at least is not completed merely by refusal to pay, unless the party subsequently taking the paper had some notice or knowledge of this demand and refusal. If the paper be demanded and refused within that period, before the termination of which there is no presumption of dishonor, a taker after such demand and within that period, having no notice or knowledge of the demand or refusal, cannot be affected.” (2 Parsons on Notes and Bills, p. 270.)
As in case of a bill drawn payable at a future day, if it be presented to the drawee for acceptance before maturity, and acceptance refused, without indorsement of such nonacceptance on the bill; if the party'so presenting the same thereafter endorse and deliver it before maturity, and without due notice to the drawer of its non-acceptance to another, for a valuable consideration, who has no notice or knowledge of the previous dishonor, such indorsee takes the
The judgment of nonsuit and order denying a new trial must, therefore, be reversed and cause remanded.