7 Port. 175 | Ala. | 1838
— 1. The release of Fuller, the endor-ccr of the defendant in error, did not operate a discharge of any previous party to the note. Every endorsement of a paper is a new and substantive contract, and the liability of each endorser, as it respects the holder, is separate and distinct from the others. Hence, a prior endorser, who has paid a note, cannot call upon a suf sequent party for contribution, but can only look to those whose names are previous to his own. Fuller, then, being in r,o event liable to the plaintiff in error, it must be immaterial to the plaintiff, whether the defendant re'ease him or not. The cases of a release from a joint and several liability, or of a prior endorser, rest upon entirely different grounds, and consequently, do net conflict with the position we have laid down.
2. It is certainly the duty of the judge, to determine all questions of law which may arise in the progress of a trial, and if, instead of determining himself, a point raised, he refers it to the jury, it is error, — if the party complaining-, could be injured by such reference. Here, it is'true, the judge of the county court submitted it to the jury to decide whether there was a material alteration in two of the endorsements on the note, when ho should have determined the question of materiality himself, and'only have submitted it to them to ascertain whether the alteration was made. In regard to the first alteration alleged, to wit, the insertion of these words, “ to William Kennon,” in an endorsement originally as foi-
3. The charge of the judge, upon the fourth and fifth ii stsuct.ons, asked for by the plaintiff in error, it is believed, dees not harmonise with the law. The charge is as follows: That' as the parties all lived in the neighborhood, and lenew the situation of the maker of the note, and the assignment was made sometime after the note was clue, that a promise to pay before or after the suit was brought, would bind the party, if the jury should believe from the evidence, the promise was made.” This direction, we think calculated to embarrass, and probably to mislead the jury, by assuming the contiguity of the residence of the parties to the paper to each other, and their acquaintance with the situation.of the maker of the note, and laying a stress on these facts, as exerting an influence over their rights. Cut we need not consider it in that light; .for it is dearly objectionable in combining both law and fai t, and thus forestalling the inquiries of the jury upon the evidence, instead of referring it to them (o ascertain the facts proved.
It is true, that the consequences of a neglect to make a demand of the maker or drawer of a note or bill, and give notice to an endorser or drawer, may be waived by the. person authorised to take advantage of it, by a promise to pay, or an acknowledgment of a liability to pay—Vaughan vs Fuller, 2 Strange, 1246; Horford vs Wilson, 1 Taunt. 12; Lundie vs Robertson, 7 East, 231; Brett vs
In Jones & Mann vs Savage, 6 Wend. R. 658, it. was determined, “ That a subsequent promise to pay is a waiver of the want of notice, in cases only where the promiso was made with a full knowledge of the fact, that due notice had not been given, and that knowledge is not to he inferred from the promise itself, but it must affirmatively appear, that the party knew be had not received regular notice; otherwise, the presumption'is, that the promise was made under a belief that regular notice was given, inasmuch as such notice need not be personal”-See also Trimble vs Thorn, 16 Johns. R. 154. This decision, not only holds it to be 'necessary for a plaintiff to prove the promise, but requires him to go farther, and shew that it was made under such circumstances as make it effectual in law. To that extent, wo think the case cannot be sustained. The rule, we understand to be this; If a promise or acknowledgment be
The fact, that the note was over-due when negotiated, did not dispense with a demand and notice. It is the duty of an endorsee to demand payment of the maker,
If the plaintiff show a sufficient promise or acknowledgment, he cannot be deprived of its benefit, because it may appear to have been made after suit brought; for the reason, that it is supposed the plaintiff had a good cause of action, of which the promise or acknowledgment furnishes but evidence; or if there was no cause of action, when it was commenced, the defendant, for proper reasons, has admitted it, by waiving his defence—Hopley vs Dufresne, 15 East R. 275.
Whether the facts that excuse demand and notice, can be proved under a declaration, in the usual form, against an endorser, has been sometimes questioned. But the practice of declaring, in such cases, with an occasional decision approving it, and maintaining the waiver to be equivalent to a demand and notice, in our opinion, affords sufficient authority to warrant the admission of these facts in evidence under such a declaration, without putting the plaintiff to declare specially upon the promise — '
It was not -objected in the County court, that a promise or acknowledgment made to Fuller, would not inure to the defendant in error ; yet, as it is possible the question may be made upon another trial, it may be proper to remark, that if a promise or acknowledgment is made to the holder of endorsed paper, — any party to it, who afterwards takes it up, may avail himself of such promise or acknowledgment, and maintain an action against the party making it—Potter vs Rayworth, 13 East, 417; Brahan & Atwood vs Ragland, et al, 3 Stew. R. 247. And this,upon the ground that by the payment of anote by an endorser, he is remitted to all the rights of the holder against the previous parties. So, the holder, it would seem, stands in the same situation as an endorser, and is entitled to the remedies upon the endorsements which he would have, were he to take up the paper.
Instead of stating the law to be, that a promise to pay would bind the plaintiff in error, the judge of the County court should have instructed the jury, that they must be satisfied, from the evidence, that he either promised to pay, or acknowledged that he was liable to pay the note endorsed by7 him, with a knowledge of the facts, as they really existed. The jury were authorised to determine from the circumstances under which the conversation took place between Fuller and the plaintiff, and the language employed, not only whether there was a promise, but whether it was made under a misapprehension of fact. But their inquiries were restricted to the promise alone, and a consideration of the