24 Cal. 329 | Cal. | 1864
This is an action upon a promissory note against the defendant Fenstermaker, as maker, and the defendant Howk, as indorser. The note is dated on the 3d day of January, 1862, and specifies no day or time of payment. It was indorsed in blank by Howk, on the 24th or 25th of April, 1862, and delivered by him to one Bartholomew, who, on the same day, transferred it by delivery to the plaintiff. Some time during the first week in May, 1862, the plaintiff demanded payment of Fenstermaker, who failed “ to make payment,” and, some túne in the forepart of August, 1862, gave Howk notice of the demand and non-payment. At the time this notice was given, Howk told the plaintiff “ that he did not want him to sue, and if he felt like doing so he would rather pay it, as he did not want to pay costs.” Upon this state of facts the Court below rendered a judgment of nonsuit' as to defendant Howk, from which the plaintiff appeals to this Court.
Two questions are presented :
First—As to the sufficiency of the demand and notice; and, Second—As to the waiver of demand and notice.
Ro day or time of payment being specified in the note, if is to be considered as payable on demand, and so far as the liabil
It is well settled in England and in the United States that a promise to pay by an indorser, made after maturity, and where no demand has been made, or notice given, and made with full knowledge of the holder’s laches, is binding upon him, and entirely ernes any negligence on the part of the holder in making demand or in giving notice of dishonor. (1 Parsons on Notes and Bills, 595.) But the promise to pay must be established by clear and distinct evidence. The testimony in this case falls far short, in our judgment, of establishing such a promise on the part of Howk. All he said, in substance, was that he had rather pay the note than be sued. This was the expression of a wholesome dread of a lawsuit, rather than a promise to pay the note, notwithstanding the laches of the plaintiff.
The judgment is affirmed.