Leonard v. Gary

10 Wend. 504 | N.Y. Sup. Ct. | 1833

By the Court,

Nelson, J.

It is well settled in this court, that a promise of the endorser, although absolute and unconditional to pay the note to the holder, will not of itself dispense with regular demand and notice ; but that the plaintiff must shew affirmatively that the defendant knew he had not been regularly charged; and the reason given is, an endorser may believe due notice given, inasmuch as notice need not be personally served, and under a misapprehension of the fact, consider himself liable. Trimble v. Thorne, 16 Johns. R. 152. Jones v. Savage, 6 Wendell, 658. Within this rule I am of opinion the plaintiff should retain the verdict. When called upon for payment of the note, the defendant avowed himself legally discharged as endorser, but disclaimed availing himself of such advantage, and in the most deliberate and positive manner promised to pay the note. Here was no misapprehension of facts or of law, and the promise was made with a perfect understanding of both. But the counsel for the defendant contends he acted under a mistake; that he was not discharged at the time, as the note was not due, the ten days notice not having been given; and that inasmuch as the promise was made before the note was due, it would not operate as a waiver of demand and notice. Whether the defendant was laboring under a mistake or not, after the avowal made, was for him to establish, and though he proved that a demand was made upon the administrator of the maker on the 7th December, and that that was the only demand made on him, there is still nothing in this incompatible with the fact of a demand having been made upon the maker before his death. The payment of the $175 by the maker on the 30th July, rather favors the inference that such demand was made, and if so the defendant was not mistaken; he was discharged. There is nothing, then, in the evidence contradicting the truth of the defendant’s declaration that he was discharged from the note when the promise to pay was made.

But I do not intend to rely upon this answer to this ground of defence; it is admitted a demand was made upon the administrator on the 7th December, and on the 12th the defendant was called upon. The ten days had not expired, and therefore, says the defendant, the note was not due, and the promise no waiver of notice. But are we not bound to infer that the language of the defendant put the plaintiff off his guard, and thereby prevented him from giving the regular notice 1 He told the agent of the plaintiff when he endorsed paper, he endorsed it to pay; that he would see the plaintiff paid, if it took every cent in his pocket; he asked the plaintiff to give him time; offered to give his own note for the debt, payable in a year, and whether the plaintiff would take it or not, he should be paid; and directed the agent to tell the plaintiff to give himself no uneasiness about it, as he would see him paid, if it came out of his own pocket. After all this, can the defendant be permitted, on the expiration of the time when notice should be given, to insist upon it, more especially when such notice would be wholly useless to him 1 1 Johns. Cas. 99. 7 Wendell, 168.

New trial denied.