243 Mass. 190 | Mass. | 1922
This is an action by the holder and payee of a promissory note dated November 7, 1915, payable two months after date to the order of the plaintiff, against the maker and three persons who had placed their signatures thereon in blank before delivery. St. 1898, c. 533, § 64, now G. L. c. 107, § 87. The maker and the indorsers other than the defendant were defaulted.
The note in suit was payable “ at Any Bank or Trust Company in Boston or Maynard.” It was presented at maturity according to its terms, and was unpaid; but no notice of non-payment was sent to the defendant Furbush. The defendant, on at least two occasions after the maturity and non-payment of the note in suit, and at the request of the maker of the note, made and indorsed in like manner other notes with the note in suit and for the purpose of tendering the same to the plaintiff in renewal of the note in suit. "Whether or not said notes were so presented did not appear” at the hearing in this action.
On the foregoing facts, which are reported as being all the facts material to the decision, the plaintiff contends that the defendant as indorser was not entitled to a notice of the dishonor of the note as required by St. 1898, c. 533, § 89, now G. L. c. 107, § 112, because the case of the defendant comes within, the exception of the statute, that notice of dishonor is not required to be given to an indorser, "Where the indorser is the person to whom the instrument is presented for payment.” St. 1898, c. 533, § 115, cl. 2, now G. L. c. 107, § 138, cl. 2. Upon the facts reported this position of the plaintiff is not tenable; there is no direct evidence that the note was presented to the defendant for payment in his individual or representative capacity; and an inference of a "formal demand for the payment of obligations of the company” cannot arise from the mere fact that the defendant was treasurer of the corporation and “not active in its management.”
It follows, in accordance with the terms of the report, that judgment is to be entered for the defendant; and it is
So ordered.