100 N.W. 1093 | N.D. | 1904
This action is brought against the defendant as indorser of a promissory note of which he was the payee. The plaintiff, in his complaint, alleges that one Steffes made and delivered such promissory note to the defendant, and that the defendant duly indorsed and transferred it to the plaintiff for value, and that the note was duly presented for payment when due, and payment refused. The defense attempted to be proven at the trial was that the note was not presented for payment in the manner provided by law. At the close of the taking of the testimony the district court directed a verdict for the plaintiff for the sum of $339.84, the amount claimed to be due in the complaint, and denied defendant’s motion to direct a verdict. The defendant thereafter made a motion for judgment notwithstanding the verdict, on grounds stated, or for a new trial on account of errors occurring at the trial and the insufficiency of the evidence to sustain the verdict. The motion for judgment notwithstanding the verdict was granted by the court, and the appeal is from the judgment entered on such verdict. A statement of the case was settled, specifying the errors relied on.
It is first claimed that there is no evidence that the note was presented to the person primarily liable on the note — that is, the maker. The certificate does not state the name of the person to whom it was presented, and the notary does not give the name of the person in his testimony. A presentment at the bank where a note is payable is a sufficient presentment to the maker, although the name of the person to whom presented is not given. It is held to have been made to some person connected with the bank. This is expressly held in Ashe v. Beasley, 6 N. D. 191, 69 N. W. 188. If the notary’s evidence is receivable, it brings the evidence in this record within the rule stated in Ashe v. Beasley, supra, and is sufficient to' show presentment at the store where the note was made payable, and- to a. person connected with such store. See Douglass v. Bank of Commerce (Tenn.) 36 S. W. 874; 1 Daniel, Neg. Inst.(5th Ed.) section 635. In such cases no personal demand1 on the maker is necessary. He is primarily liable on his promise to pay. Section 70, Neg. Inst. Law 1899 (Civ. Code, p. 1048.) A presentment is necessary in order to fix the liability of the indorser, which is a conditional obligation to pay the note if not paid at maturity by the maker. If a maker stipulates to pay at maturity at a specified place, and the note is there presented for payment at its maturity, and payment refused or not made, the liability of the indorser is fixed after notice to him, although there was no personal demand made on the maker. Pearson v. Bank of the Metropolis, 1 Pet. 89, 7 L. Ed. 65; State Bank v. Hurd, 12 Mass. 172; Whitwell v. Johnson, 17 Mass. 449, 9 Am. Dec. 165; Meyer v. Hibsher, 47 N. Y. 265. A presentment at the store was therefore sufficient to bind the indorser after notice to him of the fact. It remains to be determined whether the evidence of the notary was admissible to supply facts that occurred in reference to the presentment that were omitted from the recitals of this certificate. It is well settled that the facts stated in the certificate of protest of promissory notes may be supplemented by other facts that transpired, and that such other facts may be shown by the oral testimony of the notary or by other testimony. Ashe v. Beasley, supra; Seneca County Bank v. Neass, 5 Denio, 334; Daniel, Neg.
The defendant included in his motion for judgment notwithstanding the verdict an alternative motion for a new trial, and gave notice' of intention to move for a new trial, and therein specified the grounds thereof. Having prevailed in the court below on his motion for judgment notwithstanding the verdict, the motion for a new trial was not perfected. Leave to do so after filing the remittitur in the clerk of the district court’s office is granted. Kreatz v. St. Cloud School District (Minn.) 81 N. W. 533. If such motion is not made, judgment is directed to be entered on the directed verdict for the plaintiff.
The judgment is reversed, and the cause remanded for further proceedings.