| Pa. | Jan 4, 1886
delivered the opinion of the court, January 4th, 1886.
It is undoubtedly true, in general, that to hold the indorsers, a promissory note must at the proper time be presented and payment demanded; if the place of payment be specified, at that place, if not, then at the place where the maker resides, or at his usual and ordinary place of business, and notice of non-payment must be promptly given.
The note in suit was not payable at any particular place ; it was made and dated at Pittsburgh, but the maker neither lived nor had any place of business there. There is some evidence to show that his residence and place of business at the time of the making of the note was at Wheeling, in the state of West Virginia, and of this fact De Camp and Varnum would both appear to have been informed, at the time of the transfer of the note by the former to the latter. Mr. Varnum testifies that he then inquired of De Camp as to the residence of the parties, and that De Camp said Oxnard lived in Pittsburgh and Scranage in West Virginia, and his impression was that he said in Wheeling. At the maturity of the note, however, it would appear that Scranage was in Greenbrier county, or in Kanawha county, in that state, looking after some matters connected with a purchase of lands he had made from De Camp, the payee of the note ; but whether or not Wheeling continued to be his residence or place of business is not shown.
Under these circumstances the learned judge seemsto have supposed that because the note was dated at Pittsburgh, the holder was not obliged to send it to Wheeling or elsewhere in West Virginia; that the holder or his notary was bound only to use due diligence at the place where the note was made. It is very well settled that the making and dating of a note at a particular place is not equivalent to making it payable there, nor does it supersede the necessity for presentment and demand at the residence or place of business of the maker in order to charge the indorsers; it may have the .effect of leading the holder, who has no knowledge of the proper place for presentment, to suppose that he might be there found: Duuean v. McCullough, 4 S.. & R. 480, and where no residence or place of business can be found, an inquiry at the place of the date of the note might perhaps be regarded as essential to the
Whether or not due diligence is used in making inquiry for the residence or place of business of the maker or indorser is, in most cases, a mixed question of law and fact; the court must state the law to the jury, according to the circumstances as they appear, but the jury must determine the fact: Stuck
In the case at bar, however, Varnum, the holder, knew that the residence or place of business of Scranage, the maker, was not in Pittsburgh, although the note was made and dated there, he knew, for De Camp told him that Scranage lived in West Virginia, and he says himself that he is under the impression that De Camp told him, that he lived in the city of Wheeling. If Scranage had resided in Pittsburgh when the note was given, and had afterwards removed from the state, a different question would be presented, but as his residence in Wheeling was known to De Camp at the time the note was made, and to Varnum, when by the indorsement of De Camp it was transferred to him, they must, iu each case, be supposed to have taken the risk of a proper presentment at the place where the promisor resided. A person who takes a promissory note by indorsement, if he proposes to hold the indorser, takes it with the knowledge that at its maturity a proper demand must be made upon the maker for payment, and he is under obligations, at the time he receives it, or in due time afterwards, to know, or at least to inquire, where the maker lives ; if he does not, and refrains from all inquiry, he should suffer the consequences of not being able to make a regular demand. In view of the peculiarities of the contract of indorsement and of the rights and responsibilities resulting therefrom, the holder of a promissory note should certainly be held to the exercise of such diligence in this respect as ordinary foresight and prudence would suggest; and in the absence of any effort he should, we think, be held to be affected with knowledge of that which by reasonable diligence he could have readily ascertained. As the maker’s known residence and place of business, at the making of the note, was in the city of Wheeling, where he was the proprietor of the St. James Hotel, and not in the city of Pittsburgh, and as it did not appear that afterwards he had any other, it would seem that Wheeling was the place where inquiry should have been made. For if Scranage was at the time in Greenbrier or Kanawha county, looking after his lands, he may have left behind him some provision for the note; indeed, although absent, for anything that appears, his errand may have been of a merely transient or temporary character, his residence and place of business remaining in Wheeling. That portion of the charge of the learned court, therefore, in which the
Thus far we have considered the case apart from, and altogether independent of, the alleged promise of Oxnard to pay the note when it was presented to him by Mr. Hughes after protest. As to the circumstances under which that promise was made, much depends upon the testimony of Hughes, who says that he exhibited to Oxnard not only the note but the protest of it. If this be so, and Oxnard does not positively deny it, the latter had an opportunity to know with certainty the degree of diligence actually exercised by the holder in the presentment. He would in the formal certificate see that there was no presentment of the note at the place of the maker’s residence, or to the maker in person; that the note was in the hand of a notary at Pittsburgh, and that inquiry was made for the maker at that place only. If, with a knowledge of these facts before him, the defendant, upon his promise to pay the note, obtained forbearance and the indulgence of the plaintiff, he cannot now repudiate his promise — he must pay as he agreed. Such a promise was a clear waiver of the laches of the plaintiff, and neither presentment, demand, protest nor notice need be shown. The general principle seems now to be settled in this country that where no demand has been made or notice given a promise to pay after maturity, with a full knowledge of the laches, is binding: Parsons on Notes, etc., 595-601. Byles, in his Treatise on Bills, 237, lays down the rule thus: A promise to pay will entirely dispense with proof of presentment or notice, and will throw on the defendant the double burden of proving laches, and that he was ignorant of it. (See also 3 Kent’s Com. 113 ; Chitty on Bills, 539; and Parsons on Notes, etc., 595, and cases there cited.)
In our own state the law would seem to be as well settled on this point as elsewhere. “ That a subsequent promise to pay the note by an indorser who has full knowledge of all the facts amounts to a complete waiver of the want of due notice,” says Mr. Justice Strong in Sherer v. Bank of Easton, 9 Casey 134, “ is settled, and settled as a matter of law; so does a part payment. Some of the cases assert that it is evidence from which a jury may infer that demand was duly made and notice given, but many others declare it to be a waiver of notice itself. Levy v. Peters, 9 S. & R. 125, seems to assert that it is both. Tilghman, C. J., said that an acknowledgment of liability (to which he held a partial payment to be equivalent), carries with it internal evidence that the drawer knew that
So, in Loose v. Loose, 12 Casey 538, where the authorities are collected and the whole subject discussed, it was distinctly held that a promise to pay by the indorser, after default of payment by the maker, not only dispenses with proof of presentment and notice, but throws on the defendant the burden of proving the laches of the holder, and that the defendant was ignorant of the facts at the making of the promise. “ Regarding it as a waiver,” saj^s the court in the case cited, “ it, of course, must be essential that the party making it knew the laches which he is alleged to have excused, for waiver is not without intention. There is, however, very great harmony in the decisions, in holding that a promise or acknowledgment itself raises a presumption that the drawer of the bill or the indorser of the note was acquainted with the laches of the holder, which his promise is alleged to have waived. I know of but one case in which the opposite doctrine has been distinctly asserted. That is the case of Trimble v. Thorne, 16 Johns. 152" court="N.Y. Sup. Ct." date_filed="1819-05-15" href="https://app.midpage.ai/document/trimble-v-thorne-5474129?utm_source=webapp" opinion_id="5474129">16 Johns. 152, and it has often been spoken of with disapprobation by other courts: Breed v. Hillhouse, 7 Conn. 523" court="Conn." date_filed="1829-07-15" href="https://app.midpage.ai/document/breed-v-hillhouse-6574327?utm_source=webapp" opinion_id="6574327">7 Conn. 523; Kernan v. McRea, 7 Porter (Ala.) 184; and it was finally overruled in New York in Tebbetts v. Dowd, 23 Wend. 379" court="N.Y. Sup. Ct." date_filed="1840-05-15" href="https://app.midpage.ai/document/tebbetts--pearce-v-dowd-5515474?utm_source=webapp" opinion_id="5515474">23 Wend. 379).” The same principle is recognized in the recent case of Moyer’s Appeal, 6 Norris 129.
The question on this branch of the case was therefore one for the determination of the jury, but we cannot distinguish in the verdict as to the effect of that portion of the charge relating to the presentment and demand at Pittsburgh, and the case must be reversed.
Judgment reversed, and venire facias de novo awarded.