1 Doug. 296 | Mich. | 1844
delivered the opinion of the Court.
The liability of the defendant, as endorser, is a conditional liability, and it is for the plaintiff to show the performance of the conditions upon which it depends. The holder of a note undertakes to present it, at the proper time
The essential requisites of a notice of dishonor are, a description of the note ; that it has been presented at the proper time and place for payment; that payment could not be obtained ; and that the holder looks to the party to whom notice is sent for indemnity and satisfaction. No particular form of words is necessary, in which to convey this information to the party, but the words must be such as in direct terms, or by necessary implication, convey these several distinct ideas. Story on Bills, §§ 301, 390.
It is urged that the notice given to the defendant does not show that the note had been presented for payment and payment refused. The words of the notice are that it “ had been protested for non-payment.” The word protest is applied to the formal instrument made by a notary public, alledging the due presentment and dishonor of a bill, and declaring that said notary does protest the same for non-payment or non-acceptance, as the case may be. This is official evidence of the fact in the case of foreign bills ; but no such protest is necessary in the case of promissory notes, nor is it even evidence of the dishonor of a note. The statement that a note has been protested seems to me to refer, rather to the making by a notary of the instrument denominated a protest — to the perpetuating the evidence in that form — than to the acts which might authorize it to be made. If this be the meaning of the term protest, the notice in this case contained only a declaration that the notary had made his official protest, or solemn written declaration of the dishonor of the note. Such protest was unnecessary, and was no evidence of the facts
The English authorities seem almost uniformly to-have adhered to the rule that the notice must contain words, either directly, or by necessary construction, showing the demand and refusal of payment. In Hartley v. Case, 4 Barn. & Cressw. 339, the plaintiff wrote the defendant for payment of the bill endorsed by him, and threatening legal proceedings if payment was not made. The court held that the language used must be such as to convey notice to the party of what the bill is, and that payment of it has been refused by the acceptor. In Solarte v. Palmer, 7 Bing. R. 530, decided in the Exchequer Chamber, the notice to the endorser, written by the plaintiff’s attorneys, described the note, and stated that it had been put into their hands “ with directions to take legal measures for the recovery thereof, unless immediately paid.” Lord Tenterden had held, at nisi prim, that the notice was insufficient, and on a review of this decision, it was sustained. It was contended that, by the notice, the holder had sufficiently shown that he considered the endorser liable, and looked to him for payment. Tindal, C. J. delivering the opinion, said that the notice, “should at least inform the party to whom it is addressed, either in express terms, or by necessary implication, that the bill has been dishonf ^ ored, and that the holder looks to him for payment of the ''Xamount.” The same case was carried to the House of ^ Lords, and is reported in 1 Bing. N. C. 194. It was there
It may be considered as a settled rule, that, when there is no dispute about the facts, the sufficiency of a written notice is to be determined by the court; Ransom v. Mack, 2 Hill’s R. 587; and in this case we have only to inquire whether the statement, that the note has been protested for non-payment, is equivalent to an allegation that the note was presented at the proper time and place, and payment not obtained. I think it is not. The information was simply that the holder had caused a notary to make his protest in the ordinary form and manner, as in the case of foreign bills — an act entirely unnecessary, and even nugatory, in the case of this note. The protesting of the note was not that which fixed the defendant’s liability ;—
It is true that the protest of a notary, in the case of a foreign bill, presupposes a proper demand and refusal to pay the bill protested, and is evidence of it; but it is not sufficient to state a fact in the notice which it may be presumed would not exist without a regular demand and refusal. A notice that a certain witness would swear to due presentment and refusal, would imply the dishonor of the note, but clearly would not be a sufficient notice. So, a notice that the proper means had been taken to fix the endorser, would imply every thing necessary for that purpose, but would be insufficient. The facts which are to be proved, in order to fix the liability of the endorser, are to be stated in the notice, and. not other facts from which these may be presumed to exist. The only implication which can be allowed, is an implication from the words used, and not from extraneous facts alledged in the notice. It is of little consequence what words are used, or in what order they are placed, but they must be such as assert the fact that the note was presented at the proper time and place for payment, and payment not obtained. This is not done by the words used in this notice.
We think that the notice is, therefore, insufficient, and judgment must be entered in the Circuit Court for the defendant.
Judgment for the defendant.