30 A.D. 363 | N.Y. App. Div. | 1898
The plaintiff, by this action, seeks to charge the defendant with-liability, as indorser, upon , a prohiissory- note, which reads as-' follows:
“ Brooklyn, September 22d, 1890.
“ On demand I promise to pay to the Order of David C. Porter,, eight*hundred and fifty dollars with interest at the rate of 5 per cent, per annum for value recived.
“ $850 00-100.
JOHN C. THOM.”
This rule applied to the facts of the present case shows that the . plaintiff was requested by John G. Thom to extend the time for payment; that he acquiesced in such request, and actually forbore for a reasonable time. Upon the strength of this forbearance and the agreement so-to do, the defendant Julia indorsed the note.. This case, therefore, comes squarely within the rule and differs from the facts of the case cited in that there there was no request to forbear, followed by forbearance, in pursuance of the request without promise upon the part of the creditor at the time, These elements are here found present. It does not follow, however, that the plaintiff showed himself entitled to recover upon the note. Upon the contrary, we think he failed in an essential part of his proof entitling him so to do.- The indorsed note was a continuing security, as it was payable on demand, with interest. It, therefore, required an .actual demand of payment, and, in the event of dishonor, notice of such fact, and of non-payment, to the indorser,. (Merritt v. Todd, 23 N. Y. 28; Parker v. Stroud, 98 id. 379.) There is evidence from which the jury were authorized to find that a demand of payment of the note had been made by the plaintiff of the maker. Just when such demand was made, so as to put the maker in default, is not clear. We assume, however, that it was prior to April 11, 1894, when the defendant Julia sent her check for interest. It was not contended upon the' trial that any notice of non-payment or demand for payment was given or made upon the indorser. . It was assumed that neither was, in fact, done. The averment of the complaint is that the note was duly presented for payment, and payment duly demanded, which. was refused, “ of all which the defendant Julia S. Thom thereafter duly waived notice.” The plaintiff relied upon this waiver, and upon this theory the court submitted the case to the jury. It is well-settled law that when an indorser is apprised of the laches of the holder in failing to give the notice required by law, or, with knowledge of the facts, such indorser promises to pay the debt, he will be held liable upon such promise. (Tebbetts v. Dowd, 23 Wend. 379; Brown v. Mechanics & Traders’ Bank, 16 App. Div. 207; Clark v. Tryon, .4 Misc. Rep. 63; Daniel Neg. Inst. §§ 1149, 1150, et seq.)
“ 224 Clinton Street.
•“Dear Dave —I am sorry to have given you the trouble of writing in regard to the interest, but.I Was. under the impression it .was due April 22nd instead of March. I see by my book,, however, ■that I am mistaken and enclose check at once.
“ Yours very truly,
. “ April 11, 1894. ■ JULIA S, THOM.”
The letter of the plaintiff which produced this reply is not in the record, nor are its contents given. It is fair to assume, however, that, the response referred to all that was written upon the subject of the payment required. ' It says that she is sorry to have given the plaintiff trouble “ in regard to the interest.” There is not a suggestion that lie has been given any trouble about the principal or has demanded payment of- anything else than interest or that he had made demand for any other reason than that interest was due upon a continuing security in.no sense dishonored. Clearly the payment was made for interest due at a given date, as plaintiff insisted upon,
There is no evidence in the case other than we have noted upon which can be based the assumption of liability and promise to pay. We think that it was insufficient for the court to submit and the jury find either waiver of notice or -promise to pay. (Newberry v. Trowbridge, 13 Mich. 264; Daniel Meg. Inst. §§ 1165, 1166.) This question was raised upon the motion fora nonsuit and upon the motion to dismiss made at the close of the proof. Both motions should have been grantéd.
The judgment should be reversed and a new .trial granted, costs to abide the event.
All concurred.
Judgment and order reversed and new trial granted, costs to abide the event.