57 N.Y.S. 479 | N.Y. App. Div. | 1899
On a former ¡appeal we held that there was sufficient evidence* that a demand for payment of the note had been made to justify the submission of that question to the jury; but we were of opinion that the evidence was insufficient to authorize a finding that theindorser, Julia S. Thom, when she made payments of interest, had. any knowledge that the note had been dishonored. (Porter v. Thom, 30 App. Div. 363.) The evidence on this appeal bearing on. the first question is the same as that in the record previously before* us, and we see no reason to change our former view-thereon.
The plaintiff was in possession of the note when, as he testifies,, he demanded payment from the maker. The maker did not ask for the production of the note at the time of the demand. “ If, on. demand of payment, the exhibition of the paper is not asked for, and the party to whom denjand is made declines to pay on other-
On this trial the appellant, on his direct examination, testified that, after default had been made in the payment of the note, he said to the respondent: “I was tired of carrying it-; that I was unable—-I had asked Mr. Thom to pay it, and it was all promises, and she better make some arrangement to pay it herself or reduce the amount, or do something with it,” to which “She said he .had some little matter he thought he could make some money out of, and undoubtedly he could soon pay a portion,of it, or something of that kind.” On cross-examination he gave his statement to the respondent, as “ I said I was tired waiting for him; to fulfill his promises, and I think she better make some arrangement to pay it, or pay a portion of it; I was tired of his promises;' that is the way I introduced it; that is all I said to her at the first.” It is not pretended that the answer of the respondent constituted any promise on her part to pay the note. On the contrary, all she said, in answer to the appellant’s request, was that the maker, not she, would probably pay it. The respondent, however, is sought to be held liable on the fact that many of the interest payments on the note were subsequently made by her check. If these payments were made not on her own account but on account of her husband, the maker, they would not constitute an acknowledgment of her liability on the note so as to operate as a waiver of the failure of the plaintiff to give, proper notice of presentment and non-payment.. (Daniel Neg. Inst. § 1168; Whitaker v. Morrison, 1 Fla. 25.) After the conversation that had occurred between the appellant and the respondent, and a letter from the former to the latter asking her to call the attention of her husband to the fact that the semi-annual interest was in default, we are inclined to the opinion that the evidence shows that the payments made by the respondent were on her husband’s account and not on her own. But, however this may be, and if we assume the evidence on this subject presented a question for the jury, we think the present record shows the same failure in the plaintiff’s case' as appeared on
The judgment appealed from should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.
