1 Cow. 397 | N.Y. Sup. Ct. | 1823
It does not appear that the defendants had any knowledge of the negotiation, between the maker of the note and the plaintiff; nor the terms on which the money was loaned. Their liability depends on the question— lias the plaintiff, within a reasonable time, demanded pay
This case resolves itself into two points :
1. Whether the indorser of a promissory note, payable on demand, with interest, is discharged from his liability, where a demand of payment was hot made of the maker and notice of non-payment given to the indorser, until five months after the date of the note.
2. Admitting, that, ás a general rule, such delay would discharge the indorser—are the peculiar circumstances of this case such, as to exempt it from the operation of that rule ?'
It is a general rule, that a noté payable on demand, must be presented for payment; and if not paid, notice thereof given to the indorser, within a reasonable time, or he will be discharged. (Chitty on Bills, Story's ed. 197. Furman v. Haskin, 2 Caines' Rep. 369. Sanford v. Mickles & Furman, 4 John. Rep. 224. Field v. Nickerson, 13 Mass. Rep. 131.)
What is a reasonable time, when the facts are ascertained, is a question of law. (Tindall v. Brown, 1 Term Rep. 167, 2 Caines’ Rep. 369.)
In Hendricks v. Judah, (1 John. 319,) the action was brought by the endorsee against the maker of a note, payable on demand. The suit was commenced within a year after the date of the note, but there was no evidence to show at what time it was indorsed to the plaintiff. The Court say, they will intend that it was endorsed soon after its date, and therefore before it was due, and on that ground, they refused to permit the defendant to set off a demand against the payee. This case, therefore, decides nothing in relation to the point before us.
In Furman v. Haskin, (2 Caine’s Rep. 369,) the note was endorsed 18 months after its date, which was held to be after it became due, and to subject it to all the equities between the original parties. In Losee v. Dunkin, the note
2.’ Are there,- then, any circumstances in this case, to take it Out of the operation of the general rule ? If knowledge had b'een brought home to the endorsers, of the agreement between the maker and the endorsee, that the note was to run until the sale of the mortgaged premises, when Kumbel was to have another thousand dollars, and give a new note,- at a year, for both sums, and their assent to it had been proved,- then undoubtedly they would have been precluded from availing themselves of this defence. But there is not a particle of evidence in the case, of such knowledge and assent on the part of the endorsers-. In Field v. Nickerson, it appeared that the defendant, when called upon to endorse the note, was informed by the makers that the note was not to be called for immediately. The Court held that this did not enlarge the time within which the demand ought to be made, or justify any negligence on the part of the plaintiff.
The offer of the defendants to give (heir own note for the one in question, having been rejected by the plaintiff, was no Waiver of the want of due notice ; nor was it binding upon the defendants. The cases of Crain v. Colwell, (8 John. 384,) and Agan v. M'Manus, (11 John. 180,) were precisely like the present upon this point, and the Court there say, that the offer being rejected, is no waiver, nor does it amount to a promise' to pay.
There was nothing in the specification of the particulars of the judgment confessed by Kumbel to the defendants, to authorize the conclusion that this note constituted a part, of the consideration. The items are all for
I am accordingly of opinion, that a new trial ought to he granted.
Savage, Ch. J. concurred.
New trial granted.
END OP AUGUST TEE]*.