14 Wis. 380 | Wis. | 1861
By &6 Oourt,
The note on which this action was instituted was payable on a day certain. As to sucb it is well settled that they must be presented for payment on tbe very day they fall due, and that a delay of even.one day after the instrument has come to maturity, discharges the parties not primarily liable (Cbitty on Bills, 402); unless tbe delay or omission to present be excused by some accident or other circumstance, not attributable to tbe fault of tbe bolder, which renders it impossible or unsafe for him to do so (Idem, 385, 391, and 485 ; Tunno vs. Lague, 5 Johns. Cases, 1); or unless presentment and notice have been waived in some of tbe ways recognized by law. Edw. on Bills, 632 et seq. In respect to such paper, tbe time within which a demand shall be made and notice given has, by repeated adjudications, been very accurately defined. It is confined within very narrow limits — so narrow, indeed, as hardly to be open to the question of reasonable diligence. Hence the question here presented differs widely from that involved in cases of bills payable after sight, or notes on demand, when the action is brought to charge the drawer or indorser, and the case of Aymar vs. Beers, 7 Cowen, 705, cited by counsel for the plaintiff in error, seems quite inapplicable. In such cases the parties, having fixed no time for the presentment of the bill or for the demand of payment of the note, have left it to be governed by the circumstances of the case; and what constitutes reasonable diligence, or such as shall charge the drawer or indorser, which implies that the holder has some latitude of discretion, is a question which cannot be settled by any rule alike applicable to all cases, but must, from its
Applying these principles to the present case, it will be very readily perceived that the facts disclosed by the record constitute no valid excuse for the omission of the plaintiff’s testator to present the note and give notice of its non-payment on the day it became due ; nor for the subsequent neglect of the plaintiff to do so in case the testator had been lawfully excused. The note matured on the 3d day of August, 1856. The complaint alleges that either on that day or between that day and the 9th day of the same month, the defendant indorsed and delivered it to the testator, who became the legal owner and holder, and that immediately after the transfer he was suddenly taken with severe illness, of which he died on the last named day, after having made a will, &c. The defendant answers that the transfer was made on the 23d day of July, and the plaintiff’s witness McDonald, who was the maker of the note, clearly disproves the allegations of the complaint. He testifies that before the note was due, the deceased came to him and told him that he should want things from his store and that -he would not press him, and that after the transfer and before maturity, he sold the deceased goods which were applied upon it. The precise time when Mr. Wilson was taken sick is not fixed by the testimony. Thus by comparing the allegations of the complaint with the proofs, it does not appear that he was not in perfect health on the day the note became due, and that he might not have presented it for payment, and given notice to the defendant in case it had been refused. But conceding that it is shown that he was sick, still it is not shown that he was so sick as to be incapable, at that time, of at
Again, if nothing was lost by tbe testator’s omission, still it seems clear tbat tbe subsequent neglect of tbe plaintiff bas discharged tbe defendant. For if it be admitted tbat she might have presented tbe note and given notice of nonpayment even after probate of tbe will and tbe issuing of letters testamentary to her, it is not shown tbat she used due diligence, or any diligence at all in tbat respect. Tbe rule laid down by Mr. Chitty is, tbat notice must be given as soon as possible after the impediment ‘is removed. Tbe witness McDonald testified tbat she asked him for tbe money on tbe note sometime between August, 1856, and February, 1857, tbe exact time be does not remember; and it is not pretended tbat she ever gave or attempted to give tbe defendant any notice whatever until after bis return from England, about April, 1857. So far as tbe circumstance of sickness is concerned, however it may have been, this is a complete answer to it, and shows that no advantage can now be taken of it as an apology for tbe want of presentment and notice.
Tbe excuses tbat tbe defendant was on bis way to Europe at tbe time tbe note became due, so tbat notice could not be served on him, and tbat McDonald,. tbe maker, was then insolvent, are clearly no better. Tbe temporary absence or removal of tbe indorser from bis place of residence or business is no reason why tbe note should not be presented; nor does it relieve tbe bolder from tbe responsibility of endeavoring to notify him of tbe maker’s default. After presentment and default tbe giving of notice is a question of diligence on tbe part of tbe bolder, and if he exercises proper care and prudence for tbat purpose, tbe indorser will not be exonerated, even though be does not: receive actual notice. In case of tbe temporary removal of tbe indorser, notice put into tbe keyhole of tbe outer door of bis . dwelling bouse, which was found fastened up, bas been held sufficient. Stewart vs. Eden, 2 Caines’ R, 121. A deposit of notice in tbe post office addressed to tbe indorser, bas, under like cir
As to insolvency, it has long been settled that it does not discharge tbe bolder from giving notice, though tbe maker be insolvent at tbe time of indorsement and that be known to tbe indorser. Jackson vs. Richards, 2 Caines, 343; Nicholson vs. Gouthit, 2 H. Black., 609 ; Barton vs. Baker, 1 Serg. & Rawle, 334; Bank vs. Griswold, 7 Wend., 165 ; Lawrence vs. Langley, 14 N. H., 70 ; Boultbee vs. Stubbs, 18 Vesey, 20; Esdaile vs. Sowerby, 11 East, 114.
Tbe only remaining question is, whether tbe defendant’s having taken security for tbe payment of this, among other debts, by mortgage upon all of McDonald’s property, real and personal, dispensed with a demand and notice. Tbe authorities are uniform that tbe mere precaution by an indor-ser of taking security from bis principal, does not so operate. Nothing short of a general assignment and actual transfer to
For these reasons we are of opinion that the decision of the court below was correct, and that the judgment must be affirmed.
Ordered accordingly.