Clark v. Eldridge

Massachusetts Supreme Judicial Court

Clark v. Eldridge

54 Mass. 96

CourtMassachusetts Supreme Judicial Court

DecidedSeptember 15, 1847

StatusPublished

This text of 54 Mass. 96 (Clark v. Eldridge) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clark v. Eldridge, 54 Mass. 96 (Mass. 1847).

Pincite

Opinion

Shaw, C. J.

This case, we think, is distinguishable in principle from Gilbert v. Dennis and Pinkham v. Macy, although it runs very near them. Here it was not necessary to prove presentment and demand. The note was indorsed to, and deposited in, the bank by the plaintiff, and remained there, unpaid, through the last day of grabe. The tank had full authority to receive payment and surrender the note, whether discounted or received for collection ; and that point seems wholly immaterial. Then the only question is, whether the defendant, as indorser, had due notice. It was given seasonably, by a party competent to give it, and sent [99]*99to the right place ; and the question is upon the form of the notice.

The note was payable at a place certain, a bank named, and being left there for payment, it was dishonored, if not paid during the bank hours. The fact that it was so payable was known to the defendant, as payee and indorser, and he himself indorsed it to the plaintiif. Now, whether the plaintiff held it in his own right, or discounted it with the bank, it was still payable at the bank; and the ordinary presumption would be, that it was there, whether the bank or the plaintiff was the holder. When, therefore, the notice informs the defendant that the note “fell due this day, and remains unpaid,” being equivalent to saying that it fell due at the bank, and remains unpaid, it carries an implication, to one having such knowledge, that the letter was written after bank hours, and therefore did, by reasonable implication, inform the indorser that it was dishonored.

As to the other point, taken in the argument, that the question of identity of the note sued and the note referred to in the notice was partly a question of fact, on which the defendant was desirous of going to the jury, it does not appear, by the bill of exceptions, that any such ground was taken at the trial, or any such, question of identity raised. It is too late to take it now.

Exceptions overruled

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Shaw, C. J.

This case, we think, is distinguishable in principle from Gilbert v. Dennis and Pinkham v. Macy, although it runs very near them. Here it was not necessary to prove presentment and demand. The note was indorsed to, and deposited in, the bank by the plaintiff, and remained there, unpaid, through the last day of grabe. The tank had full authority to receive payment and surrender the note, whether discounted or received for collection ; and that point seems wholly immaterial. Then the only question is, whether the defendant, as indorser, had due notice. It was given seasonably, by a party competent to give it, and sent [99]*99to the right place ; and the question is upon the form of the notice.

The note was payable at a place certain, a bank named, and being left there for payment, it was dishonored, if not paid during the bank hours. The fact that it was so payable was known to the defendant, as payee and indorser, and he himself indorsed it to the plaintiif. Now, whether the plaintiff held it in his own right, or discounted it with the bank, it was still payable at the bank; and the ordinary presumption would be, that it was there, whether the bank or the plaintiff was the holder. When, therefore, the notice informs the defendant that the note “fell due this day, and remains unpaid,” being equivalent to saying that it fell due at the bank, and remains unpaid, it carries an implication, to one having such knowledge, that the letter was written after bank hours, and therefore did, by reasonable implication, inform the indorser that it was dishonored.

As to the other point, taken in the argument, that the question of identity of the note sued and the note referred to in the notice was partly a question of fact, on which the defendant was desirous of going to the jury, it does not appear, by the bill of exceptions, that any such ground was taken at the trial, or any such, question of identity raised. It is too late to take it now.

Exceptions overruled

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Bluebook (online)

54 Mass. 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-eldridge-mass-1847.