Cromer v. Platt

37 Mich. 132, 1877 Mich. LEXIS 220

• Court: Michigan Supreme Court
• Decided: June 20, 1877
• Status: Published

Opinions

Campbell, J.

This was a suit against an endorser, and his liability, upon the facts found, depended on the sufficiency of the notice of dishonor, inasmuch as the letters relied on as recognitions of liability are equivocal and not enough to indicate any promise to pay.

The notice was full in every other respect except as to the fact of demand and refusal. As to these it simply declared that the note was unpaid, . and the holders looked to the endorser for payment.

This left the facts of presentment and refusal to inference. The question is whether a notice of this kind is valid.

There are cases both numerous and respectable which have held such a notice insufficient. No particular form of notice can be laid down as requisite, and the discussion has always been concerning the sufficiency in each case to inform the endorser of what was claimed as fixing his liability.

We think that altogether too much force has been given to technical phrases in such notices. A notice, whatever be its form, cannot bind unless the paper has been legally dishonored, and every endorser must be presumed to know what action will bind him and what will not. Notice need not be given by a notary. Any holder may give it for himself and in his own language. Negotiable paper is used by all classes of men and for all manner of purposes, and in a large class, if not in the majority of cases, credit is given to the endorser and he knows it. He is entitled to have his liability established by the necessary measures. But there is no reason why courts should strain matters, as they often have done, to discharge persons from liability when they have not been misled in any way by the notices sent them. As a matter of fact every endorser who receives a notice of non-payment, and that he is looked to for payment, knows that such a notice would not have been sent unless it was supposed the proper steps had been taken to charge him. He learns this as well from one form of notice as from another, and when courts have theorized upon the forms of notice, and assumed that endorsers scan with the nicety of advocates every phrase and turn of expression, they assume what is not true in fact, and impose upon negotiable paper what seem to be unreasonable restrictions. The value of such a medium of business convenience is injured by every needless technicality, and honest holders of such paper, who have not read the law reports, are practically defrauded.

We think the notice in the present case was sufficient. The early case of Platt v. Drake, 1 Doug. (Mich.), 301, was overruled in Burkam v. Trowbridge, 9 Mich., 209, where we remarked upon the danger of over technical refinements in these matters. The more liberal doctrine seems to us the correct one. And while no doubt many cases, and possibly a majority of those reported hold otherwise, we do not think the popular usage has been changed by them, or that justice would be furthered by such a change.

The judgment must be affirmed, with costs.

Cooley, C. J. and Marston, J., concurred.