Fitchburg Mutual Fire Insurance v. Davis

121 Mass. 121, 1876 Mass. LEXIS 304

• Court: Massachusetts Supreme Judicial Court
• Decided: October 21, 1876
• Status: Published

Opinion

Gray, C. J.

By the non-payment of the previous instalments as they fell due, the whole note was dishonored, and subjected to all the defences which existed against it when the holder took it. Vinton v. King, 4 Allen, 562. But the omission to give the indorser notice of the non-payment of those instalments does not affect his liability for a later instalment, of the non-payment of which he has been duly notified.

Notice that payment has been demanded of and refused by the maker is sufficient to charge the indorser, without any express demand upon him. Lewis v. Gompertz, 6 M. & W. 399 King v. Bickley, 2 Q. B. 419. United States Bank v. Carneal, 2 Pet. 543. The demand made in this case upon the makers tor the payment of the instalment now sued for, and of the interest then due upon the note, (some of the previous instalments and interest being still unpaid,) included nothing for which the makers were not liable. The notice to the indorser of that demand upon the makers, and of their non-payment, was sufficient to charge the indorser, and was not invalidated by adding that the holder looked to him for the payment of this instalment and of the interest due upon the note. The indorser was certainly liable for the instalment in question, and for interest upon so much of the principal as had not yet become due; and whether he was liable for the whole interest is immaterial.

The plaintiff had the right to apply, to the payment of the previous instalments, the proceeds of the mortgage given by the maker to secure the payment of the note. Blackstone Bank v. Hill, 10 Pick. 129, 183. Saunders v. McCarthy, 8 Allen, 42. Draper v. Mann, 117 Mass. 439. Exceptions overruled.