Genesee County Savings Bank v. Rosenthal

251 N.W. 334, 265 Mich. 291, 1933 Mich. LEXIS 671

• Court: Michigan Supreme Court
• Decided: December 5, 1933
• Docket: Docket No. 98, Calendar No. 37,339.
• Status: Published

Opinion

Potter, J.

Plaintiff sued defendants on a promissory note dated December 2, 1931, for $24,700, due 90 days after date, with, interest at 7 per cent, per annum. “Bensams,” a Michigan _corp oration, was maker, and defendants Bernard Rosenthal, Louis Rosenthal, Samuel Weinstein and Maurice Rosenblum were indorsers; and $4,465.14 had been paid on the note prior to suit. The declaration alleges presentment of the note for payment at maturity and tender of a new note executed by the same maker and indorsed by the same indorsers to the payee for the balance due. This note was rejected and suit instituted. From a judgment for plaintiff, defendants Louis Rosenthal and Maurice Rosenblum appeal.

Ordinarily, to hold an indorser, notice of. presentment, demand and dishonor must be given, but such notice may be waived either before or after the time of giving such notice and such waiver may be either express or implied. 2 Oomp. Laws 1929. § 9358. The indorsement of another or new note in renewal of, and for the purpose of taking up an existing instrument, constitutes a waiver of notice of dishonor, and one who has so executed such new or renewal note as an indorser, cannot successfully set up the lack of notice as a defense to an action on his contract of indorsement. 3 R. C. L. p. 1241, § 468, and cases cited; 8 C. J. pps. 704, 705, and cases cited; Jenkins v. White, 147 Pa. 303 (23 Atl. 556); Bessenger v. Wenzel, 161 Mich. 61 (27 L. R. A. [N. S.] 516); Gelder v. Welsh, 169 Mich. 490.

Judgment affirmed, with costs.

McDonald, C. J., and Weadock, Sharpe, North, Fead, Wiest and Butzel, JJ., concurred.