Holmes v. Winters

194 P. 639, 108 Kan. 227, 1921 Kan. LEXIS 20

• Court: Supreme Court of Kansas
• Decided: January 8, 1921
• Docket: No. 22,892
• Status: Published

Opinion

The opinion of the court was delivered by

Porter, J.:

The action was commenced in a justice court on a promissory note. The bill of particulars alleged the execution, indorsement before maturity, waiver of presentment, notice of nonpayment, protest and notice of protest, and that no part of the note had been paid. On appeal to the district court the defendant demurred to the bill of particulars on the ground that it fails to show that any diligence was used to collect from the maker of the note. The demurrer was sustained and plaintiif appeals.

The negotiable-instruments law provides that a negotiable instrument is dishonored by nonpayment when it is overdue and presentment is excused (Gen. Stat. 1915, §6610), and that “when the instrument is dishonored by nonpayment an immediate right of recourse to all parties secondarily liable thereon accrues to the holder.” (Gen. Stat. 1915, § 6611.) Because of the express waiver by the indorser of presentment and notice of nonpayment, his obligation for the payment of the note became unconditional and absolute and the holder was entitled to bring suit immediately after maturity. (3 R. C. L., § 362, p. 1148.)

The judgment is reversed and the cause remanded with directions to overrule the demurrer.