Kendall v. Badger

14 F. Cas. 302, 1 McAll. 523

• Court: U.S. Circuit Court for the District of California
• Decided: January 15, 1859
• Status: Published

Opinion

McALLISTER, Circuit Judge.

A demurrer was filed in this case, and the ground assigned is, that there is no allegation in the complaint that the note sued on was presented for payment at the place at which it is made payable on its face. The action is brought by the payees against the maker, who is primarily, not second¿rily, liable. In such an action, between such parties, a demand for payment need not be averred. If the maker was ready at the time and place, and offered to pay, it is a matter of defense to be pleaded and proved. Wallace v. McConnell, 13 Pet. [38 U. S.] 136, Brabston v. Gibson, 9 How. [50 U. S.] 279. The demurrer is therefore overruled.

An answer has been filed which pleads in bar of this action the discharge of the dei'end-.ant on 3d June, 1S57, under the insolvent law of this state, approved May 4, 1852. To this answer a demurrer has been filed. The note sued on is in the following words: “Boston, Jan’y 1, 1856. $l,194sVioo- Eight months after date, I promise to pay to the order of Kendall, McDonald & Stetson, eleven hundred and ninety-four BVioo dollars, at the office of Andrew Carney, 40 State street. Boston, for value received. Wm. G. Badger.’It is in proof that all the payees of said note, at the time of the execution thereof, were citizens of Massachusetts, except one, and he at the time was a citizen of the state of New York; and, further, that defendant, the maker of said note, was at the same time a citizen of the state of California, and has continued such to the present time. The facts on the face of the note, its date, and the place where it is payable, stamp it as a Massachusetts contract. In view of these circumstances, the discharge of defendant, under the insolvent act of this state, cannot bar the present action. In the case of Byrd v. Badger [Case No. 2,265], decided by this -court in its January term, 1858, this precise question was decided with the authorities given for its enunciation. It is useless to repeat them. The demurrer to the answer must be sustained.