Michaud v. Lagarde

4 Minn. 43

• Court: Supreme Court of Minnesota
• Decided: July 15, 1860
• Status: Published

Opinion

Atwater, J.

By the Court The demurrer in this case was properly sustained by tbe Court below. Tbe complaint fails to show a cause of action against Yadnais, tbe Defendant who demurred. The agreement set up, or attempted to be set up in the complaint for the extension of the time of payment of the note, is without consideration, and could not be enforced against either party. But even if the agreement were valid, the Plaintiff still fails in showing a cause of action against Yadnais. He must be held as an endorser, if at all. The agreement set up, simply extends the time for the payment of the note, fifteen days from the time of the transfer. There is no agreement shown, either express or implied, that the endorser should waive demand and notice. The counsel for the Plaintiff in error claims, that a parol agreement between the indorser and holder, that the payment of the note should not be demanded at its maturity, but at a future time, excuses demand and notice between those parties, and cites in support of the same, Story on Bills, 317, and note; Id. 371; 5 Pick. 436-7; 19 Pick. 373, 375; 1 Johns. Cases, 99. But we find nothing in these cases sustaining the proposition, nor do we find any authorities which go to that extent. The fact set up in the complaint that the makers had absconded or run away, does not excuse notice of that fact to the endorser. (Taylor vs. Snyder, 3 Denio 145.) In order to recover against Yadnais as endorser, he must prove that he had notice that the makers had absconded, and not having alleged such notice, he cannot prove it. (Gurvey vs. Fowler, 3 Sand. 665.) The complaint fails to show a sufficient excuse for want of notice to the endorser, and the judgment below is affirmed.