Talbot v. National Bank of the Commonwealth

129 Mass. 67, 1880 Mass. LEXIS 183

Opinion

Soule, J.

When the note matured, the maker occupied a house in Kalamazoo. He had no place of business, and the note did not specify any place of payment. It was payable, therefore, at his house. It was not presented there for payment, nor to the maker elsewhere. The presentment at the place in Kalamazoo which had formerly been occupied as a place of business by the maker, without any inquiry as to his place of residence, was not a good presentment, and did not show such diligent search for the maker, and failure to find him, as would excuse a want of presentment of the note and demand of payment. Garland v. Salem Bank, 9 Mass. 408. Granite Bank v. Ayers, 16 Pick. 392. Porter v. Judson, 1 Gray, 175. The note, therefore, was not dishonored, and the plaintiffs were discharged from all liability as indorsers. They paid it under the supposition that it had been dishonored, and that their liability had been fixed. They had received notice that it had been dishonored, signed by the notary, and forwarded to them by the defendant bank. They had the right to rely on this notice, thus forwarded, as- true, and the payment made by them in consequence was a payment made under a mistake of fact on their part, and they are entitled to recover the amount paid in this action. Garland v. Salem Bank, ubi supra.

Interest on the amount paid by the plaintiffs is recoverable only as damages for the wrongful detention of the money by the defendant. Nothing in the facts agreed shows that the plaintiffs made any demand for the money before bringing suit. Under these circumstances, interest should be computed from the date of the writ only. Ordway v. Colcord, 14 Allen, 59.

Judgment for the plaintiffs accordingly„