Williams v. Smith

48 Me. 135

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1858
• Status: Published

Opinion

The opinion of the Court was drawn up by

Goode vow, J.

This is an action against the defendant as an indorser of three several promissory notes, signed by D. C. Emery, Treasurer of the York and Cumberland Railroad Company and payable to David Hayes or order, and indorsed by said Hayes, and by the defendant, and also by seven other persons, on six months from date, with interest; one note for §500, and one for §1000, both dated June 7, 1851, and one other for §500, dated June 14, 1851. The notes were protested for non-payment by a notary public; copies of which and of the original protests make a part of the case.

The defendant contends that the notices served on him by the notary were insufficient.

By R. S., c. 44, § 12, the protest of any foreign or inland bill of exchange or promissory note or order, duly certified by any notary public, under his hand and official seal, shall be legal evidence of the facts stated in such protest, as to the same, and also as to the notice given to the drawer or indorser, in any court of law. The protests describe the notes in suit with sufficient accuracy. The original notices offered in evidence by the defendant, but rejected by the Court, if admitted, would not conflict with facts stated in the protest. They may exhibit a want of clerical accuracy, in omitting an “ a,” with an apostrophe, after the name of the signer of the note. It may be, that the notary was in doubt, whether it was Daniel C. Emery’s note or the company’s note. We think the defendant could not fail to understand that the notice was to him alone as indorser, and was the same in effect as if the printed blank had been filled without any alteration, to wit, “ a promissory note, signed by Daniel C. Emery, Treasurer of the Y. & C. Railroad Company, for one thousand dollars,” &c. Bradley v. Davis, 26 Maine, 50; Cummings v. Herrick, 43 Maine, 203.

■ The indorsement of the defendant was intended to give value and currency to the note in the market. There is nothing ambiguous on the face of the paper, or outside of it, which parol evidence can be admitted to explain. If it was a joint promise by the defendant and others, the fact could be only pleaded in abatement. But we do not so regard it.

In order to discharge an indorser, there must be a valid agreement for delay, founded upon a sufficient consideration.

An agreement to pay more than the legal rate of interest for delay, does not discharge the indorser. Whitney v. South Paris Manufacturing Company, 39 Maine, 316.

In Freeman’s Bank v. Rollins, 13 Maine, 202, Weston, C. J., says, “ The bank may have been willing, as a matter of favor and indulgence, to afford additional accommodation, presuming that it was desirable and acceptable to all parties, who had signed the note ,• but they could not have intended to preclude a surety from the exercise of the right he had by the terms of the note, to pay it after it became due.” In Oxford Bank v. Lewis, 8 Pick., 458, it was held that the bank, notwithstanding the receipt of interest in advance, retained the power of suing and might, if they apprehended a failure, have made an attachment; and that therefore the surety remained liable. See also 10 Pick., 129. The same principle was again recognized and acted upon by the Court in this State, in Mariners’ Bank v. Abbott, 28 Maine, 280. Mr. Justice Wells says, in delivering the opinion of the Court, “ But there must be a contract or agreement between the cred-tor and principal.” The case of Crosby v. Wyatt, 10 N. H., 318, which holds that the reception of interest in advance is prima facie evidence of a binding contract, to delay the time of payment, was not overlooked, but it was said in relation to it, that “ It is unnecessary to inquire which rule is the most reasonable, for -the law has been so long settled, on this subject, in our State, that it would be. unwise to change it.”

The evidence in this case falls far short of proving an agreement on the part of the plaintiff to wait.

Daniel C. Emery, a witness called by the defendant, on cross-examination, says, that the “ plaintiff always told him he would not wait for payment of the notes, and the plaintiff never agreed with witness to wait one moment, — constantly refused to wait — and never agreed to extend the time of payment. By direction of the directors I tried to make same arrangement with him, as with others, about waiting.”

According to the agreement of the .parties, as reported by the presiding Justice, we are of opinion that a default must be entered. Defendant defaulted.

*

Tenney, C. J., Hathaway, May and Davis, JJ., concurred.

A similar decision was made at the same term, in the case of Ezra T. Williams v. David Hayes, which was assumpsit against the defendant, as indorser of the same notes. The case was tried before Appleton, J., and a verdict rendered for the plaintiff. The defendant excepted to rulings and instructions in accordance with, the decision in the other case. The exceptions were overruled.

Howard % Strout, for plaintiff.

F. O. J. Smith, for defendant.