Wynn v. Alden

4 Denio 163

• Court: New York Supreme Court
• Decided: January 15, 1847
• Status: Published

Opinion

By the Court, Beardsley, J.

The only point made by the plaintiff in error is, that the notice of non-payment given to him, as endorser of the note, was defective in not showing the demand of payment to have been made at the proper time. This question arises on the face of the notice; for if there were extraneous facts, which might have aided any intrinsic defect in the notice, as written, they were not proved on the trial. The point is therefore a mere question of law. (Ransom v. Mack, 2 Hill, 587.)

Payment of a note should be demanded at its maturity; when it becomes due and is payable; and the notice should so state. The contract of the endorser is conditional, and only binds him to pay the note where such demand has been made and payment refused, and due notice thereof given. (Story on Prom. Notes, §§ 135, 198.) The fact of such presentment and dishonor of the note, may appear in express terms, or by necessary or reasonable implication from what the notice contains ; and it must appear in one form or the other, or the notice will be defective. (Id., § 348 to 352; Chit. on Bills, 10th Amer. ed. 466 to 470; Solarte v. Palmer, 7 Bing. 530; 1 Bing. N. C. 194; Strange v. Price, 10 A. & E. 125; Shelton v. Braithwaite, 7 M. & W. 252; Furze v. Sharwood, 2 Adol. & Ellis, N. S. 388; Ransom v. Mack, supra.)

This notice only states that the note was presented “ this day" and payment refused. But the notice being without date, it is impossible to ascertain from the paper itself, what day in particular was intended. It may have been some day before the note fell due, or a day subsequent to that time; and, from what is written, we may quite as well infer one or the other, as to infer that the true day of payment was intended. It .s not unlikely, looking to what is usually done in such cases, that the person who drew this notice intended to state that payment of the note had been demanded at the time of its maturity ; but this is mere conjecture, for what was written does not apprize us of any such intention. The notice was insufficient, and the judgment was erroneous.

Judgment reversed.