Wittkowski v. . Smith

Smith, G. J. No place of payment is mentioned in the bill and no agreement as to such place shown by parol, as it was competent to show if any such agreement existed, under the ruling of Chief Justice Marshall, in Brent’s Executor’s v. Bank of Metropolis, 1 Peters, 92, and we have no other guide than that furnished in the writing itself. It was drawn and accepted on the same day, and so far as appears, at the same place. The inference to be drawn from *673 an inspection of the instrument is that funds were there to be provided to meet the debt in tbe absence of evidence of any 'contrary understanding. Had it been intended that it should be paid elsewhere, it must be assumed it would be so expressed upon its face, or be the subject of agreement between the parties. The place of date,5’ remarks a recent ■author, speaking of promissory notes, made negotiable like bills of exchange and governed by the same rules when not controlled by statute,is prima fade evidence that it is the place of the maker’s residence and place of business, and it is sufficient, we should say, to charge an endorsee to have the note in that place at the time of maturity, and'to make-proper inquiry after the place of the maker’s residence or place of business, provided that the holder does not know: that his residence is elsewhere,’11 1 Dan. Neg. Ins.., § 640.. Or, it may be added, when he dees not know where it is.. ■“ When the bill or note is made on terms payable in a city, without specification of a particular place, and the acceptor or maker has no residence or place of business there,, it will certainly be sufficient to charge the drawer or endorser, if the holder have the bill or note in the city at maturity, ready to be presented and delivered up,, if the maker or acceptor should appear.” Ibid. In Meyer v. Hibscher, 47 N. Y., 270, Folgek, J., thus speaks of a note dated at a place and payable generally:. “In such case the note must be presented and payment asked for at the place of business therein of the maker, if he has-one; and if he has no place of business, then at his place-of residence. And if he neither have place of business, nor residence, then if the holder of the note is at the place where it is in general' made payable, on the day of payment with the note, ready to receive payment, it is sufficient to constitute a presentment and demand.” As it was the undertaking of Billings, whose obligation; was absolute, to provide and have in Charlotte the necessary *674 funds to take up his acceptance when it matured, in which he wholly failed, and the bill then went to protest, of which notice was given to the defendants who drew the bill, their liability became fixed and it was their dutj’- to look out for protection against the impending insolvency of the principal debtor. No point is made as to the sufficiency of the notice of the ■non-payment, and in our opinion His Honor erred in holding the demand, upon which the protest was made, insufficient, and in setting aside the verdict and directing a non-suit. The judgment below must be reversed and judgment rendered upon the verdict for the plaintiff, and it is so ordered. .Error. Reversed.