Lilly v. . Petteway .

RodmaN, J. It is assumed as settled law: ■ 1. That if the holder of a bill of exchange fails to present it to the acceptor for payment at maturity, and if it be dishonored, fails to give due notice thereof to the endorser, he is discharged. This general rule of course has exceptions, which are not material in the present case. 2. If the endorser, with knowledge of the material facts which discharge him, promises to pay the bill, he is bound to do so. It is admitted in the present case, that the bill was not duly presented for payment, and consequently that no notice *362 of presentment and dishonor was given to the endorser (the defendant). The plaintiff contends that there is evidence that defendant did promise to pay after he had knowledge of the facts material to his discharge, and that he is therefore bound. The only evidence of such promise and of such knowledge is found in the following letter from the defendant to the plaintiff: “Wilmington. January 27, 1871. Mr. R J. Lilly: My Dear Sie — In answer to yours of the 24th, received this morning, I have seen R. Moore, of Petteway & Moore, who says in a week or two the note you write me about will be attended to — if not, please write me — do not bring suit — if they do not attend to it, I will make all satisfactory to you. 1 thought they had paid it to you long since. Yours very truly, JOI-IN DAWSON.” His Honor instructed the jury, in substance: (1.) That there was evidence contained in the letter of a promise to pay the plaintiff. In this we concur with his Honor. The words, “ I will-make all satisfactory to you,” admits of no other construction. It is not, as contended by defendant, a mere proposition to pay in case plaintiff will forbear suit, and requiring acceptance in order to make it binding on defendant. Nor was any new consideration necessary to the validity of the promise. The promise to pay did not create a new obligation, which would require a new cmjoideration, but merely waived a defence which the defendant had, and the antecedent liability was sufficient to suport this. (2.) “ That it was apparent, that when the defendant wrote the letter on the 27th of January, 1871, he knew whether he had received notice or not, that being a fact within his owu *363 knowledge.” This expression must be taken to mean that defendant knew that he had not received notice. His Honor is supported in it by Several cases, which we do not cite because they are cited in 1 Parsons on Bills and Notes, 603. But it is not necessarily true, inasmuch as notice may be given without personal service and consequently without personal knowledge. A man may be absent from home ; the mail miscarry, &c. The question whether a defendant knows that notice has not been duly given to him is not, it seems to us, one to be assumed by the Court as necessarily to be inferred from his promise to pay the debt, but it is one proper to be left to the jury upon all the circumstances which may be in evidence in the case. We think his Honor erred in undertaking to decide this fact. In the view we take of the other question in the case, however, it is not material. (3.) “ While there was no evidence of a demand upon the acceptors at maturity, still if the jury could reasonably gather from this letter, that Dawson made the promise therein contained after a knowledge of the fact that due demand had not been made, then the plaintiff was entitled to a verdict. But if the jury could not reasonably so infer from this letter, then the plaintiff was not entitled to recover, and their verdict should be for the defendant. The burden of proof is upon the plaintiff,” &c. His Honor thus held that the letter contained evidence tending to prove, and from.which it. might be reasonably inferred that the defendant had knowledge that the bill had not been presented for payment. We do not concur with his Honor in this. In what • line is such, evidence found. Of course it is not to be inferred from his promise to pay, because if so, a promise would be binding in every case. It is said the defendant saw Moore, one of the firm of acceptors, and it may be that Moore told him that the bill had been presented. But there is no evidence that Moore himself knew that the bill had not been presented. It might have been presented to his *364 partner, which though equivalent in effect for most purposes, would not be so to prove actual knowledge by Moore. But the most that can be said is, that it is possible that Moore had the knowledge and communicated it to the defendant. If I were permitted to inquire into ¡the probabilities of the matter individually, I should think it most probable that Moore did not communicate a knowledge of the want of presentation to the defendant. If on his applying to Moore to pay the bill, Moore had said to him, “ The bill was never duly presented to us for payment; it is no concern of yours; you are discharged,” it seems to me that probably the defendant would not have written the letter promising payment. Others might think the probability to be the other way. But take it either way, the probability, it must be confessed, is of the most uncertain kind, giving no sure foothold, and not rising above a conjecture. Then the maxim comes in, that the burden of proof is on the party who affirms the fact; that is, on the plaintiff here, as he affirms the fact of knowledge. We are of opinion that there was no evidence that the defendant, when he wrote the letter, had knowledge that the bill had not been presented. I have omitted to refer to any authorities because they are all cited in 1 Parsons on Notes and Bills, 601 and notes. There is error in the judgment below, which is reversed. Pee Curiam. Venire de now.