Whittier v. Graffam

Mellen C. J. delivered the opinion of the Court as follows. It has been in Massachusetts the immemorial usage for indorsees of notes not negotiable to declare against the indorsers as on a negotiable note. Jones v. Fales 4 Mass. 245. The same principle will apply in this State. The first and second count's are on the supposed liability of the defendant as indorser. The third count charges the defendant as guarantor of the note ; and the fourth count is for monies had and received, laid out and expended. We are of opinion that the action cannot be maintained upon the first or second cannot. As Wallace lived in Portland at the time the note became due, having there a home, wife and family, the note should have been presented to him there for payment; or a demand of payment made or left at his dwelling house. The absence of Wallace at sea, cannot be considered as an excuse for the plaintiff’s omission in the present instance ; nor can his poverty. [ Diligent inquiry and search would have been sufficient, had Wallace absconded before the note became due ; leaving no agent, or family or home where a demand could be made j; but, it seems his home was known to be at Portland ; because the letter which was sent by mail, and which is relied on as a legal demand of payment, was directed to Wallace at that place. Notice of non-acceptance or non-payment, may be given to a drawer or indorser through the post-office ; but a demand of payment cannot be made in this manner, unless by consent of the person on whom the demand is to be made. Such consent may be express, or be implied from a settled usage well known to him. Numerous cases might be cited to these points. Several have been mentioned by the defendant’s counsel; but we only stale the cases of Freeman v. Boynton 7 Mass. 483, and Lincoln & Kennebec Bank v. Page 9 Mass. 155, and Lincoln & Kennebec Bank v. Hammond 9 Mass. 159. These cases shew the general rule, and the exceptions from it. As to the third count, there is not a fact in the case tending to shew that the defendant ever guarantied the payment of the note [85] at all events ; or made any other stipulation except what was created by indorsing his name in blank ; and there being nothing done by him beyond this, the law determines the nature of the liability which this indorsement imposed ; and in the case of Josselyn v. Ames 3 Mass. 274, it was decided that a man cannot himself warrant to a third person the payment of a note made payable to himself, and not negotiable. But it is contended that the action may be maintained on the fourth count, though the defendant may not in any manner be bound by his indorsement, on the ground that the note, so indorsed, wras of no value and that the plaintiff has derived no advantage therefrom, and has yet been compelled to pay to Foster the amount of the note, against which he engaged to indemnify the defendant, and several authorities have been cited in support of this position. We do not consider them as applicable to the case before us. In the cases cited, the person receiving the bill or note inpayment, did uotjtake the security of the indorsement of the person from whom he received it ; but trusted to the responsibility of the person who drew the bill or made the note, which proved of no value ; but in the present case the plaintiff took the security of the defendant’s indorsement ; and as he has lost the benefit of the defendant’s conditional liability by his own negligence, he must not now convert this liability into an absolute one, by charging the defendant on the. fourth count. Judgment for the defendant.