Greely v. Hunt

[456] The opinion of the Court was drawn up by Whitman C. J. — The defendant indorsed to the plaintiffs a note of hand, in payment for goods purchased of them, against one Smith, who was, at the time, and ever since has been, utterly insolvent; and this action is brought to recover the amount of it. There was no evidence, nor was it even pretended, that there was any deception, or other unfair means used to induce the plaintiffs to take it. It does not appear that the plaintiffs, at the time made any inquiry as to the responsibility of Smith; nor whether they were acquainted with him or not. They, therefore, to entitle them to recover against the defendant, must depend upon the principles ordinarily connected with a contract of this kind. This case can scarcely be considered as coming within the rules applicable to the responsibility of indorsers of notes of hand, and bills of exchange. The note had been long over due, when it was negotiated. A demand, therefore, upon the maker, when -the note was at maturity, was out of the question. If the plaintiffs have any ground of claim, it must arise from considering the indorsement of the defendant, as in the nature of an original draft upon the maker for the amount due; and it has been held, that every indorsement of a bill or note is tantamount to a new draft. Jones & al. v. Swan & al. 17 Wend. 94. In such case the holder must give evidence of reasonable diligence to obtain payment of such new draft, and of notice in due season of non-payment to the drawer. In this case, there being no pretence of any such demand, nor indeed of any demand upon the maker or drawee, or of notice to the drawer, although such demand might have been unavailing, by reason of the utter insolvency of the drawee ; yet, the authorities all concur in showing, that such insolvency of the drawee and maker of the note, forms no excuse for such a neglect. Farnum v. Fowle, 12 Mass. R. 89, and cases there cited. From the evidence in the case the note appears to have been taken in payment for a precedent debt pro tanto ; and the evidence reported furnishes no reason to conclude that it was [457] the intention of the parties, as contended on the part of the plaintiffs, to waive demand and notice. Nonsuit confirmed and judgment accordingly.