Parker v. Tuttle

May, J. The note in suit was payable on demand, and not indorsed to the plaintiff until more than four months from its date had elapsed. When it was made it was taken by the plaintiff, as the agent of the payee, who then resided in the city of Boston or its vicinity. The defendant was a resident of Smithfield, in this state. One of the principal questions which arose at the trial was, whether the note was dishonored at the time of its indorsement, so as to let in all the equitable and legal defences existing between the original parties. The presiding judge instructed the jury, that the note would not be dishonored necessarily by reason of such lapse of time before it was indorsed. In view of the authorities cited by the defendant’s counsel, and under the circumstances of this case, we are of opinion that the plaintiff, if he did not already know by reason of his connection with the note, and its inception, ought to have been admonished by the length of time which had then elapsed, that some legal or equitable cause existed why it had not been paid. Much shorter periods of time have been held to work the dishonor of similar notes, while no case has been found where so long a period has not been held to produce such effect. Nor do we think the fact that no ground of defence or intimation of any, was stated to the plaintiff’s agent when he took the note, or that a simultaneous promise to pay a part of the note to the payee or his agent as soon as the means could be obtained, the defendant then having no reason to suspect that such agent would become the purchaser or indorsee of the note, takes the case out of the ordinary rule, or in any manner estops the defendant from setting up any existing defence. The instruction which has been considered being erroneous, it becomes unnecessary to examine into the propriety of the other instructions given, or to consider the correctness of those which were requested and withheld. Exceptions sustained, verdict set aside, and new trial granted.