Ferner v. Williams

By the Court.—Clerke, J. This is an action by the payees of two promissory notes against an indorser. The makers ex [218] pressly promise in the instrument to pay to the plaintiffs or order at their office, 94 Woodward Avenue, Detroit. The complaint avers that at maturity the notes were duly presented for payment to the makers, but were not, nor was either of them paid, nor any part thereof, of which the defendant had due notice. The defendant demurs on the ground that this averment does not show a presentment in conformity with the requirement in the note, — a demand at the makers’ office, 94 Woodward Avenue, Detroit. Although it is well settled, at least in this State, that in an action against the maker on a promissory note, payable at a particular place, it is not necessary to aver a demand at that place, it is equally well settled that such an averment is necessary in an action against the indorsers. The demand at the place indicated in "the note is a condition precedent to the right of recovery against an indorser. He contracts only to be answerable in default of the maker, after demand has been made in strict compliance with the terms of the contract, and due notice of default. Being in the character of a surety, his-obligation is strictissimi juris. Ohitty in his Treatise on Bills says: “ In an action against the indorser of a promissory note, it is proper to aver a presentment at the particular place; but against the maker it is not necessary.” In other words, the provision to pay at a particular place relates only to the mode in which the contract shall be executed as far as the maker is concerned, but with regard to the indorser it constitutes a condition precedent on which his liability depends. (Woodworth a. Bank of America, 19 Johns., 391, 419; Wolcott a. Van Santvoord, 17 Ib., 248.) The presentment, then, of the note in this case for payment at Detroit being a condition precedent to entitle the plaintiff to recover against the defendant, the facts which constitute the performance of it should, under the old system, be specially set forth. The 162d section of the Code, however, I think, renders this unnecessary; it provides that the performance may be stated generally that the party duly performed the conditions, &e. The averment in this complaint is, that the notes were duly presented for payment to the makers thereof. The language of the Code is general, so that it may be fairly applied [219] to all conditions precedent; none are excepted; nor is there any sufficient reason why the Legislature should have retained the old rule in relation to negotiable paper rather than any other species of contracts. The necessity of the change applies with equal force to all. * I entirely agree with the opinions delivered at special term in Gay a. Paine (5 How. Pr., 107), and Adams a. Sherrill (14 Ib., 297). The order of the special term should be reversed without costs, and the demurrer overruled, with liberty to the defendant to answer in ten days after entry, and notice of the order to be entered on this decision. Sutherland, J., concurred.