Ferner & Kraushar v. Williams

Clerks, P. J. This is an action by the payees of two promissory notes, against an indorser. The makers expressly 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, hut 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 avenu'e, 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 indorser. 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 the default. Being in the character of a surety, his obligation is strictissima 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 latter 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 [11] to the indorser, it constitutes a condition precedent, on which his liability depends. ( Woodworth v. The Bank of America, 19 John. 419. Wolcott v. Van Santvoord, 17 id. 248.) The presentment, then, of the note in this case for payment at Detroit, being a condition precedent to entitle the plaintiffs to recover against the defendant, the facts which constitute the performance 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, &c. 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 to all conditions precedent. Hone 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 v. Paine, (5 How. Pr. Rep. 107,) and Adams v. Sherrill, (14 id. 297.) The order of the special term should be reversed, without costs, and the demurrer be overruled, with liberty to the defendant to answer in ten days after entry and notice of the order to be entered on this decision. Leonard, J. concurred.