Ethridge v. Bond

E. Darwin Smith, J. The judgment in this case, I think, should he affirmed, on the ground, particularly, that the defendant was not entitled to notice of the non-payment of the note of the 12th of September, 1871. This note was really taken and received at the instance and request, and for the benefit and accommodation, of the defendant. He had become fixed upon his indorsement of the note of Merriam of the date of July 18,1871, and recognized and admitted his liability to pay such note, and negotiated with plaintiffs for an extension of time to pay it, and they, at his request and for his particular accommodation, took a new note at sixty days, on his agreement to see to it and see it paid. The note is, in form, the note of Merriam, and indorsed by the defendant, but Merriam had gone into bankruptcy and had no means for the payment of such note, and was not expected to pay it. He had given the defendant some security by way of a chattel mortgage, upon which the latter relied to re-imburse him in part for the payment of such note. The defendant was no more entitled to notice of non-payment of such note than he would have been if it had been his individual promissory note. The form of the transaction did not change his rights. He was the real debtor who had agreed in advance and was relied on to pay the note at maturity. In such case the reason for the notice of non-payment entirely fails, and such notice is not necessary to charge the indorsee. It is dispensed with, not waived. Story on Bills, § 357; Pars. on Bills, § 557; Mechanics’ Bank of Albany v. Griswold, 7 Wend. 168; Commercial Bank of N. Y. v. Hughes, 17 id. 98; Sheldon v. Horton, 43 N. Y. 97. The judgment should be affirmed. Judgment affirmed.