Maynard Trust Co. v. Furbush

Pierce, J. This is an action by the holder and payee of a promissory note dated November 7, 1915, payable two months after date to the order of the plaintiff, against the maker and three persons who had placed their signatures thereon in blank before delivery. St. 1898, c. 533, § 64, now G. L. c. 107, § 87. The maker and the indorsers other than the defendant were defaulted. [192] Although not active in its management, the defendant was the treasurer of the maker of the note, a Massachusetts corporation, at the time of the making of the note and for some time after its maturity. As such treasurer.he signed the name of the corporation as the maker of the note. He was also at the time of the making of the note and until January, 1918, a director of the Maynard Trust Company, the plaintiff. The note in suit was the last of a chain of notes, of which the first is dated November 11, 1914, for two months for $1,000. This was renewed every two months, in some instances within a day or two before and in others after the date of maturity, until a note dated September 9, 1915, was given for $975 for two months, and when due was renewed by giving the note in suit which is dated November 7, 1915, and was discounted by the bank on November 10, 1915. The note in suit was payable “ at Any Bank or Trust Company in Boston or Maynard.” It was presented at maturity according to its terms, and was unpaid; but no notice of non-payment was sent to the defendant Furbush. The defendant, on at least two occasions after the maturity and non-payment of the note in suit, and at the request of the maker of the note, made and indorsed in like manner other notes with the note in suit and for the purpose of tendering the same to the plaintiff in renewal of the note in suit. "Whether or not said notes were so presented did not appear” at the hearing in this action. On the foregoing facts, which are reported as being all the facts material to the decision, the plaintiff contends that the defendant as indorser was not entitled to a notice of the dishonor of the note as required by St. 1898, c. 533, § 89, now G. L. c. 107, § 112, because the case of the defendant comes within, the exception of the statute, that notice of dishonor is not required to be given to an indorser, "Where the indorser is the person to whom the instrument is presented for payment.” St. 1898, c. 533, § 115, cl. 2, now G. L. c. 107, § 138, cl. 2. Upon the facts reported this position of the plaintiff is not tenable; there is no direct evidence that the note was presented to the defendant for payment in his individual or representative capacity; and an inference of a "formal demand for the payment of obligations of the company” cannot arise from the mere fact that the defendant was treasurer of the corporation and “not active in its management.” [193] The plaintiff further contends that the dealings between the parties to the note constituted an implied waiver of the requirements of notice of dishonor. St. 1898, c. 533, § 109, now G. L. c. 107, § 132. We cannot agree with the plaintiff that the giving of the renewal notes, as maturing notes became payable from time to time from November 11, 1914, until November 7, 1915, with the further fact that the defendant was the treasurer of one corporation and a director in the other, are circumstances which required a finding that the plaintiff believed and had the right to believe that the defendant waived notice of the dishonor of the note in suit, and there is no evidence that the defendant promised to pay the plaintiff the note after he was discharged, by the failure to give him notice of its dishonor. We think the finding of the court for the defendant was right. It follows, in accordance with the terms of the report, that judgment is to be entered for the defendant; and it is So ordered.