Eastman v. Potter

Baylies, J., delivered the opinion of the Court. — In the case of Aldis & Gadcomb vs. Johnson, (1 Vt. Rep.136,) it was decided, that the endorsee of anote not negotiable must follow the rules of the law-merchant in making demand of payment and giving notice of non-payment in a reasonable time. Then let us apply these rules to the note in question, which was payable in grain in January, 1830, at the defendant’s dwelling house. The note was executed by Peleg Eddy to Abraham Potter, and by Potter endorsed to the plaintiff. The plaintiff appeared at the time and place the note was payable, ready to receive the grain, but had not the note with him to show his authority to receive the grain, nor to deliver up, in case payment had been made. The question is, was this neglect of the plaintiff, to have the note present, at the time and place of payment, a discharge of the defendant, who is sued as endorser by the endorsee ? In the case of the U. S. Bank vs. Smith, (11 Wheat. 171,) the court say, “ The plaintiffs, to entitle them to recover, were bound to show that they were the en-dorsees and holders of the note ; that the note ivas at the bank, where it ivas made payable, at the time it fell due ; that the maker had no funds there to pay the note ; and that due notice of the default of the maker was given to the defendant.” From this decision, I infer that the neglect of the plaintiff to have his note present at the time and place of payment, was a discharge of the defendant from his liability. In support of this opinion there are the following additional authorities.—Ambrose vs. Hapwood, 2 Taunt. 61 ; Callaghan vs. Aylett, 3 Taunt, 397 ; Bowes et al. vs. Howe, in error. 5 Taunt. 30 ; Bank vs. Jones, 6 Mass. 524 ; Freeman et al. vs. Boynton, 7 Mass. 483 ; Woodbridge et al. vs. Brigham et al. 13 Mass. 557. The judgement of the county court is affirmed with additional costs.