Donaldson v. Means

By the Court. — The law upon the subject is so clear, that the whole case resolves itself into the question of fact, on which the law is to arise. If the proof is satisfaetoiy, that the defendant, under a knowledge of all the circumstances, absolutely promised to pay, he is, incontestably, bound by his promise.1 But if his engagement was of a conditional nature, that he would pay, when the protest was transmitted : or if any material fact was unknown to him, at the time of making the pi’omise, the verdict should certainly be in his favor.2 Verdict for the plaintiff. Footnotes [1] Duryee v. Dennison, 6 Johns. 248 ; Trimble v. Thorne, 16 Id. 152; Meyer v. Hibsher, 47 N. Y. 265. A subsequent promise to pay, by an indorsee, dispenses with proof of presentment and notice, and casts on the defendant the burden of proving that it was made, without knowledge -that he was discharged by the plaintiff’s laches. Loose v. Loose, 36 Penn. St. 538. If made with full knowledge, it is a waiver of notice. Miller v. Hackley, 5 Johns. 875 ; De Wolf v. Murray, 2 Sandf. 166, Or, presumptive proof of demand and notice. Tebbetts v. Dowd, 23 Wend. 379. But the promise to pay must be explicit; it must refer to the particular bill; and be made out by clear and unequivocal evidence. Miller v. Hackley, ut supra. And whether it was made with full knowledge that he was discharged by want of presentment, is a question of fact upon the evidence. Moyer’s Appeal, 87 Penn. St. 129. And a promise to pay, with full knowledge of the omission to make presentment, may be inferred from circumstances. Jameson v. Wolverton, 22 Leg. Int. 293. [2] Martin v. Winslow, 2 Mason 241; Thornton v. Stoddert, 1 Cr. C. C. 534; Good v. Sprigg, 2 Id. 172; Gassaway v. Jones, Id. 384; Cram v. Colwell, 8 Johns. 384; Griffin v. Goff, 12 Id. 423; Sice v. Cunningham, 1 Cow. 397; Gawtrey v. Doane, 51 N. Y. 84; s. c. 48 Barb. 148.