Turnbull v. Maddux

Stone, J., delivered the opinion of the Court. We do not perceive any material error in the law enunciated by the lower Court in this case. The suit was brought by the holder of a promissory note against an endorser. The note was not protested at maturity, b'ut the plaintiff based his right of recovery upon the fact that the defendant promised to pay the note after its maturity, and with full knowledge of the fact that the note had not been presented for payment at maturity, and that no notice had been given him of its non-payment. Notice of the non-payment of a note at its maturity is the privilege of the endorser, but it is a right which he may waive, and he is considered to have waived his privilege, if with the knowledge of that fact he promises to pay the note. Beck vs. Thompson, 4 Harr. & J., 531; Lewis vs. Brehme, 33 Md., 412. It is equally clear that in determining the fact of such knowledge,-and especially in a case like the present, where the evidence on the point was conflicting, the jury [588] had the right to consider the relationship of the drawer to the endorser, and the other facts set out in the plaintiff’s prayer. 1 Parsons on Bills and Notes, 602; Martin vs. Winslow, 2 Mason, 243 ; Blodgett vs. Durgin, 32 Vermont, 367. The doubtful question in this case seems to us to be rather a question of fact than of law. The defendant was an indorser on a promissory note overdue for more than three years, and, which had not been protested, and notice of the non-payment given to the endorser, and the question for the jury to determine was under the instructions of the Court, whether the defendant, with the knowledge of the fact of the want of protest and notice promised, within three years before the suit brought, to pay the same. The Court below in granting the plaintiff’s prayer, and the third, fourth and fifth prayers of the defendant, gave the defendant the benefit of all the law that he was entitled to. The Court told the jury in these instructions that the plaintiff could not recover unless the jury found that the defendant knew the note had not been protested, and after he had such knowledge and within three years before suit brought, he promised' to pay the same. These instructions certainly stated the law as favorably to the defendant as he had the right to ask, and covered the whole case. The evidence on the part of the plaintiff, given by himself, was in part this : “I went to Mr. Turnbull (the defendant endorser) to get the interest on the note, and told him the interest on the note had not been paid. Mr. Turnbull gave me $100. He asked me what I wanted. I told him I wanted $100. He then asked me if that was enough. I told him yes, that was all I wanted then ; I told him I wanted the note. He said he had a house to sell. I told him I wanted the money for the note, and he said he wanted time so as he could sell his house, and he would let me have the money then.” [589] The defendant did subsequently sell the house in which he was then living, and the title to which seemed to have been in his wife, and for more than enough to pay the note. We have referred to so much of the testimony to show that even if the promise was a conditional one, as the defendant supposes, but which we do not mean to decide, the condition happened and the promise became absolute. This disposes, we think, of the third bill of exceptions. The second exception is wholly untenable, without reference to the Evidence Act, which would, in any event, make the testimony of the witness Buck admissible. The object of the cross examination of the defendant, Turnbull, was to elicit his knowledge of the financial condition of the drawer of the note, and his ability to pay it when it matured. This is one of the circumstances which we have already said the jury could take into consideration upon the question of knowledge of the endorser of the nonpayment of the note, and is therefore not irrelevant. In the course of his cross-examination, the witness denied that he had been told by Buck that the drawer was cutting into his capital. It was then clearly competent for the plaintiff to contradict and discredit the witness by the testimony of Buck, who proved that he did so tell the witness, and we find no error in this exception. The first exception is as follows: The plaintiff proved that the maker of the note given in evidence had paid the interest on it semi-annually up to January, 1884. The defendant objected to that evidence as inadmissible for the purpose of preventing the bar of the Statute, or for the purpose of fixing any liability upon the defendant, and this objection the Court sustained, with the following modification : “Further than as ténding to show the identity of the note for which the interest was demanded of the defendant, with the note which the defendant had endorsed [590] several years before,” and this modification the defendant excepted to. (Decided 15th March, 1888.) The wording of this modification is rather singular, and 'its meaning somewhat obscure. We take it to mean, that the jury might find that the note upon which the payments of interest were made was the same note that the defendant had éndorsed, and that the payment of interest had a tendency to show that fact. What possible benefit this modification, as it is termed, could be to the plaintiff, or what possible injury to the defendant, we are unable to see. The exception states that the note had been given in evidence, and if sof as a matter of course, the endorsement was either proved or admitted, and the plaintiff then proceeded to offer evidence that the interest on that note up to a certain time had been paid by the drawer. That it was the same note upon which the'defendant was sued as endorser was a patent fact shown by the note itself, and we cannot see how the payment of interest on it shed any light on the identity of the note. But as we are of opinion that no injury was done to the defendant, we will not reverse upon this. Judgment affirmed.