Farrington v. Brown

Upham, J., delivered the opinion of the court. The en-dofser of a note becomes liable for its payment after due demand is made upon the maker of the note, and seasonable notice is given to the endorser of its non-payment. But if [273] these measures are not taken to fix the liability of the endorser, he becomes fully exonerated, as much as if his name had never been upon the note. There are cases where the endorser of a note is liable without demand and notice, as where the money raised upon the note is received by the endorser, and he is the person ultimately liable to pay : where he has been indemnified by security : and, in case of the drawer of a bill, where he has no effects in the hands of the drawee. Agan vs. McManus, 11 Johns. 180; Mead vs. Small, 2 Greenleaf, 207; Freeman vs. Boynton, 7 Mass. 483; Rogers vs. Stephens, 2 D. & E. 713; Legge vs. Thorpe, 12 East, 171; Hoffman vs. Smith, 1 Cain. Rep. 157. And where, before a note falls due, the endorser agrees to pay it, in consideration of forbearance, or time to be given him, this is a sufficient consideration, and renders a demand and notice unnecessary. Bayley on Bills, 192; Norton vs. Lewis, 2 Con. Rep. 478. But these are exceptions to the general rule. In this case, there is nothing to excuse the want of demand and notice, or to show that forbearance and giving day of payment to the principal was the consideration of the new promise set up by the plaintiff’s. The only ground on which the plaintiffs can sustain their action is, that the promise of payment made by the defendant in his letter of the 15th of July, 1828, to the plaintiffs’ attorney, is evidence of a due demand and notice. There are authorities which go to sustain the position that a promise, like the one made in this case, is evidence of a demand and notice. Sidford vs. Chambers, 1 Stark. 326; Hosford vs. Wilson, 1 Taunt. 12; Gibbon vs. Coggon, 2 Camp. 188; Taylor vs. Jones, do. 105; Greenway vs. Hindley, 4 Camp. 52; and Wood vs. Brown, 1 Stark. 217. In Lundie vs. Robertson, 7 East, 231, Lord Ellenborough said it was to be presumed, prima facie, from the promise to pay, that the bill had been presented in time ; that due no [274] tice had been given ; that no objection could be made to payment; that every thing had been rightly done, and that this superseded the necessity of ordinary proof. There are also authorities in 13 East, 417, and 15th East, 275, to the same point. On the other hand, the more modern authorities, and the American decisions generally, sustain a different position. In Hopkins vs. Liswell, 12 Mass. 52, it is said that a promise of the endorser, to be binding, must be made with a knowledge of the circumstances which operate to discharge him. And in Trimble vs. Thorne, 16 Johns. 152, Chief Justice Spencer says it must be shown by the plaintiff, affirmatively and clearly, that the defendant knew when he made the subsequent promise that he had not received regular notice ; and the same doctrine is holden by Justice Story, in Martin vs. Winslow, 2 Mason, 241. It was also decided, in 7 Mass. R. 408, Garland vs. Salem Bank, where money was paid by an endorser, on supposition of a demand and notice, when none had been given, that an action lay to recover the money back. See also Miller vs. Hackley, 5 Johns. 375; Duryee vs. Denison, ditto 248; Donaldson vs. Means, 4 Dallas, 109; Tower vs. Durrell, 9 Mass. 332. In those cases, where the endorser has knowledge of the fact that there has been no demand upon the maker, and a new promise has been given, it has been considered as evidence of a waiver of demand and notice. Hopkins vs. Liswell, 12 Mass. 52; Pierson vs. Hooker, 3 Johns. 68; Ladd vs. Kenney, 2 N. H. R. 340. But this doctrine has been controverted. A new promise, in such case, may be considered, prima facie, as the acknowledgement of a debt rightfully due from the endorser, or drawer, which he is ready and willing to pay; but where it can be shown that no such consideration for a new promise existed, it is questionable whether it can preclude the endorser from his de275 fence. Lawrence vs. Ralston, 3 Bibb 102; Phillips vs. McCurdy, 1 Har. & I. 187; Walker vs. Laverty, 6 Munf. 487. It must be considered as settled law, that a new promise is void, unless it is shown affirmatively and clearly that the promise was made with a'ffull knowledge that there had been no demand upon the maker. Otis vs. Hussey, 3 N. H. R. 347. As there is no evidence of such knowledge in this case, and for this reason the acknowledgement may have been made under a misapprehension of the defendant’s liability, and not for the reason that he was the party in interest, or in any manner of right bound to pay the note, the promise must be considered as having been made without consideration, and The verdict must be set aside.