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