Whether certain facts in reference to an alleged notice to the
endorser, and demand of payment of a promissory note by the drawer,
amounted to a waiver of the objection to the want of demand and
notice, is a question of fact, and not matter of law for the
consideration of the jury.
The Court is entirely satisfied with its former decision in the
case of Union Bank of Georgetown v.
3 Pet. 87.
MR. JUSTICE STORY delivered the opinion of the Court.
This cause was formerly before the Court upon a writ of error to
the Circuit Court of the District of Columbia sitting for the
County of Washington. The judgment then rendered was reversed,
Magruder v. Union Bank of
3 Pet. 87, and a venire facias de
awarded, upon which, a new trial having been had, the
cause is again before us upon a bill of exceptions taken by the
plaintiffs at the last trial.
The action is brought by the plaintiffs, as endorsees, to
recover the contents of a promissory note made on 8 November, 1817,
by George Magruder, deceased, whereby he promised, seven years
after date, to pay to George B. Magruder, the defendant, $643.21,
with interest, for value received, and which was endorsed before it
became due by the defendant to the plaintiffs.
Page 32 U. S. 288
There are several counts in the declaration. The first is
founded on the liability of the defendant as endorser, and avers
that the maker of the note died before the note became due, and the
defendant took administration on his estate, and after the note
became due, to-wit, on 11 November, 1824, due demand of payment was
made of the defendant, as administrator, who refused to pay the
same, and, having due notice, became liable to pay the same. The
second count alleges that when the note became due, the same not
having been demanded of the maker nor protested for nonpayment, and
notice not having been given to the defendant (the defendant being
before, and when the same became due, the administrator of the
maker), and the defendant, well knowing that the same had not been
paid, afterwards, on 15 November, 1824, in consideration thereof,
and in further consideration that the plaintiffs would not bring
suit on the note against him as endorser, but would give time to
him for the payment thereof (not saying for what time, or for a
reasonable time), the defendant promised that he would ultimately
and in a reasonable time, pay the same to the plaintiffs. Then
follow the common money counts.
The bill of exceptions is in the following words:
"In the trial of this cause, the plaintiffs, to support the
issues on their part, offered a competent witness, Alexander Ray,
who proved that two or three days after the note fell due, he had a
conversation with defendant, asked him if he could arrange the
note; that if he did not, probably the officers of the bank would
be blamed, he said, no officer should lose anything by him, and
that there was some property on Cherry Street, which witness
understood that George Magruder in his lifetime owned; that the
would repair it, and that it would become valuable. Mr. Thompson
had had a previous conversation with him; the defendant had not
been informed by me that the note was overdue, and not demanded.
Also, James Thompson, who proved, that as soon as it was discovered
that the note was over, he and the cashier conversed about it, and
about three or four days after it was overdue, he determined to
call on defendant, and request him to arrange it, and state
Page 32 U. S. 289
the circumstances attending the note; that he then called on
defendant, and found him from home; left word, he wanted him, a day
or two after, defendant called at bank; he went aside with him,
told him the circumstances attending the neglect in relation to the
note, and requested him to take time and determine what he would do
as to arranging the note; telling him that he did not wish
defendant to say a word to him to commit himself, but to consider
whether, if he did not arrange it, the bank might not do him a
greater injury than the amount of the note; that some time after
this conversation, he had another with defendant; that the
defendant asked him, if the debt was lost, whose loss would it be;
would it fall on any of the officers of the bank? Witness replied
that he did not known how that would be, that he could not answer
that question; that the bank would perhaps look to the officers,
and the defendant then said no officer of the Union Bank should
lose anything by him; that he afterwards had another conversation
with defendant, in Mr. Wharthon's store; that defendant said, 'he
meant to pay the note, but would take his own time for it; that he
would not put himself in the power of the bank.' He thinks this
last conversation was about three or four months after the note
fell due. That just before the suit was brought, the witness was
desired by the president of the bank to call on the defendant, and
know what he meant to do with the note; that he did so, and that
defendant then said, 'I will pay that note now, if the bank will
take the house on Cherry Street for what it cost me.'"
Witness reported the answer to the president, who said, the bank
did not want the house, and shortly afterwards suit was brought.
Plaintiffs further proved, that the defendant, when the note fell
due, and before, was administrator of the maker of the note, George
Magruder, who had died before the note fell due, and who, it is
also admitted, was insolvent.
"Whereupon, the plaintiffs, on the aforegoing evidence, prayed
the court to instruct the jury as follows:"
" That if the jury believes the defendant held the above
conversation as stated by the witnesses, such conversations amount
to a waiver of the objection of the want of demand and notice, and
the defendant is liable on the note if the jury should
Page 32 U. S. 290
believe that the defendant made the acknowledgments and
declarations stated in the conversations in reference to the claim
of the bank upon him as endorser of the note,"
"which the court refused. And the plaintiffs then prayed the
court to instruct the jury as follows:"
" That if the jury believes from the evidence aforesaid that the
defendant, after knowing of his discharge from liability as
endorser of the said note, by the neglect to demand and give
notice, said that he meant to pay the note, but should take his own
time for it, and would not put himself in the power of the bank,
and that the bank forbore bringing suit, from the time of said
conversation, about three or four months after the note fell due,
until the date of the writ issued in this cause, then the
plaintiffs are entitled to recover on the second count of the
"which also the court refused to give, to which refusal to give
the said instructions the plaintiffs excepted."
The question is whether these instructions, thus propounded,
were rightly refused by the court. And we are of opinion that they
were. The first requests the court to instruct the jury upon a mere
matter of fact, deducible from the evidence, and which it was the
proper province of the jury to decide. It asks the court to declare
that the conversations stated (sufficiently loose and indeterminate
in themselves) amounted to a waiver of the objection of the want of
demand and notice. Whether these did amount to such a waiver was
not matter of law, but of fact, and the sufficiency of the proof
for this purpose was for the consideration of the jury.
The second instruction is open to the same objection. It calls
upon the court to decide upon the sufficiency of the proof to
establish that there was a forbearance by the plaintiffs to sue the
defendant upon the note, and of the promise of the defendant, in
consideration of the forbearance, to pay the same. That was the
very matter upon which the jury were to respond, as matter of fact.
It is also open to the additional objection that it asks the court
to decide this point, not upon the whole evidence, but upon a
single sentence of the conversations stated, without the slightest
reference to the manner in which
Page 32 U. S. 291
the meaning and effect of that sentence was, or might be,
controlled by the other points of the conversation, or the
attendant circumstances. In either view, it was properly
The Court have also been called upon to review their former
decision in this case. 28 U. S. 3
To this it might be a sufficient answer to say that no case is made
out upon the record, calling for such a review; and if it were, we
are entirely satisfied with that decision. The judgment of the
circuit court is therefore
Affirmed with costs.
This cause came on to be heard, on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington and was argued
by counsel, on consideration whereof it is ordered and adjudged by
this Court that the judgment of the said circuit in this cause be
and the same is hereby affirmed with costs.