Where the endorser of a promissory note, in conversation with
the agent of the holder, before its maturity, dispensed with a
presentation of the note and demand of payment, and promised to pay
it, or provide for its payment, at maturity, he could not, when
sued, set up as a defense that the note was not presented for
payment and demand made therefor when it was due, and that no
notice of its dishonor was given.
If, after the maturity of the note, the endorser promised the
agent of the holder to pay the same, having at the time of making
such promise knowledge of the fact that the note had not been
presented for payment, and no demand made therefor or notice of
nonpayment, he could not, when sued, set up as a defense a want of
such demand or notice.
The facts are stated in the opinion of the Court.
Page 61 U. S. 498
MR. JUSTICE McLEAN delivered the opinion of the Court.
An action was brought by Mathews against John Sigerson, as
endorser on a note of James Sigerson, now deceased, dated the 10th
of March, 1852, for the payment of the sum of two thousand dollars,
two years after date, at the Bank of the State of Missouri, with
interest from the date.
It was proved on the trial that in 1851 Mathews advanced largely
to John Sigerson on some transactions in pork, whereby Sigerson
became indebted to him in the sum of two thousand dollars; that
Sigerson wanted two years' time, on which Mathews required a
mortgage on real estate as security; but Sigerson offered to give
the note of his brother James, endorsed by himself, instead of the
mortgage; and he represented
Page 61 U. S. 499
that his brother James was the owner of a valuable real estate
near St. Louis, which offer was accepted, and the note was
given.
Sometime in the fall of 1852, Joseph E. Elder, a witness,
received the note from Mathews for collection soon after the death
of James Sigerson and before the note became due. Witness called on
John Sigerson, and asked him if he should have the note protested
against the estate of James Sigerson. He replied that the witness
need not do so, and that the note should be paid at maturity. The
witness then placed the note in his portfolio, where it remained
until after due. After it was due, witness called on John Sigerson
and informed him that he had neglected to put the note in bank for
collection, and asked him what he was going to do; he said he would
see witness in a few days, and arrange it. Afterwards Sigerson said
to the witness that he did not consider himself liable as endorser,
as the note had not been protested.
In February, 1852, John Sigerson sold his interest in the farm
near St. Louis, which was one-half of it, and which contained about
one thousand acres, to James Sigerson, who was to pay off the
encumbrances on the land, which amounted to about sixteen thousand
dollars. James executed twenty notes for two thousand dollars each,
payable in six, twelve, and eighteen months, and John Sigerson made
him a deed. In July, 1852, James reconveyed the land to John, and
the bargain was rescinded. This was done because James had not
fulfilled his contract. Nineteen of the notes were given up, but
the note now in suit was not surrendered, and for which the account
of James was credited on the books of John, James, on his decease,
left no property.
On the above facts, the court charged the jury,
"If they believe from the evidence that, before the maturity of
the note, in conversation with the agent of the plaintiff, the
defendant dispensed with a presentation of the note and demand of
payment, and promised to pay it or provide for its payment at
maturity, he cannot now set up as a defense to this suit that the
note was not presented for payment and demand made therefor when it
was due and that no notice of its dishonor was given."
That
"If, after the maturity of the note, the defendant promised the
plaintiff or his agent to pay the same, having at the time of
making said promise knowledge of the fact that the note had not
been presented for payment, and that no demand had been made
therefor, or notice of nonpayment given, the defendant cannot now
set up, as a defense to said note, a want of such demand or notice.
"
Page 61 U. S. 500
"If the defendant dispensed neither with the presentation of the
note and notice, nor promised to pay the same, having knowledge as
above stated, the plaintiff cannot recover."
Exception was taken to these instructions.
Certain instructions were asked by the defendant, which were
refused, but it is unnecessary to state them, as they are
substantially embraced in those given by the court.
As there was no formal demand of payment, nor protest for
nonpayment and notice, those requisites must have been waived by
the defendant to make him responsible as endorser, and to this
effect were the instructions of the court; and we think the
testimony not only authorized the instructions given, but also the
verdict rendered by the jury. Before the note was due, the
defendant said to Elder, the agent of Mathews, and who held the
note, that he need not take steps to collect it from the estate of
his brother James, as it should be paid at maturity. This was an
assurance which could not be mistaken, and it was relied on by the
agent. He placed the note in his portfolio, where it remained until
after it became due. After this, the agent called on the defendant
and informed him that he had neglected to take measures for the
collection of the note, and asked him what he was going to do; he
answered that in a few days he would see the witness and arrange
it. This was an unconditional promise to pay the note which no one
could misunderstand and which he could not repudiate at any
subsequent period.
A promise by an endorser to pay a note or bill dispenses with
the necessity of proving a demand on the maker or drawer or notice
to himself.
Pierson v. Hooker, 3 Johns. 68;
Hopkins v.
Liswell, 12 Mass. 52. Where the drawer of a protested bill, on
being applied to for payment on behalf of the holder, acknowledged
the debt to be due and promised to pay it, saying nothing about
notice, it was held that the holder was not bound to prove notice
on the trial.
Walker v. Laverty, 6 Manf. 487. An
unconditional promise by the endorser or a bill to pay it, or an
acknowledgment of his liability and knowledge of his discharge by
the laches of the holder, will amount to an implied waiver of due
notice of a demand of the drawee, acceptor, or maker.
Thornton v.
Wynn, 12 Wheat. 183;
Bank of
Georgetown v. Magruder, 7 Pet. 287. We think the
instructions of the court were correct, and that consequently the
judgment must be
Affirmed with costs.