Seeley v. Bisbee

Hutchinson, J.

stated the substance of the ease, and pronounced the opinion of the Court.

The demand, made in this case, was made in the forenoon of the last day of payment, and notice given back to the defendant, the endorser, in the afternoon of the same day. Probably the notice back was given before the time of payment had elapsed. For perfect regularity, the demand ought to have been made but just previous to the setting of the sun, and, as these parties lived, notice back, that evening or the next day. It appears, however, by the exceptions, that, when the plaintiff gave the defendantnotice that he had been to the place of payment, in the forenoon of the same day, and no grain was there ready for him, the defendant ¡requested the plaintiff not to sue him, and promised to come the next week and settle ; which must mean, pay the note. The ■defendant objects that this promise was without consideration; and that it does not prove the declaration. This promise cannot be saidto be without consideration, when the defendant was endors-ei‘ a llotG= and was informed of that which convinced him, that the note would not be paid by the signer : especially if we consider also, the previous agreements of the defendant and makers by which the defendant must have known, when he endorsed the note, that it would come back unpaid* But this promise needs no consideration for its use on this trial. It is not declared upon, nor relied upon, as a substantive cause of action, but only brought in to afiect the question of demand and notice. In that view, it was proper testimony upon this declaration. There has been some discussion, in the Courts in New-YorJc,as I perceive in Anthon’e ■Nisi Prius, about the variance, when the declaration alleges a demand and notice in the usual form, and the proof is, a fruitless search to make a demand and give notice; but, if I rightly recollect, there has been no decision that it was a variance* But this case is more free from objection than that; for here was a demand, and notice back* The question arises upon the sufficiency of this demand and notice. This promise, under all its circumstances, was more than a waiver of further demand and notice. It Was calculated to prevent the same, for, the plaintiff might well rest satisfied, after this promise from the defendant*

But there is something more in this case. A writing is introduced madecotemporaneously with the note, and intended to suspend the payment of half the note for a year from the time it Would become payable by the terms of the note. This was objected to, but correctly admitted. The contracts made together upon the same subject are to be construed together as one instrument-. So the agreement to receive the pay, in maintaining the defendant’s parents, was correctly admitted. And so far as paid in that way, must affect the note as fully as if the sameffiad been paid to the defendant in money, before the maker had notice (of the assignment* All these matters brought together show the defendant entitled to no notice. Our statute makes the note in the hands of the plaintiff, as indorsee, subject to all the equities, that existed in favor of the signer, and against the payee, before notice of the assignment. It was a fraud upon the plaintiff for the defendant to sell him the note so shackled by his contracts that did not appear upon the note. These make the defendant stand as a drawer of a bill of exchange, without funds in the hands of the drawee. The agreement to give further day of payment was not absoulute j but it was to be granted if the signer found it inconvenient to pay at the day set in the note, and when the plaintiff told him no grain was at the place of payment, he must have known the maker might, and would, rely upon his agreement for further pay-day. He did well, under these circumstances, not to put the plaintiff to the trouble of any further demand and notice, but promise to pay as he was already holden to pay.

Royce and Hodges for the plaintiff.

Williams, for the defendant.

The judgment of the county court is affirmed, with additional interest and cost, pursuant to the statute.