Grant v. Spencer

This was an action on a promissory note — holder against indorsers —tried at the Madison county district court in June, 1868, before the court, and judgment given for plaintiff for amount due on note. Motion for new trial overruled, and case brought up on statement for new trial and order overruling same.

*139The complaint alleges that one Chapin, on the 1st of October, 1867, executed to the defendants his promissory note, due the 1st of March, 1868, for $700 in gold, with interest at five per cent per month until paid. That on the 7th of October, 1867, defendants indorsed said note to plaintiff; that plaintiff presented said note when due to said Chapin, and he paid $207.50 on same, but failed to pay more at that time, and that defendants had notice thereof; that on the 9th and 29th days of March, plaintiff called on said Chapin and demanded payment of said note, and on the 9th Chapin paid $100, and on the 29th, $85, but has since failed to pay balance due ; that plaintiff protested note, and gave notice to d efendants.

The answer admits indorsement of note; denies payment was refused, and states that when plaintiff presented note, Chapin asked plaintiff how much money he needed, and plaintiff said $200 would do him, and Chapin paid him $207.50; that on the 9th of April plaintiff called again, and received $100; and, on the 29th, called with defendant Spencer, and demanded payment, and received $85; deny notice of refusal to pay, and allege that they asked plaintiff several times if he had collected note, and he replied that he did not want the money, and it was drawing five per cent a month; deny owing plaintiff any sum, and ask judgment for costs.

The evidence in statement for new trial shows that note was indorsed by defendants ; that when note became due, defendant Spencer went with and introduced plaintiff to maker of note, to demand payment of same, which he did; that Chapin did not refuse to pay note, but asked plaintiff how much money he wanted; plaintiff replied $200 would do him, and Chapin paid him $207.50; that on the 9th of April, ’68, he called again and received $100 — all he demanded — and that on the 29th he called with defendant Spencer, and demanded payment; Chapin replied he was a little hard up, and asked plaintiff how much money would do him then; plaintiff said $85 would answer, but he must have balance soon; Chapin paid him $85. Two *140witnesses testified that plaintiff said fie did not want to draw money on note, for it was drawing five per cent a month, and he considered Chapin good as the bank. Note was not protested until two months after due, and three payments had been made on same, and no notice given of non-payment, except two months after due. Plaintiff testified and did not contradict foregoing statement of evidence as to protest, notice, etc.

The errors assigned on denying motion for new trial are, 1. That the court erred in not stating grounds for refusing new trial in writing; 2. In finding, from the facts, that plaintiff was entitled to recover, and that defendants were liable as indorsers; 3. In finding that plaintiff was entitled to five per cent per month on judgment.

Section 196, Civil Code, which provides that the court or judge shall state in writing the grounds upon which a new •trial is granted or refused, is directory, and it is not seen how the appellants were prejudiced by the grounds not being specially stated in writing. This case was tried by the court, and the question is, does the evidence or facts contained in the statement for new trial support the findings of court, that the plaintiff was entitled to recover against the defendants the amount due on the note as indorsers thereof. It was admitted that the writing in this case is a negotiable promissory note. To hold an indorser the note must be presented to maker at maturity and payment demanded, and if neglected or refused, notice given within reasonable time to indorser. The note in this case was presented at maturity by the holder, in the presence of one of the indorsers, to the maker for payment, who did not refuse to pay, but asked holder how much money he wanted; he said $200 would do him, and maker paid him $207.50. Some time after holder again presented note for payment and received $100 on same, and again (on 29th of April) presented note in presence of indorser and received $85 on same, the amount he said would do him at the time, but he must have balance in short time. There was no protest or notice under two months after note became due to indorser that payment *141had been refused, or that holder looked to indorsers for payment; but proof that holder told indorsers and others, after presentment and receiving $207.50, that he did not want to collect the money as it was drawing five per cent a month and maker was good as bank. Then if there was no regular notice, was the presence of the indorser, when demand was made, constructive notice, or such knowledge as would excuse notice, or any waiver of same ? We think not. “Knowledge in fact is no excuse for regular notice.” 1 Pars, on Bills & Notes, 521. And where the drawer of a bill undertook to present it after maturity, although attempts had been made by indorser to procure payment, it was held no waiver of notice. Pars, on Bills & Notes, 521. The expression in a conversation that note would be paid was held not sufficient to prove waiver of notice, or promise to pay or see it paid. 17 Pick. 332. There is in the statement no evidence to prove that there was notice or protest under two months, or that there was any waiver or promise to pay by indorsers ; and the court erred in finding the defendants responsible as indorsers and in overruling motion for new trial. Whether verbal notice is good under our statute may be questionable, but the point is not raised in this case. The third error assigned is the finding that plaintiff was entitled to five per cent per month interest on judgment. It has been decided in this court (but I believe since the rendition of this judgment) that a judgment could draw but ten per cent. But plaintiff appeared in this court and remitted all over ten per cent, which would have prevented defendants from being prejudiced thereby.

Judgment reversed and new trial ordered.

Exceptions sustained.