Hirschfelder v. Locey Mining & Manufacturing Co.

This is an action upon a 30-day draft, dated 5th September, 1891, for $150, drawn by the defendant Locey Mining & Manufacturing Company, to the order of B. G. Oppenheim, and duly accepted by the defendant Locey; that before maturity it was delivered to Oppenheim, and, also before maturity, indorsed and delivered to plaintiff; that it was presented for payment to both defendants on October 8, 1891, and payment refused. The defendant the Locey Mining & Manufacturing Company demurred to the complaint upon the ground “that it failed to state facts sufficient to constitute a cause of action,” which was overruled as frivolous. The demurrer admits all the allegations of the complaint; therefore admits that the draft was presented to both defendants, and payment thereof refused by each of them. The presentation to the demurring defendant of the draft for payment, I think, was sufficient notice to it that the defendant Locey had failed to pay the same. The law only requires that speedy notice of non-payment by the acceptor of a draft shall be given to its drawer, so that his rights may suffer no detriment by unnecessary delay. Such notice, the demurrer admits, was given in this case. I think that the complaint was sufficient, and the demurrer properly overruled. The defendant’s plea is purely technical, and should not be encouraged. Judgment affirmed, with costs. All concur.