Opinion
July Term, 1827.
From Martin.
1. An indorser discharged by the laches of the holder, being ignorant of such laches, promises to pay. The promise is not binding, although it appear that on a sale of real estate by the indorser to the maker, the note and a deed of trust were taken to secure the purchase money, and the deed still held by the indorser at the time of the promise.
2. Where the maker is a seaman, without any domicil in the State, who goes on a voyage about the time the note falls due, no demand on him is necessary in order to charge the indorser.
ASSUMPSIT against the defendant, as indorser of a single bill or obligation, of which one Best was the maker and the defendant the payee. On the trial before his Honor, Mangum, J., at the Autumn Term, 1826, of the court below, the plaintiff proved the execution of the note and the indorsement, and further proved that Best was a seafaring man, and, at or about the time the obligation fell due, sailed from Washington, in this State, as captain of a vessel trading between that place and New York. One or two days before the maturity of the bond, one Hyman, as agent of the plaintiff, caused two letters to be written, each addressed to Best, and demanding payment, and sent one of them by mail to Plymouth and the other to Washington, and the day the bond came due he gave to the defendant a written notice, at the same time informing him that he had written the letters to Best. Coffield said he supposed he should have to pay this bond, but he should avoid the payment of another which he had indorsed to one Watts, who had failed to give him notice. Coffield also informed Hyman that he had a deed of trust from Best for a tract of land to secure the payment of the note, and requested him to take the land in discharge of the claim; and, upon his refusing, desired him (248) not to press the collection of the money, and Hyman promised to indulge him as long as he could.
Hogg for the appellant.
Attorney-General contra.
By the deed of trust it appeared that Coffield had sold to Best a tract of land, and for the purchase money had taken the obligation on which this action was brought, and the one indorsed to Watts, and Best conveyed the same land in trust to secure the payment of these obligations.
Upon this evidence the plaintiff's counsel insisted, either that no demand was necessary or there was such a promise to pay by the defendant as to avoid it.
The judge instructed the jury, first, that if Coffield had sold the land to Best, and in order to secure the payment of the purchase money to himself, and without any view to an indorsement, took the obligation and deed of trust, he had not thereby waived his right to insist on a due demand of the obligee, and notice to himself; secondly, that though the jury should believe Coffield did promise to pay, yet if at the time he was ignorant that payment had not been demanded of Best, the promise did not dispense with the demand, nor bind Coffield; and, thirdly, that though the payment of the obligation to Coffield was secured by the deed of trust, and the payment being thus secured to him, he afterwards promised to pay the same to the plaintiff, he was not bound thereby, the deed of trust not being a sufficient consideration to support the promise.
Under these instructions a verdict was found for the defendant, and, a new trial being refused, the plaintiff appealed.
The judge was right in the three propositions laid down by him in his charge; but another point properly arose upon the facts stated in the case, which was not duly (249) noticed. It was proved that Best, the maker of the obligation, was a seafaring man, and, at or about the time the obligation became payable, sailed from Washington as master of a vessel bound to New York; and it did not appear that he had a domicil, or any establishment within the State, at which payment could be demanded. The maker being at sea, in his usual employment, and the indorsee not being bound to follow him beyond the State, it follows that if he had no such domicil or establishment, a demand should be dispensed with.
In this view of the case the defendant was liable upon his indorsement, without any express promise to pay, and the jury should have been so instructed, and consequently, for the judge's omission to give such instruction, there must be a new trial.
PER CURIAM. Judgment reversed, and new trial awarded.