Opinion
(November Term, 1804.)
What shall be deemed reasonable notice to the endorser of a note of nonpayment by the maker must depend on the local situation and the respective occupations and pursuits of the parties. But it seems that where the parties live in the same town, from the 10 November to 26 January following is too great a delay in giving notice to the endorser of nonpayment.
On 10 November, 1801, John Barclay gave to the defendant a promissory note, which on the same day was endorsed by the defendant to the plaintiff. The note being payable on demand, the plaintiff, in (333) the presence of the defendant, asked Barclay when it should be paid, and was answered, in a day or two. On 26 January, 1802, Barclay became a bankrupt, and no other demand for payment from Barclay, besides what is above stated, appeared to have been made by the plaintiff before the day when Barclay failed; and no notice of the refusal or inability of Barclay given to the defendant until after Barclay's failure. It further appeared that between 10 November and 26 January following, the plaintiff received from Barclay considerable sums of money in payment of other demands. All the parties lived in Wilmington, and were commercial characters.
Wright for plaintiff.
Gaston Jocelyn for defendant.
submitted it to the jury, under all the circumstances of the case, to decide whether the plaintiff by his delay or indulgence to Barclay had not made the note his own, and discharged the defendant. The strict rule laid down in the English law books respecting bills of exchange and negotiable notes have never been deemed in force and in use in this State; and it was impossible to lay down an universal rule at the time when demand of payment should be made of the maker of the note, and notice given to the endorser. The rule must depend on the local situation and the respective occupations and pursuits of the parties. In this case he thought that the indulgence given by the plaintiff to Barclay was too long, and that the plaintiff should sustain the loss occasioned by Barclay's failure.
Verdict for defendant.
NOTE. — See Pons v. Kelly, ante, 45, and the references in the note to that case.
Cited: Johnson v. McGinn, 15 N.C. 278.