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Porter v. Thom

Appellate Division of the Supreme Court of New York, Second Department
Apr 1, 1899
40 App. Div. 34 (N.Y. App. Div. 1899)

Opinion

April Term, 1899.

Albert G. McDonald, for the appellant.

George G. Reynolds, for the respondent.


On a former appeal we held that there was sufficient evidence that a demand for payment of the note had been made to justify the submission of that question to the jury; but we were of opinion that the evidence was insufficient to authorize a finding that the indorser, Julia S. Thom, when she made payments of interest, had any knowledge that the note had been dishonored. ( Porter v. Thom, 30 App. Div. 363.) The evidence on this appeal bearing on the first question is the same as that in the record previously before us, and we see no reason to change our former view thereon.

The plaintiff was in possession of the note when, as he testifies, he demanded payment from the maker. The maker did not ask for the production of the note at the time of the demand. "If, on demand of payment, the exhibition of the paper is not asked for, and the party to whom demand is made declines to pay on other grounds, a more formal presentment by actual exhibition of the paper will be considered as waived." (Daniel Neg. Inst. § 654; Lockwood v. Crawford, 18 Conn. 361; King v. Crowell, 61 Maine, 244.) Possession of the note seems sufficient. (Story Prom. Notes, § 243.)

On this trial the appellant, on his direct examination, testified that, after default had been made in the payment of the note, he said to the respondent: "I was tired of carrying it; that I was unable — I had asked Mr. Thom to pay it, and it was all promises, and she better make some arrangement to pay it herself or reduce the amount, or do something with it," to which "She said he had some little matter he thought he could make some money out of, and undoubtedly he could soon pay a portion of it, or something of that kind." On cross-examination he gave his statement to the respondent, as "I said I was tired waiting for him to fulfill his promises, and I think she better make some arrangement to pay it, or pay a portion of it; I was tired of his promises; that is the way I introduced it; that is all I said to her at the first." It is not pretended that the answer of the respondent constituted any promise on her part to pay the note. On the contrary, all she said, in answer to the appellant's request, was that the maker, not she, would probably pay it. The respondent, however, is sought to be held liable on the fact that many of the interest payments on the note were subsequently made by her check. If these payments were made not on her own account but on account of her husband, the maker, they would not constitute an acknowledgment of her liability on the note so as to operate as a waiver of the failure of the plaintiff to give proper notice of presentment and non-payment. (Daniel Neg. Inst. § 1168; Whitaker v. Morrison, 1 Fla. 25.) After the conversation that had occurred between the appellant and the respondent, and a letter from the former to the latter asking her to call the attention of her husband to the fact that the semi-annual interest was in default, we are inclined to the opinion that the evidence shows that the payments made by the respondent were on her husband's account and not on her own. But, however this may be, and if we assume the evidence on this subject presented a question for the jury, we think the present record shows the same failure in the plaintiff's case as appeared on the last appeal. The effect of plaintiff's testimony must be limited to the last statement made by him, that given on his cross-examination. The conversation as then narrated cannot be construed as apprising the plaintiff that the note had been dishonored at all. He did not state that payment of the note had been demanded. The maker of the note may have promised to pay it at some particular time and failed to keep his promise; yet, unless the demand was actually made, the note would not be dishonored so as to set the Statute of Limitations running in favor of the indorser. ( Parker v. Stroud, 98 N.Y. 379.) The rule should work the same in both directions. If the statement of the appellant would be insufficient to support the indorser's defense of the Statute of Limitations, we think it equally insufficient to charge her with notice that the note was dishonored.

The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.


Summaries of

Porter v. Thom

Appellate Division of the Supreme Court of New York, Second Department
Apr 1, 1899
40 App. Div. 34 (N.Y. App. Div. 1899)
Case details for

Porter v. Thom

Case Details

Full title:DAVID C. PORTER, Appellant, v . JULIA S. THOM, Respondent, Impleaded with…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 1, 1899

Citations

40 App. Div. 34 (N.Y. App. Div. 1899)
57 N.Y.S. 479