National Shoe & Leather Bank v. Gooding

Whitehouse, J.

The plaintiff bank seeks to recover against the defendant, as surviving partner of Merry & Gooding,on a writing of the following tenor, to wit:

"To Manufacturers’ National Bank of Lewiston.

Pay to M. C. Percival ninety-four 12-100 dollars.

Merry & Gooding.

[Indorsed] M. C. Percival.”

The writ contains a declaration on the ordinary money count, specifying this order as the groundwork of the suit.

The only evidence introduced by the plaintiff was the order above set forth, and an assignment in writing given by M. C. Percival to Benjamin F. Briggs, which included among other items, a paper designated as "a check of Merry & Gooding, $94.” Both of these papers were admitted subject to the defendant’s objection. Upon this evidence, thus received, the presiding judge ordered a nonsuit, and the plaintiff took exceptions.

The nonsuit was properly directed. The order which forms the basis of the suit was not negotiable, and the .plaintiff’s right to maintain an action upon it in its own name, by virtue of an assignment, is conferred by R. S., c. 82, § 130, which requires the assignee "to file with his writ the assignment or a copy thereof.” The plaintiff not only failed to do this, but the declaration in the writ contains no averment of such an assignment. The assignment offered in evidence was, therefore, not legally admissible against the defendant’s objection.

*339 But there is another objection which invalidates the plaintiff’s cause of action. It is a suit against the drawers of an order. Their contract was only to pay the amount of the bill in case the drawee refused to pay it. But there is no evidence that any demand was made on the drawee, that he ever refused to pay, or that due notice was given to the defendants of the non-payment of the order. The plaintiff must either prove-demand and notice, or show some excuse for the want of them. Townsend v. Wells, 32 Maine, 416.

Exceptions overruled.