Talbot v. National Bank of the Commonwealth

If a promissory note specifies no place of payment, a presentment of it for payment at the former place of business of the maker, without any inquiry as to his place of residence, is not a good presentment to charge an indorser. If an indorser of a promissory note, relying upon a notice received from a notary public that the note has been dishonored, and, being called upon to pay the note by a subsequent indorsee, pays it to him, when in fact a proper demand has not been made upon the maker, such payment is made under a mistake of fact, and an action for money had and received will lie for the amount so paid. In an action for'money had and received, interest is to be computed only from the date of the writ, in the absence of evidence of a demand for the money before bringing suit.

Contract for money had and received. Writ dated June 11, 1879. The case was submitted to the Superior Court on agreed facts, in substance as follows : On September 15, 1877, the plaintiffs were the owners of a promissory note for $642.79, dated Kalamazoo, Michigan, September 10, 1877, payable five months after date to the order of Patrick Reynolds, signed by John J. Mullen, and indorsed by Reynolds and by the plaintiffs. On the above day, the plaintiffs offered the note, with their indorsement, to the defendant bank, of which they were customers, for discount, in the ordinary course of business; and the same was discounted by the defendant, and the plaintiffs received the amount of the note less the rate of discount agreed on. On the day the note matured, the maker occupied a house in Kalamazoo and had had a place of business there, but did not have any there on that day. The defendant, before the maturity of the note, sent it to a bank in Kalamazoo for collection, and, not having been paid at maturity, the note was protested by a notary, who stated in his protest that he presented the note at a certain bank and “ at the store lately occupied by John J. Mullen, and demanded payment thereof, which was refused; ” and that due notice “ that such note had been thus presented for payment, and that payment had been thus demanded and refused,” and that the holder of the note would look to the indorser for payment, was sent by mail to the indorsers. The note, after protest, was returned to the defendant, with the protest annexed; and the defendant called upon the plaintiffs as indorsers to pay the same. The plaintiffs, believing that a proper demand had been made on the maker, and that the note had been duly protested, paid the defendant the amount of the note, and took away the note with the protest annexed, the same being given up to them by the defendant simultaneously with the payment of the money. The plaintiffs did not know the contents of the protest, but, relying on the notice of dishonor sent them and the claim of the defendant, believed that the protest was good, and that they were bound to pay the note to the defendant. They then brought suit against the first indorser, Reynolds, at Kalamazoo, and, at the trial of that action, the above facts as to the protest, then first known to the plaintiffs, appearing, the court ruled that the note had not been properly protested, and that a verdict for the defendant would be ordered. Thereupon the plaintiffs became non-suit ; and, after a tender of the note to the defendant, brought this action. The Superior Court ordered judgment for the plaintiffs for $713.48 ; and the defendant appealed to this court.