Turnbull v. Maddux

Promissory note—Waiver by Indorser of Notice of Nonpayment—Evidence of Waiver. Kotice of the non-payment of a note at its maturity is the privilege of the indorser, but it is a right which he may waive; and he is considered to have waived such right, if after knowledge that the note was not protested for non-payment, he promised to pay the same. And the knowledge by the indorser of the non-payment by the maker may be inferred from circumstances.

Appeal from the Superior Court of Baltimore City. The appellee sued the appellant as indorser of a promissory note made by J. N. Ileflebower in favor of the appellant, and by him indorsed to the plaintiff. - The note^ was dated the 15th of January, 1881, and payable one year after date. The suit was brought the 19th of December, 1885. First Exception.—Stated in the opinion of the Court. Second Exception.—The defendant upon his cross-examinationJiaving denied that he had been told by Samuel D. Buck that the drawer of the note was cutting into his capital, the said Samuel D. Buck, was produced by the plaintiff as a witness in rebuttal, and stated that he was a member of the firm of Buck, Heflebower & Nier, from 1874 to 1884, and that their place was a few doors east of Turn-bull's; that-during the years 1881, 1882, 1883 and 1884, he frequently met Turnbuli; that in the year 1881, Heflebower had spent a good portion of his capital, and that he told Turnbull that Heflebower was drawing too much money and was cutting into capital; that he frequently discussed Heflebower’s affairs with Mr. Turnbull during the time mentioned, and that Heflebower’s condition got worse each year. The defendant objected to the admissibility of the testimony of Mr. Buck, but the Court (Phelps, J.) admitted the same. The plaintiff excepted. Third Exception.—The plaintiff offered the following prayer: If the jury believe that Heflebower made the note in question, and that it was endorsed by the defendant, and that the plaintiff, Maddux, thereupon gave the check for $2500, offered in evidence, and the money was used to pay a note belonging to the sister of Turnbull, on which he was endorser; and if they further find that on the 20th day of February, 1885, or afterwards and before this suit was brought, Maddux asked Turnbull when he was going to pay the note, and he then promised to pay it, or a part of it, when he sold his house ; and if thejury believe he meant the house he then lived in, and that it was sold in April, 1885, then the plaintiff is entitled to recover the amount due on the note, including interest to date, provided the jury believe that when Turnbull so promised to pay said note, he knew that the note had not been presented for payment at maturity, and notice of its non-payment had not been given him thereupon; and in determining whether he had such knowledge, they are at liberty to consider, in connection with the defendant’s testimony denying the same, the testimony bearing upon the relation of Heflebower to Turnbull, the circumstances under which the note was made and endorsed, the financial condition of Heflebower during the year 1881, and when the note matured, the fact that Heflebower was living with Turnbull, the length of time after the note was due when the alleged promise was made, the payment of interest in February and March, 1885; the intimacy of the plaintiff and defendant at and after the time the note was made and matured, and the frequency with which they met prior to the time when said alleged promise to pay was made. The defendant offered eight prayers as follows: 1. That there is no sufficient legal evidence in this case to enable the plaintiff to recover. 2. That if the jury find from the evidence that John Heflebower made the promissory note offered in evidence, and that the defendant endorsed the same, and that it was not protested for non-payment, and that it was not paid at maturity, and no notice was given to the defendant of such non-payment, and that no demand lor payment of said note was made upon the defendant until after the expiration of three years from the date of the maturity of said note, then the plaintiff is not entitled to recover in this case, notwithstanding they may find that after the expiration of said three years the defendant promised to pay the said note, because the plaintiff has not offered any evidence to prove that the defendant, at the time of such promise, knew that said note had not been protested, and not presented for payment at maturity, and not paid, and notice given to defendant of such non-payment. 3. That if the jury find from the evidence that John Heflebower made the promissory note offered in evidence, and that the defendant endorsed the same, and that it was not protested for non-payment, and that it was not paid at maturity, and no notice was given to the defendant of such non-payment, and that no demand was made upon the defendant for the payment of said note until after the expiration of three years from the date of the maturity of said note, then the plaintiff is not entitled to recover, unless the jury further find that the defendant at that time, or at some other time within three years next before the bringing of this suit, clearly and unequivocally promised to pay the said note, or acknowledged his .liability therefor with full knowledge of the facts, hut if the defendant did not at the time of any such promise, know that the note had not been protested for non-payment, or presented for payment at its maturity, and not paid, and notice thereof given to him, then the plaintiff cannot recover. 4. If the jury find the facts stated in the third prayer, and further find that the payment of interest by the defendant, if the jury shall find that it was made by him for J. N. Heflebower, and not for his, the defendant’s, own account, or for the purpose of fixing his, the defendant’s, liability, cannot he held to bind the defendant. 5. If the jury find the facts stated in the third 'prayer, and further find that the payment of interest by the defendant cannot, without other evidence, he taken by the jury as an acknowledgment of indebtedness by the defendant, so as to take this case out of the Statute of Limitations. 6. If the jury find the facts stated in the third prayer, and further find that the evidence given by the plaintiff, that the defendant promised him, if the jury should in fact find any such promise was made, and that it was made more than three years after the promissory note for which suit is brought became due, namely, to pay the plaintiff some of the note on which the suit is brought in this case, cannot bind the defendant, because it is too indefinite. T. If the jury find the facts stated in the third prayer, and further find that even if the jury should find from the evidence, that the defendant made to the plaintiff, after the expiration of more than three years after the day when the note on which suit is brought became due, a promise that the defendant would pay said note, or some of it, and that said promise was a conditional one, namely, to pay when the defendant sold his house, and that in fact the defendant at that time did not own any house, then the said promise cannot be relied on as evidence of a new promise in this case to take the case out of the Statute of Limitations. 8. That if the jury find the facts mentioned in the third and seventh prayers, and that the defendant’s wife had a house which was afterwards sold, the defendant is not entitled to recover on such promise, even if the jury should find that the said house was afterwards sold. The Court granted the plaintiff’s prayer, and the third and fourth prayers of the defendant, his fifth prayer being conceded, and rejected his first, second, sixth, seventh, and eighth prayers. The defendant excepted, and the verdict and judgment being against him, he appealed. *