Smith v. Hirst

RICHARDS, J.

This is an appeal from a judgment in favor of the defendant N. A. Dorn after his demurrer to the

[508]

third amended complaint of the plaintiff had been sustained, the latter declining to further amend his pleading.

The facts of the case are these: On March 1, 1912, the defendant C. H. Hirst made, executed, and delivered to one L. L. Long his promissory note for the sum of one thousand five hundred dollars, payable one year after date, of which said note the defendant N. A. Dorn was the indorser. Before' the maturity of said note the maker thereof absconded and departed from the state of California, and had neither a residence nor place of business therein at the time said note fell due. Prior to the maturity of the note, said L. L. Long transferred and delivered the same to the plaintiff herein, who, also prior to the date of its maturity, delivered said note to the Crocker National Bank of San Francisco for collection. The first day of March, 1913, the date of the maturity of said note, fell on Saturday. At about the hour of 4 o’clock of said day, said note not having been paid, the said bank directed one Alice Spencer, a notary public, to give notice of dishonor of said note to said defendant Dorn, and at about 4:30 o’clock of said day said Alice Spencer personally and orally notified said Dorn that the said C. H. Hirst had absconded and departed from the state of California and was then absent from said state, and that said note had not been presented to C. H. Hirst for payment, and had not been paid by him. On the morning of March 3, 1913, said Alice Spencer inclosed in an envelope a written notice signed by her, to the effect that said note had not been paid, and addressed and mailed the same to the defendant Dorn at his office address in the city of San Francisco, which notice said Dorn received at his said office address on the morning of March 4, 1913. He did not pay the note, and this action was commenced to recover upon the same.

The judgment of the trial court in favor of said defendant was predicated upon the foregoing facts.

The sole question presented for decision upon this appeal is as to whether or not the said defendant Dorn had due notice of the dishonor of the note in question so as to bind him as its indorser. The appellant seems to concede that the written notice from the notary public mailed to said Dorn at his office on March 3, 1913, and received by him on the morning of the following day, to the effect that the note had not been paid, was insufficient to bind him as an indorser thereon for