Toothaker v. Cornwall

Appeal from the Sixth Judicial District.

The plaintiff brought suit against Pierre B. Cornwall, as indorser of a promissory note, drawn by Barton Lee, dated Sacramento, November 8th, 1850, for the sum of $500, and payable to the order of said Cornwall, on the 1st day of July, 1851, with interest, at the rate of one per cent, per month. After the usual allegations, as to the making and indorsement of the note to plaintiff, the complaint further alleged that, “when the said note became due and payable, viz: on the 1th day of July, 1851, at the place aforesaid, diligent search and inquiry was made after Barton Lee, the maker of said note, in order to present the same to him for payment; but that neither the said Barton Lee nor was any other person on his behalf found ready and willing to pay the said note, said Barton Lee not being a resident of Sacramento, and having no place of business therein; of all which the said defendant afterwards, * to wit, on [29] the day and year aforesaid, and at the place aforesaid, had notice, by reason whereof,” etc.

The defendant answered, denying every allegation of the complaint, and specially, that a demand was made of Barton Lee, the drawer of the note sued on; that he (the defendant) had notice of the non-payment of said note, by said Lee; and further alleging that, by the negligence of the holder of said note to make such demand, and give such notice, he, the defendant, was discharged from all liability.

On the trial, the plaintiff offered the note in evidence, and called Mr. Hyer as a witness, who testified that he knew the handwriting of Lee, the maker, and of Cornwall, the indorser: that on the 4th of July, 1851, the said note was placed in his hands for protest; that he took the note, and inquired generally for Lee and his place of business; that he found Cornwall in front of the Orleans House, and presented the note to him; told him he was unable to find Lee, and asked him if he knew where Lee was; thinks Cornwall told him Lee was in-the mines; he then informed Cornwall that he had the note, and presented it to him; made formal demand on him as indorser; asked him if he would pay it; Cornwall replied, he intended to avail himself of every advantage; that, if he escaped its payment, it would be the first he had ever indorsed that he had not had to pay. He gave Cornwall regular formal notice of his inability to find Lee, or bis place of business; thinks this was about 4 or 4J o’clock P. M. The note was handed to him (for protest) at the dinner table at the Sutter Hotel; it was in the afternoon. Cornwall had a place of business in the city (he thinks), opposite the Orleans House. Lee had before that made an assignment, and (he thinks) had also revoked it. On this evidence the plaintiff rested his case. The defendant moved the Court for a nonsuit, on the grounds that the notice to Cornwall, if a notice of the non-payment of the note was insufficient and premature. The Court entered judgment for the plaintiff for debt, interest and costs, whereupon defendant appealed.