Minturn v. Fisher

Terry, J., delivered the opinion of the Court—Btjrnett, J., concurring.

The defendant, who was paying-teller in the banking-house of Page, Bacon & Co., at San Francisco, gave to the plaintiff, in payment of freight on certain goods, a check on said banking-house, which check was dated first of June, and payable on the the fifteenth of June, 1853. On the last named day the check was presented for payment to the defendant at the said house. Defendant informed the party presenting it that it would not be paid, alleging as a reason that the goods, to pay freight on which it was given, were damaged. The bill was not afterwards presented for payment, nor was any notice of non-payment given to the defendant.

The only question presented by the record is, whether, under the facts of this case, presentment and notice were necessary to fix the liability of the defendant as the maker of said bill.

As a general rule, the holders of bills are required to use the utmost diligence, and a failure on their part to make- the presentment, and in case of non-payment to give proper notice to [575]the drawer or endorser, will operate to release them from their liability on such bill.

This notice may be dispensed with by express waiver, or by any act which will amount to a waiver.

“ The consequences of a neglect to present for payment may be waived by the same circumstances which excuse the presentment for acceptance, or notice of non-acceptance, or non-payment.” Chitty on Bills, 358.

Among the circumstances which will excuse notice of nonpayment, is being informed by the drawer, before a bill is due, that it will not be paid at maturity. Chitty on Bills, 451: 13 East., 214; 5 M. & W., 418.

From the record of this case, it appears that the defendant, who was both the drawer and (by reason of his situation as teller of Page, Bacon & Co.) payee of the bill, informed the plaintiff’s agent before the maturity of the bill that it would not be paid.

This fact, under the authorities before cited, is sufficient to excuse presentment and notice. The failure to present at a proper time being in consequence of the act of defendant, he cannot take advantage of his own wrong to escape responsibility.