Thompson v. Williams

Cope, J. delivered the opinion of the Court—Baldwin, J. concurring.

This is an action on a promissory note by the holder against the maker and indorser. The note is dated January 5th, 1857, and by its terms, became due on the following day. On the 26th of Movember, 1858, it was indorsed by the payee to the present holder, who, on the 29th of the same month, demanded payment of the maker, and on the same day, verbally notified the indorser of such demand, and that he would be held upon his indorsement. The question is as to the sufficiency of this notice.

Mr. Justice Story, in his work on Promissory Motes, (Section 348,) in speaking of the form of the notice of dishonor to be given, or sent to the indorser, says: “Mo precise form of words is necessary to be used upon such occasions. Still, however, it is-indispensable that it should either expressly, or by just and natural implication, contain, in substance, the following requisites: 1. A true description of the note, so as to ascertain its identity. 2. An assertion that it has been duly presented to the maker at its maturity and dishonored. 3. That the holder, or other person, giving the notice, looks t-o'the person to whom the notice is given for reimbursement and indemnity.”

The notice, in this case, was substantially as follows: The plaintiff said to the defendant, Borland, the indorser, that he had demanded payment of that note, and desired to know what he intended to do about it. Borland replied that he was not liable to pay. The plaintiff then said that his name was upon it, and he should endeavor to make him liable; to which, Borland responded, that he had lost by the arrangement, and could not he held. The note was neither produced nor described, but the Court below found, as a fact, that the defendant knew what note was referred to, and this finding was authorized by the circumstances, and his language and conduct on the occasion.

The object of the law in requiring a correct description of the note to be given in the notice to the indorser, is, that he may be put upon notice of the extent of his liability, and placed in possession of the material facts necessary to enable him to secure the liability of others over to him, and his own reimbursement, upon payment of the note. The rule was not intended to sub-serve a technical purpose, but to promote substantial justice, [163]and when it sufficiently appears that the indorser, at the time of receiving the notice, knew what particular piece of paper was referred to, and could not have been prejudiced by the failure to describe it, he cannot be permitted to object that his information was not communicated in a particular manner. This view was expressed by the Supreme Court of the United States in Mills v. The Bank of the United States, (11 Wheat. 431.) In that case, there was a misdescription of the date of the note, and it was contended that this defect in the notice was fatal to the right of recovery against the indorser. But the Court held that, under the circumstances, the notice was sufficient, and the following are among the reasons given for the decision: “Under these circumstances, the Court laid down a rule most favorable to the defendant. It directed the jury to find the notice good, if there was no other note, payable in the office at Cliilicothe, drawn by Wood & Ebert, and indorsed by the defendant. If there was no other note, how could the mistake of date possibly mislead the defendant ? If he had indorsed but one note for Wood & Ebert, how could the notice fail to be full and unexceptionable in fact?”