Fisk v. Miller (1883) · DecisionDepot

Fisk v. Miller

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court May 9, 1883Published

Before: Ross

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Holding. The court held that the defendant Miller was liable as an indorser and that the plaintiff's complaint sufficiently alleged presentment, demand, and notice of dishonor. Furthermore, the court found the notary's protest served as prima facie evidence of proper notice and that the defendant's tender was insufficient in amount.

Issues

Whether the defendant Miller is liable as an indorser of the note.
Whether the complaint sufficiently alleged presentment, demand, and notice of dishonor.
Whether the notary's protest constitutes sufficient evidence of notice to the indorser.
Whether the defendant's tender was sufficient in amount.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Miller, by his act, became indorser, and liable as such.”

“The protest was prima faeie evidence of those facts, and the facts show a sufficient notice to the indorser of the dishonor of the note.”

“The tender relied on, if otherwise good, was insufficient in amount.”

Synopsis

Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from, an order refusing a new trial.

The note in controversy was payable sixty days after date, and the plaintiff purchased it before maturity at a discount of seventy-five dollars, the note being for seven hundred and fifty dollars, with interest at the rate of one per cent per month. After the commencement of the action, the indorser tendered to the plaintiff an amount equal to the sum he paid for the note and the interest and costs which had then accrued, but the plaintiff refused to accept it. The action was brought against the maker and indorser, but the only defense was by the indorser.

Ross, J. The note in suit was made by the defendant Barker, indorsed before maturity at the request and for the benefit of Barker by the defendant Miller, and then sold by Barker to the plaintiff. Miller, by his act, became indorser, and liable as such. (Fessenden v. Summers, 62 Cal. 484.)

The averment in the complaint of presentment, demand, refusal, and notice we think sufficient. It is, “ that said note at maturity was presented to said George M. A. Barker for payment, and ^payment thereof demanded, but the same was not paid, of all which due notice was given to said defendant, Thomas S. Miller.” The protest of the notary shows the fact of presentment to and demand on the maker for payment, and refusal on his part to pay, and the further fact that notice of such demand and non-payment was given on the next day by the notary to the indorser, by delivering the same at his residence, Bo. 1,208 Leavenworth Street, in the city of San Francisco, to a person in charge, of discretion, apparently acting for him. The protest was prima faeie evidence of those facts, and the facts show a sufficient notice to the indorser of the dishonor of the note. (Pol. Code, § 795; Civ. Code, § 3144.)

The tender relied on, if otherwise good, was insufficient in amount.

[369]Judgment and order affirmed.

McKinstry, J., and McKee, J., concurred.

Hearing in Bank denied.

Fisk v. Miller

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