Clayton v. Phipps

• Decision Date: 31 March 1851
• Parties: CLAYTON ET AL. v. PHIPPS ET AL.
• Court: Missouri Supreme Court

14 Mo. 399

CLAYTON ET AL.

v.PHIPPS ET AL.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM FRANKLIN CIRCUIT COURT.

This suit was brought on a note for $387 63, dated at St. Paul, Missouri, 17th October, 1848, signed by Griffin as maker and payable eight months after date to Thomas F. Clayton, or order, for value received, negotiable and payable, without defalcation or discount, with interest from maturity at the rate of 6 per cent. per annum, which was indorsed before maturity and delivered to Romulus J. Poindexter, who, before it was due, indorsed and delivered it to Phipps and others, a mercantile firm, in whose name the suit was brought in the court below. The petition alleges due presentment at maturity to the maker for payment and dishonored and due notice giveu to the indorsers. The writ was served on Clayton alone. The answer of Clayton does not deny, and of course admits the note, indorsements, &c., and alleges as the only defense that “plaintiffs have not used due diligence against the maker of said note, and that there is no legal obligation upon the part of the defendant to pay the same, and that John A. Griffin the maker of said note at the maturity of the same, and for some time after, was perfectly able to pay the same, but that plaintiffs failed in any way to coerce the payment of the same.” A replication was filed that plaintiffs did use due diligence and took necessary steps for collection of the same, and also a further special replication. Judgment was given for the amount of the note, in September, 1850. Motion for new trial, for usual causes, overruled. The testimony was that Clayton, from October, 1849, down to some time in the summer of 1850, repeatedly promised to pay the note, on different occasions. The bill of exceptions does not show that it contains all the evidence.

STEVENSON, for Appellant.

SPALDING & SHEPLEY, for Respondents.

I. The record does not show the whole of the testimony in the case. The bill of exceptions does not expressly, or impliedly represent that the evidence therein set forth was all the evidence given in the case. 7 Mo. R. 4; 4 Mo. R. 18.

II. The evidence shows repeated promises of Clayton, the indorser, to pay the note, getting thereby time for payment until he was sued. These promises were made after the note was due. This is waiver of presentment and notice, or rather is evidence of it sufficient (Ch. on Bills, 390) that delay in presentment for payment is excused or waived by subsequent promise. Consequences of neglect to give notice of non-payment of a bill or note may be waived. 7 East, 231; 6 East, 16. 12 Peters, 497, “A party to a note, entitled to a notice, may waive it by a promise to see it paid, or an acknowledgment that it must be paid.” 3 Johns. 68. Where indorser promises to pay, a previous demand of maker and notice to indorsee are to be presumed. 12 Mass. R. 52. If indorser of a negotiable note promise to pay it, it is waiver of notice and demand, if he have knowledge of laches, and such knowledge may be presumed. 6 Munf. 487. 12 Wheat. 183. A promise to pay by indorser is a waiver of demand and notice. 4 Rand. 764; 2 Conn. R. 487; 4 Dana, 103. That even a promise to pay before due is a waiver of demand and notice. 4 Pick. 525; 3 Camp. 332. That the subsequent promise is evidence of the notice being given, and the party is presumed to know of the laches or failure to pay. The party to the bill or note is presumed to know when it falls due. 1 Mo. R. 35, Pratt v. Hanley. When a bill is protested for non-payment, and no notice given to drawer, evidence of a subsequent promise to pay should go to the jury as evidence of a waiver of notice. 5 Mo. R. 544. That promise by drawer of bill raises the presumption that he had received notice of dishonor, and that promise to pay as soon as he could collect money was absolute in effect. Story on Prom. Notes, § 359. That a promise to pay by indorser is not a waiver, but independent evidence that notice has been given, and must be rebutted...