Lilly v. Petteway

• Citation: 73 N.C. 358
• Parties: EDMUND J. LILLY v. JAMES PETTEWAY and others.
• Decision Date: 30 June 1875
• Court: United States State Supreme Court of North Carolina

73 N.C. 358

EDMUND J. LILLY

v.JAMES PETTEWAY and others.

Supreme Court of North Carolina.

June Term, 1875.

*1 Where in an action upon a bill of exchange, it was in evidence that the defendant, the payee, had written a letter to the plaintiff and holder of the bill, in which he said: “I have seen M, of the firm of P & M, the drawer of the bill, who says, that in a week or two the note you write me about, will be attended to; if not, please write me--do not bring suit; if they do not attend to it, I will make all satisfactory to you:” Held, that the letter contained no evidence that the defendant knew that this bill of exchange had not been presented at the time of writing the letter, and that therefore he was entitled to his discharge.

If the endorser of a bill of exchange, with knowledge of the material facts which discharge him, promises to pay such bill, he is bound to do so.

This was a CIVIL ACTION to recover the value of a bill of exchange, tried before Buxton, J., at Spring Term, 1875, of CUMBERLAND Superior Court.

The action was brought by the plaintiff as holder of the following bill of exchange:

“$875.00.

Sixty days after date pay to the order of John Dawson eight hundred and seventy-five dollars value received, and charge to account of

JAMES T. PETTEWAY.

TO PETTEWAY & MOORE,

Wilmington, N. C.”

+-------------------------+
                ¦Endorsed,¦“JOHN DAWSON.” ¦
                +-------------------------+
                

It was admitted that the bill was drawn by James T. Petteway and accepted by the drawees, Petteway & Moore, and that it was endorsed by John Dawson, and that it had not been paid.

The defendant, Dawson, insisted that the bill had not been duly presented and payment demanded of the acceptor, Petteway & Moore; and if there was a demand of payment and a refusal or failure to pay on the part of the acceptors, that there was not due notice given to defendant, Dawson, of such demand and refusal.

The counsel of the defendant, Dawson, was permitted by the Court, during the progress of the trial, and in his absence, to amend the sworn answer of the defendant, so as to present the points of this defence distinctly. The Court also granted leave to the counsel for the plaintiff to amend the complaint, either then or afterward, in conformity with the facts of the case as proved.

The plaintiff offered no evidence of the presentment of the bill to the acceptors for payment, nor of due notice to the endorser, John Dawson, of its non-payment; but read in evidence a letter of John Dawson to the plaintiff, relating to the paper in suit, of which letter the following is a copy:

“WILMINGTON, Jan. 27th, 1871.

M. E. J. LILLY,

My Dear Sir: In answer to yours of the 24th, received this morning, I have seen R. Moore, of Petteway & Moore, who says, in a week or two the note you write me about will be attended to; if not, please write me. Do not bring suit; if they do not attend to it I will make all satisfactory to you. I thought they had paid it to you long since.

Yours very truly,

+-----------------------+
                ¦(Signed)¦JOHN DAWSON.” ¦
                +-----------------------+
                

*2 No protest was attached to the bill. It was admitted that Petteway & Moore had gone into bankruptcy. The plaintiff insisted that this letter, being an unequivocal promise to pay the debt made after a default on the part of the plaintiff in presenting the bill to the acceptor and giving notice of the refusal to pay to the endorser, was not only a waiver of such default, but was evidence from which the jury might infer that the promise of the defendant was made with knowledge of the laches of the holder, and that this dispensed with the necessity of proof of actual presentment and notice, and requested his Honor so to charge the jury.

The defendant, Dawson, insisted:

1. That this letter was a mere proposition on the part of the defendant. That it did not appear that it was accepted by the plaintiff. It does not amount to a promise to pay, and was not, therefore, a waiver of demand and notice, and that defendant was not liable, and requested his Honor so to instruct the jury.

2. That if it was an absolute promise to pay, yet as at the time the letter was written, there had been no demand on and no refusal on the part of the acceptor to pay, the plaintiff at that time had no cause of action against the defendant, the promise was without consideration, and the plaintiff could not recover, and asked his Honor so to instruct the jury.

3. There is no evidence that at the time the letter was written, the defendant had any knowledge that the plaintiff had failed to make demand of the acceptor for payment, and had failed to give notice to the defendant; and that if this letter amounted to an absolute promise to pay, being made without a knowledge of the facts and the laches of the holder, that the defendant Dawson was not liable, and requested his Honor so to instruct the jury.

His Honor refused the instruction prayed for by the defendant, and charged the jury:

That ordinarily, in order to charge the endorser with liability, it was necessary for the holder of a bill of exchange to prove a demand on the acceptor at maturity, and due notice, that is, reasonable notice, that such demand was ineffectual. An endorsee might, however, waive laches in the holder, in respect to the demand and notice, by a subsequent promise to pay, made with a knowledge of the circumstances, which, but for the promise, would discharge him. In the present case, there was no evidence of due demand and notice. There was evidence contained in the letter of John Dawson to the plaintiff of a subsequent promise to pay, and it was apparent that when he wrote the letter, on the 27th of January, 1871, that John Dawson, the endorsee, knew whether he had received notice or not; that being a fact within his own knowledge. While there was no evidence of a demand upon the acceptor at maturity, still if the jury could reasonably gather from this letter that Dawson made the promise therein contained, after a knowledge of the fact that due demand had not been made, then plaintiff was entitled to a verdict. But if the jury could not reasonably so infer from this letter, then the plaintiff was not entitled to recover, and their verdict should be for the defendant, John Dawson. The burden of theproof is upon the plaintiff, and the evidence must preponderate in his favor before he is entitled to a verdict.

*3 To the refusal of his Honor to charge the jury as requested, and to the...