Amor v. Stoeckele
| Decision Date | 05 May 1899 |
| Citation | 78 N.W. 1046,76 Minn. 180 |
| Parties | AMOR v. STOECKELE et al. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Hennepin county; William A. Lancaster, Judge.
Action by James Amor, administrator of Theodore Gill, deceased, against George Stoeckele and others. Verdict for plaintiff against J. M. Davis, and from an order refusing a new trial he appeals. Reversed.
1. A promise to pay a note after maturity by an indorser, or a part payment thereon by him, with full knowledge of the laches of the holder in respect to demand and notice of nonpayment, constitutes a waiver of such laches.
2. Where it appears that no demand of payment was in fact made, the burden is on the plaintiff to show that the indorser had knowledge of the laches when he made the promise of payment.
3. The testimony of a witness on a former trial may be shown by the stenographer who took it, who may use his original notes to refresh his memory, and read the testimony therefrom in cases where he cannot speak from memory as to the facts, or from a transcript of his notes, on proof being made accounting for the nonproduction of the original and showing the correctness of the transcript, but it is error to permit him to read from such transcript without laying such foundation therefor. S. Meyers, for appellant.
Ferree & Mead, for respondent.
The complaint herein alleged that the defendant Davis sold and indorsed before its maturity, and for value, a promissory note for $250, payable to his order, to the plaintiff's intestate; that no demand was made upon the makers of the note when it became due, but that the defendant waived such demand; and, with full knowledge that such demand had never been made, he afterwards, and on October 12, 1897, made a payment thereon of $13.25. These allegations were put in issue by the answer. Verdict for the plaintiff against the defendant for the amount due on the note, and he appealed from an order denying his motion for a new trial.
A promise to pay a note after maturity by an indorser, or a part payment thereon by him, with full knowledge of the laches of the holder in respect to demand and notice of nonpayment, constitutes a waiver of such laches, and binds the indorser, so that he will not afterwards be permitted to set up the defense that the demand and notice were not in fact made and given. 2 Daniel, Neg. Inst. §§ 1147-1165; 4 Am. & Eng. Enc. Law (2d Ed.) 463, 464. Where, as in this case, it appears that no demand of payment was in fact made, the burden is on the plaintiff to show that...
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Johnson v. Umsted
...proper way to prove them was by the stenographer who took the testimony or by some other person who heard the admissions. Amor v. Stoeckele, 76 Minn. 180, 78 N. W. 1046; Howard v. Illinois Central R. Co., 116 Minn. 256, 258, 133 N. W. 557. See Jones, Evidence (3d Ed. 1924) § 343; 3 Wigmore,......
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Cooper v. Hoeglund
...rule. Heydman v. Red Wing Brick Co., 112 Minn. 158, 127 N.W. 561; see, State v. Walso, 196 Minn. 525, 265 N.W. 345; Amor v. Stoeckele, 76 Minn. 180, 78 N.W. 1046. The mode of examination followed the accepted rules in such cases. 6 Dunnell, Dig. & Supp. § 10351; see, Aide v. Taylor, 214 Min......
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