Belford v. Bangs
| Decision Date | 31 March 1884 |
| Citation | 15 Bradw. 76,15 Ill.App. 76 |
| Parties | ALEXANDER BELFORDv.FLETCHER BANGS ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding. Opinion filed May 20, 1884.
Messrs. HUTCHINSON & PARTRIDGE, for appellant; as to indorsement, cited Daniell on Negotiable Instruments, § 728; Maxwell v. Vansant, 46 Ill. 58; Holbrook v. Vibbard, 2 Scam. 465; Bond v. Bragg, 17 Ill. 69; Evans v. Anderson, 78 Ill. 558.
The lex mercatoria is in force in Michigan: Cicotte v Morse, 8 Mich. 424; Aniba v. Yeomans, 39 Mich. 171; Stewart v. First Nat. Bk., 40 Mich. 348; Whittier v. Wright, 34 Mich. 92.
Mr. N. M. JONES, for appellee.
This was assumpsit, by Bangs & Co. against appellant, as indorser of a promissory note. The note was made by B. F. Twombley & Co., payable to the order of appellant, for the sum of $335.81, dated at Detroit, Michigan, and payable at the Second National Bank of Detroit, one month after date. It was indorsed by appellant as follows: Attached to it was a certificate of protest, which set forth that Henry W. Jessop, the subscribing notary, had presented said note at the place where it was made payable, on the 11th day of October, 1879, and demanded payment thereof, which was refused; that he had protested the same in the usual form, and on the same day he had put due notices that said note had been presented for payment and that payment was refused, into the post office at Detroit, Michigan, with the full legal postage paid thereon, and directed as follows, after diligent inquiry being made for the residence and place of business of the drawers and indorsers:
“Notice for A. BELFORD.
BANGS & CO.,
Z. E. NEWELL, Cashier.”
“Directed all to Z. E. Newell, Cashier, New York City, N. Y.”
“Each of the above named places being the reputed place of residence and business of the person to whom the same was directed, or for whom it was left as aforesaid.”
The declaration alleged, in the first count, that the appellant indorsed said note to appellee by the name of Bangs & Co.; that said note was duly presented for payment, and payment refused, and that it was thereupon protested under the laws of Michigan; and due notice of such protest having been sent to appellant and the makers of said note, as required by law, the appellant became liable to pay the same.
The second count alleged the insolvency of the makers, and averred that a suit against them would have been unavailing.
The case was tried by the court without a jury, resulting in a judgment for the plaintiff for $421, and the defendant appealed to this court.
The only question that need be considered in the present case is as to whether the requisite notice of the non-payment of the note was given to appellant to charge him as indorser. The contract of indorsement is regarded as entering as a condition in the contract, of the drawer or indorser of a bill, or of the indorser of a note, that he shall only be bound in the event that acceptance or payment has been duly demanded, and he be notified if it is not made: 2 Daniell on Neg. Inst., 28. At common law, which includes the lex mercatoria governing negotiable paper (Cook v. Renic, 19 Ill. 598), the performance of this condition was indispensable to the fixing of a liability upon the indorser. 2 Daniell on Neg. Inst., p. 28; Bond v. Bragg, 17 Ill. 69; Cicotte v. Morse, 8 Mich. 428. Here the note was dated at Detroit, in the State of Michigan, and in the absence of proof to the contrary, will be presumed to have been indorsed there. Maxwell v. Vansant, 46 Ill. 58; Daniell on Neg. Inst., § 728.
The indorsement created a new and distinct contract, and is governed by the law of Michigan where it was made: 2 Par. Con. 568; Holbrook v. Vibbard, 2 Scam. 462; Bond v. Bragg, 17 Ill. 69; Maxwell v. Vansant, supra. In the...
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