Brownlee v. Benitz, 3848.

• Decision Date: 22 January 1934
• Docket Number: No. 3848.,3848.
• Citation: 28 P.2d 1042,38 N.M. 145
• Court: New Mexico Supreme Court
• Parties: HALLOWELL & BROWNLEEv.BENITZ et al.

38 N.M. 145

28 P.2d 1042

HALLOWELL & BROWNLEE

v.BENITZ et al.

No. 3848.

Supreme Court of New Mexico.

Jan. 22, 1934.

Appeal from District Court, Dona Ana County; Frenger, Judge.

Suit by Hallowell & Brownlee against Professor R. Leroy Benitz and others. From a judgment of dismissal as to defendant Benj. A. Luchini, plaintiff appeals.

Affirmed and remanded.

In suit against indorser on note, denial of presentment and dishonor on information and belief held sufficient; it not being apparent that facts of presentment and dishonor were necessarily within indorser's knowledge.

Edwin Mechem, of Las Cruces, for appellant.

W. A. Sutherland, of Las Cruces, for appellees.

BICKLEY, Justice.

In a suit by appellant upon a note upon which appellee Luchini was an indorser sought to be charged, the cause was dismissed as to the defendant Luchini.

The complaint, among other things, alleged that at the maturity of the note plaintiff presented the note at the place of payment designated therein, namely, at the office of the First National Bank, Hatch, N. M., and demanded payment of the same, but said note was not paid.

The action of the court in dismissing the case as to defendant Luchini is the error complained of on this appeal.

Appellee asserts that presentment and demand and dishonor or legal excuse for failure to present, or waiver, expressed or implied, upon the part of the indorser, must be shown in order to charge the indorser. Appellant does not challenge this principle but says:

[1] First, that the defendant Luchini by answering the allegations of the complaint by denial on information and belief raised no issue and the allegations thus denied must be admitted, citing Chicago, R. I. & E. P. R. Co. v. Wertheim, 15 N. M. 505, 110 P. 573, 30 L. R. A. (N. S.) 771, Ann. Cas. 1912C, page 148. The annotation to this case in Ann. Cas. 1912C, 149, suggests that there is a distinction between the effect of a denial on information and belief and a denial as in this case of knowledge or information sufficient to form a belief. However, the distinction, if any, has not been observed here as is indicated in Department Store Co. v. Hat Co., 17 N. M. 112, 125 P. 614, and we will not pursue the subject for the reason that it is not apparent that the facts of presentment for payment to the maker at the time and place designated and dishonor were necessarily within the knowledge of the indorser Luchini. So we find this point of appellant to be without merit. See Kempner v. McMahan, 35 N. M. 313, 296 P. 802.

Appellant's second contention is that the undisputed evidence shows that due demand and presentment were made. This is vigorously challenged by appellee Luchini. No specific finding of fact was requested or made by the trial court on this subject. We have examined the record, however, and are in disagreement with appellant.

[2][3] Lastly, appellant asserts: “The undisputed evidence in the case shows that the defendant waived demand and presentment.” This seems to be appellant's main reliance. Appellee while challenging the correctness of the statement says that this point should not be considered by this court because presented for the first time on this appeal.

We do not find the question of waiver hinted at in the pleadings. “Where a party seeks to excuse actual presentment, demand, and notice of nonpayment on the ground that the same have been waived by the party he seeks to charge, he must plead the facts.” Bergmann v. Roll, 195 Wis. 120, 217 N. W. 746, 748, 56 A. L. R. 915, citing 8 C. J., Bills and Notes, § 1190. The reasons for this rule are set forth in Pier et al. v. Heinrichoffen et al., 52 Mo. 333, and Lumbert & Co. v. Palmer, 29 Iowa, 104. In Standard Encyclopedia of Procedure, p. 269, it is said: “In an action against an indorser the declaration must aver demand of payment from the maker, his refusal to pay and notice to the indorser, either direct or by stating facts showing the equivalent thereof or by excusing them.” In a note to the foregoing text it is said: “Whether the demand and notice were waived was not in issue. The petition alleged demand and notice, not waiver thereof. To be of any avail a waiver must be pleaded.”

Appellant cites some early decisions presenting a contrary view. Most were apparently rendered prior to the adoption of the system of code pleading. The Missouri and Iowa decisions cited, supra,...