Horton v. Reid

• Court: Oklahoma Supreme Court
• Writing for the Court: HURST, Justice.
• Citation: Horton v. Reid, 184 Okla. 389, 87 P.2d 936, 1939 OK 120 (Okla. 1939)
• Decision Date: 28 February 1939
• Docket Number: 28413.
• Parties: HORTON v. REID.

87 P.2d 936

184 Okla. 389, 1939 OK 120

HORTON v. REID.

No. 28413.

Supreme Court of Oklahoma

February 28, 1939

Syllabus by the Court.

1. Under Section 11381, O.S.1931, 48 Okl.St.Ann. § 173, the person entitled to require presentment for payment may waive the same, but the maker of a promissory note cannot waive the indorser's right to have the note presented for payment to the one primarily liable thereon.

2. Allowing or refusing to allow plaintiff to amend his petition after the evidence is closed, rests generally in the discretion of the trial court; and, unless this court finds that such discretion has been distinctly abused, such action of the trial court will not be disturbed. Fisher v Kansas City, M. & O. Ry. Co., 1934, 169 Okl. 282, 36 P.2d 744.

Appeal from District Court, Murray County; Eugene Rice, Judge.

Action by Sallie Horton against Luther A. Reid on a note held by plaintiff and indorsed by the defendant. From a judgment in favor of the defendant, the plaintiff appeals.

Judgment affirmed.

Brett & Brett, of Ardmore, for plaintiff in error.

Blanton Curtis & Blanton, of Pauls Valley, for defendant in error.

HURST Justice.

This is an action by Sallie Horton, holder of a promissory note against her immediate indorser, Luther A. Reid. Defendant's demurrer to plaintiff's evidence was sustained, and plaintiff brings this appeal.

The pertinent facts are these: Plaintiff was the holder of a promissory note dated March 20, 1934, due one year after date and payable at Dallas, Texas. The note was executed by the Vinsonite Company, payable to the order of Guy Tucker and indorsed by Tucker and defendant Reid. It does not contain the usual waiver of demand, presentment for payment, protest and notice of protest and non-payment. On March 12, 1935, eight days before the maturity date of the note, plaintiff wrote a letter to the maker at Dallas, Texas, in which she stated that the note would soon be due and that she was expecting payment on the due date. Thereafter, on March 26, 1935, six days after the due date, she wrote again to the maker and demanded payment. On March 27, 1935, the maker wrote plaintiff that it would not pay the note. Upon receipt of this letter, plaintiff informed defendant Reid that she would look to him for payment.

The defense was that defendant was discharged from liability by the failure of plaintiff to make presentment for payment to the maker and timely notice of dishonor to the indorser.

1. Section 11369, O.S.1931, 48 Okl.St.Ann. § 161, provides: "Presentment for payment is not necessary in order to charge the person primarily liable on the instrument; but if the instrument is, by its terms, payable at a special place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to a tender of payment upon his part. But except as herein otherwise provided, presentment for payment is necessary in order to charge the drawer and indorsers."

Section 11370, O.S.1931, 48 Okl.St.Ann. § 162, provides in part that "where the instrument is not payable on demand, presentment must be made on the day it falls due".

These sections are a codification of the Negotiable Instruments Law and it is now a closed question that in order to fix the liability of the indorser on a promissory note these provisions must be complied with, excused or waived. The contract of the indorser is not that he will in all events pay the note, but his agreement is contingent and his liability is fixed only upon the non-payment by the maker and the compliance by the holder of the formalities prescribed by statute. 3 R.C.L. 1177, § 394.

Plaintiff does not contend that the note was presented for payment on the due date, but contends that the requirement of presentment is for the protection of the maker, and not the indorser, and may be excused or waived by the maker. It is argued that the maker waived presentment here by not demanding it and by stating that it had no funds with which to pay the note. She relies on Sec. 11381, O.S.1931, 48 Okl.St.Ann. § 173, which provides in part: "Presentment for payment is dispensed with: * * * 3. By waiver of presentment express or implied." We may assume, without deciding, that the maker waived presentment by its conduct, but the question is whether the maker or a promissory note may waive the indorser's right to have the instrument presented for payment to the person primarily liable. There is no contention that the maker was acting on behalf of the indorser, or that the maker's acts were known to, or ratified by, the indorser.

It is settled that the act or declaration which is to operate as a waiver of presentment, demand, protest or notice must be ...