Kelly v. Ford., (No. 7986)

• Decision Date: 16 October 1934
• Docket Number: (No. 7986)
• Court: West Virginia Supreme Court
• Parties: Josephus A. Kelly v. A. C. Ford et al.

115 W.Va. 435

Josephus A. Kelly

v.A. C. Ford et al.

(No. 7986)

Supreme Court of Appeals of West Virginia.

Submitted October 9, 1934.

Decided October 16, 1934.

1. Bills and Notes

Except as otherwise provided in the Negotiable Instruments Law, presentment of a negotiable instrument for payment is necessary in order to charge an indorser.

2. Bills and Notes

Except as otherwise provided in the Negotiable Instruments: Law, when a negotiable instrument has been dishonored by non-payment, notice of dishonor must be given to an indorser, else he is discharged.

3. Bills and Notes

Notice of dishonor of a negotiable instrument may be waived by an indorser either expressly or impliedly. To constitute an implied waiver, the acts of an indorser must be such as would warrant the holder in not taking the steps necessary to charge the indorser.

Appeal from Circuit Court, Doddridge County. Action by Josephus A. Kelly against A. C. Ford, Charles W. Brown, and others. From an adverse judgment, Charles W. Brown appeals.

Reversed.

Harvey W. Harmer, for appellant.

J Paul Bumgardner, for appellee Josephus A. Kelly.

Hatcher, Judge:

The plaintiff, J. A. Kelly, purchased three negotiable notes executed by defendant A. C. Ford, upon which defendant C. W. Brown was an indorser. The notes were dated January 3, 1928, were each for $250.00, and were payable in one, two and three years from date, respectively, at the First National Bank of West Union. In a suit to enforce payment Brown was held not liable on the two notes first maturing, and judgment was entered against him on the third. He appeals on the ground that the note was not presented for payment at the place designated, and that he did not receive the notice of dishonor required by law.

The plaintiff does not claim to have presented the note for payment at the designated bank. His counsel would excuse presentment on the theory that Brown did not have the money in the bank to take up the note at maturity, citing Nichols v. Poole, 47 N. C. 23. That case was between holder and maker not holder and indorser and is merely declaratory of Negotiable Instruments Law (Code 1931, 46-1 to 17, inclusive), section 70 of which provides: "Presentment for payment is not necessary to charge the person primarily liable," such as the maker of a note. The section continues: "But except as herein otherwise provided, presentment for payment is necessary in order to charge the drawer and indorser." The other provisions referred to are contained in sections 79, 80 and 82. Section 79 relates only to presentment to a drawer. Section 80 dispenses with presentment in case of an indorser "where the instrument was made or accepted for his accommodation," etc. Section 82 excuses presentment where with reasonable diligence it cannot be made; where it is waived; or where the drawee is fic- titious. Consequently, those sections have no application to this situation.

Section 89, N. I. L., requires notice of the dishonor of a negotiable instrument to be given an indorser; otherwise he is discharged. The plaintiff claims that he mailed a letter to Brown on December 30, 1930, stating that the last note had not been...