Wooley v. Lyon

• Decision Date: 15 May 1886
• Citation: 6 N.E. 885,117 Ill. 244
• Parties: WOOLEY v. LYON.
• Court: Illinois Supreme Court

117 Ill. 244

6 N.E. 885

WOOLEY

v.LYON.

Supreme Court of Illinois.

May 15, 1886.

Error to appellate court, Second district.

Frank Crosby and J. W. Raustead, for plaintiff in error.

R. M. Botsford and R. M. Ireland, for defendant in error.

SHELDON, J.

This action was brought by Lyon, as indorsee, against Wooley, as indorser, of two promissory notes, one for $632.36, the other fro $626.85, both dated July 9, 1875, one payable in 60, the other in 90, days, made by Dobbins & Co., and payable to the order of Wooley, at the maker's office in Chicago, Illinois. Upon the trial in the court below there appeared upon the notes, over the indorsement of Wooley, the following: ‘Pay to order of Thos. R. Lyon.’ There also appeared the following: ‘Without recourse. Orrin W. Potter, as Executor Estate E. B. Ward.’ The plaintiff had judgment for the amount of the notes, which was affirmed by the appellate court for the Second district, and the defendant brings this writ of error.

The errors which are here insisted upon are in respect of instructions to the jury. The notes were indorsed in blank by Wooley, and were negotiated by him, so indorsed, in Michigan, having been sent, after some correspondence, from Fruitport, Michigan, to Ludington, Michigan, in payment for lumber purchased by Wooley of the estate of E. B. Ward, or, rather, in payment of two other similar notes which had been so given by Wooley for lumber.

The second and fourth instructions given for the plaintiff informed the jury that the notice to an indorser was sufficient to fix his liability if the notice was mailed to him at his place of residence, or any post-office where he was then in the habit of receiving his mail; and that the notice was sufficient if mailed to the defendant at Fruitport, Michigan, if he then had a place of business there, or was in the habit of receiving and sending out mail there, even if he then resided at Grand Haven, and received some of his mail there. Objection is made to these instructions that there was no proof of notice to the indorser mailed to a post-office where he was then in the habit of receiving his mail. The objection is groundless. It appears from the testimony of Wooley himself that he had a place of business at Fruitport, Michigan, received mail there, and sent mail from that point, kept a clerk or agent there, and had various men employed there; and there was distinct evidence that the notice was mailed to him at that place.

The sixth instruction given for the plaintiff is objected to, which was to the effect that if, after the maturity of the notes, the defendant was informed of their non-payment, and, being so informed, acknowledged his liability as indorser, and agreed to settle or pay the amount due, then it is immaterial, under the Michigan law, whether the protest was legal or proper. This instruction, if faulty, could have done the defendant no harm, for the reason that the necessary steps under the law of this state were taken to charge defendant as indorser, viz., demand of payment, protest for non-payment, and notice of non-payment addressed to defendant at a proper place, all which the evidence shows were duly made and given in accordance with our own law, where the defendant's liability became fixed, and it was immaterial whether or not he made a subsequent promise to pay the notes. The notes being payable in this state, and the contract of indorsement being made in Michigan, and the indorser residing there, the law of the place where the notes were payable we consider governed as to time and mode of presentment for payment, manner of protests, and giving notice. 2 Pars. Notes & Bills, 344, 345; 1 Daniel, Neg. Inst. §§ 911, 912; Rothschild v. Currie, 1 Adol. & E. (N. S.) 43; Hirschfeld v. Smith, L. R. 1 C. P. 350. There is a conflict of authority as to what law should govern in the giving of notice of dishonor,-whether the law of the place of payment or the law of the place where the indorsement is made. Aymar v. Sheldon, 12 Wend. 439, and some other American cases, hold the notice should be according to the law of the place of the indorsement; and see Redf. & B. Lead. Cas. Bills & Notes, 712, in note to above case of Aymar v. Sheldon. We are disposed to adopt the rule that the notice should be in accordance with the law of the place where the bill or note is made payable, as resting upon the better reason.

It was set up in defense that defendant had settled this liability...