Moore v. Tucker, 25 N.C. 347, 3 Ired. 347 (1843)

June 1843 · Supreme Court of North Carolina

25 N.C. 347, 3 Ired. 347

JAMES MOORE vs. JAMES TUCKER.

June 1843

Where, upon the dishonor of a bill of exchange or promissory note, dorsce has neglected to give the proper notice, the drawer or endorser of hill or endorser of the note will still be liable, if, after a knowledge of all the facts, which in law would have discharged him, he promises to pay the bill or note.

Appeal from the Superior Court of Law of Surry County, at Spring Term, 1843, his Honor Judge Dick, presiding.

This was an action of assumpsit, in which the plaintiff" declared in three counts, 1st. for the price of a slave; 2dly„ on a written assumpsit by endorsing a bond in the words and signatures following, to-wit; “ One day after date I promise to pay James Tucker, three hundred dollars, value received. Witness, my hand and seal. Sept. 14th, 1835.

(Signed) D. WALKER. [Seal.]”

Endorsed as follows : “I assign the within note to James Moore, for value received. Sept. 15th, 1835.

(Signed) JAMES TUCKER.”

3dly. Upon a parol assumpsit. The note and assignment were admitted ; and the plaintiff then proved, that sometime previous to September, 1835, in Grayson county, in the State of Virginia, he sold a negro slave to the defendant, who lived in North Carolina, for which the defendant gave his note; that the defendant on the 15ih of September, 1835, in the State of Virginia, assigned to the plaintiff the above recited bond on D. Walker, which had been executed in North Carolina, in payment of the note he had before given for the slave; that on the 24th of October, 1837, the plaintiff commenced suit in Grayson county, Virginia, on the bond, and failed to make his debt — that in February or March, 1839, he presented by his agent a transcript of the record of the suit in Virginia to the defendant in North Carolina, and demanded payment, when the defendant promise(j tQ pay ^ ^y giving his note with surety at six months, which was agreed to by the plaintiff, and which the defendant afterwards failed to do. It was also in proof that Walker, the maker of the note, remained solvent long enough for the plaintiff to have recovered his debt from him, but was insolvent at the time of the promise. The Court charged the jury, that, if they believed the testimony, the plaintiff was entitled to recover. The jury accordingly rendered a verdict for the plaintiff, and judgment being given thereon, the defendant appealed.

Morehead for the plaintiff.

Boy den for the defendant.

Daniel, J.

The bond was iudorsed by the defendant in Virginia. The judge instructed the jury, that, upon the evidence offered in the case, the plaintiff was entitled to recover ; and we agree with his Honor. It is certainly true, that the consequence of not duly presenting a bill or note is, that all the antecedent parties are discharged from their liability, whether on the instrument or on the consideration for which it was given, except the maker of a note or bond and the acceptor of a bill, who are in law the principal debtors on the same. 1 Leigh’s Nisi Prius, 442, and the cases there cited. But it is equally true, that, as the rule, requiring notice to be given in a reasonable time of a demand and refusal to pay, was intended for the benefit of the party entitled to it, that party may waive the consequence of a neglect of giving due notice; and the waiver may be either express, or implied from circumstances. It has been held that the subsequent promise to pay the debt, when the promisor had full knowledge of all the facts, which in law would have discharged him, will dispense with proof of notice. But the promise must be express, unconditional and'unequivocal, to operate as a waiver of due notice of the dishonor oí a bill. In this case it appeared, that an express promise was made by the defendant, with a full knowledge of all the facts, •which, supposing the law of Virginia to be the same as ours, would have exonerated him from liability on his indorsement, and he is liable on it. See all the cases collected, Leigh’s N. P. 456, 457. The judgment must be affirmed.

Pkr Cumam. Judgment affirmed.