Brower v. Wooten, 4 N.C. 70, 1 Taylor 70 (1817)

Jan. 1817 · Supreme Court of North Carolina
4 N.C. 70, 1 Taylor 70
BROWER against WOOTEN

BROWER against WOOTEN.

Notice to an thenon-pay-a note should be g!V-pei-so^autho-0 rized by him. Jt shouui also intimate to thaUie01561’ looked to for of the money.

THIS Action was brought against the Defendant, endorser of a note made by Lands dale, and payable in January 1814, but by the endorsement made payable in J rj of the same year. The Plaintiff, in due time, warranted the maker, obtained judgment and execution, on which there was a return of “ no property to be found.” ⅝ ; 1 he Constable then who acted for the Plaintiff to collect moneyi both as an officer and friend, told the Defendant he should have to come on him for the money; but said, he was not authorized to do so as the agent of the Plaintiff, who lived at a distance. The Plaintiff warranted the Defendant without further notice, and the cause came up to Bladen Superior Court, by appeal, where it was tried *71béfbré Hall, J. who instructed the Jury in favour óf the Defendant; but they found contrary to his Charge.

Upon a motion for a New Trial, the case was referred to this Court, upon the question, Whether if the verdict be against Law, yet as the finding is consistent with the Equity of the case, ought a New Trial to be granted?

Henry, for the Defendant.

It is well settled, that notice of the failure of the drawer must be given by the bolder himself or his agent: It is not sufficient that the endorser should be informed of it by some third person.* Neither will the insolvency of the maker excuse the endorser from a strict compliance with the rule.†

It may safely be argued that the justice of the case too is with the Defendant, for where one of two innocent persons must süffer, the loss ought to fall upon him who occasioned it. But whenever a vtrdict is given against the known rules of Law, a New Trial will be granted. ‡

Taylor, C. J.

An endorser undertakes to pay a note only in the event ol the maker’s not paying it, and, there fore, when the endorser receives the note he undertakes to apply to the maker; and il after it becomes payable, he is guilty of neglect and the maker becomes inoslvent, he loses his recourse against the endorser. Notice is necessary to the endorser, because he is liable only _ in a secondary degree, and after everv thing has been done by the endorser which he engaged to do. It is not, therefore, enough that the endorser should be apprised of the default of the maker, but he should be distinctly notified that the holder looked to him for payment: for notice of non-payment might be accompanied with circumstances, showing that the endorser had, by his neglect, discharged the endorser. The notice in this case was of no more effect than if it had been given by a third person, because the Constable was not authorized to give it. The insol* vency of the maker creates no difference, and the Law *72of the case fomrs its justice, where the reciprocal en-^ gagement of parties stimulates that something is to be done before a right of recovery can exist.

New Trial.