Sigerson v. Mathews

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Missouri.

The facts are stated in the opinion of the court.

It was argued by Mr. Cushing and Mr. Gillet for the plaintiff in error, and by Mr. Blair for the defendant.

The points made by the counsel for the plaintiff in error were the following:

First. The note in question was not an accommodation note, made for the defendant.

The evidence shows that there could be no pretence that the note in question was made for the accommodation of the defendant; but that it was, in fact, a regular business note, taken by defendant on the sale of real estate, without security. And that when, at a subsequent day, the property was re-deeded, and the remainder of the notes given up, the defendant credited this particular note on another debt (account) due him from James Sigerson, the maker. When it was given, and when it was transferred, the defendant must have confidently expected that it would be paid by the maker. When he took back the property, and credited the note to the maker, he clearly relied upon its being paid by the maker, or he would not have given him credit for it until he had actually taken it up, or he have been discharged from it as endorser.

Second. Unless the defendant agreed, unconditionally, after the note became due, and after he knew that the note had not been presented for payment, to pay said note, he was not liable therefor.

The note not having been made for the defendant's accommodation, he could only be made liable by presentation at the bank, demand of payment, and notice of non-payment. His liability depended upon the holder taking the steps required by law to charge him. If they had been taken, his liability became fixed by them, but otherwise not. If he supposed they had not been taken, and that he had been made liable, and acted under a mistake in relation to the facts, he would not be bound by such action when the real facts are developed. If he made any promise, on misapprehension of the facts, he is not bound by it, because the inducement to make it was unreal, and was not what it appeared to be. A promise under such circumstances has nothing to stand upon. There is no evidence that the note had been presented to the bank, or that any steps whatever had been taken to charge the endorser; nor does it appear that the defendant had been informed of the true state of the facts in relation thereto at the time of the conversation, which is now claimed to be a promise of payment.

In Thornton v. Wynn, 12 Wheat., 183, it was held that where the promise or agreement was not unequivocal, it would not authorize a recovery.

Third. An agreement to pay the debt of a third person by an endorser, where the note was not presented at the time and place of payment, and notice of non-payment duly given, unless made and signed by the party to be charged, upon a consideration specified therein, is not binding, and cannot be enforced.

Fourth. The suggestion by the defendant to the plaintiff's agent, that he need not prove the note against the estate of James Sigerson, and that it would be paid at maturity, created no liability on the part of the defendant.

The liability of the defendant did not depend upon the probating of the note, nor did the remark that it would be paid at maturity amount to a promise to pay. It implied that there would be funds ready to take it up at the time and place of payment, and nothing more. The inference was, that the means would be supplied by those whose duty it would be to provide for the payment.

Nor did the suggestion to Elder tend to show that a presentation, demand of payment, and notice of non-payment, were dispensed with. The remark that the note would be paid at maturity seems to imply that the defendant expected the note would be paid at maturity, on being presented in the usual course of business. It clearly implied that it was expected, when it matured, it would be presented somewhere to be paid; and as no place or person was named, the time and place named in the note must have been intended. It follows, that there was no waiver by the defendant of the condition of presentation, demand, and notice of non-payment, prior to its falling due.

The defendant did not occasion the omission of that necessary duty in order to create a liability on his part. Nothing was said on that subject. The plaintiff's agent was left to take such steps as his principal directed, or that he deemed expedient, and the plaintiff must abide the consequences.

Fifth. The court erred in instructing the jury upon questions not raised by the evidence.

Mr. Blair said:

The principle declared by the court amounts only to this, as has been said in a similar case, (that of the Taunton Bank v. Richardson, 5 Pickering, 436,) that a party may dispense with conditions for his benefit; and it has been applied in many cases similar to this. (See Dinkwater v. Tibbatts, 5 Shepley, p. 16; Boyd v. Cleveland, 4 Pickering; Marshall v. Mitchell, 35 Maine, 221; Thornton v. Wynn, 12 Wheat., 183; and the Union Bank of Georgetown v. Magruder, 7 Pet., 287. See also Story on Bills, 389, 390, 499 to 507; Jones v. Foles, 4 Mass., 245, 253; Farmers' Bank v. Waples, 4 Harring., 429; Hoadley v. Bliss, 9 Geo., 393; Lary v. Young, 8 Eng., 402; 5 Pickering, 436; 8 ib.; 1 Har. and J., 531; 2 N. H., 340; 1 Hill S.C.., 411; 3 Met., 434.)

Mr. Justice McLEAN delivered the opinion of the court.