Opinion
March Term, 1864
E. Moore, for the respondent.
I am of the opinion that the non-suit was properly denied. The note was dated at New York, and the place of business of the makers when it was given, was at No. 110 Broadway. It seems that when payable (and unknown to the holder), the firm of Seymour, Moore Co. (the makers), had been dissolved, and a new firm (Seymour, Morton Co.), had succeeded them in business at the same place. There was a person in attendance in the office from whom the notary demanded payment, but who refused to pay, saying he had no money, and referred him to a Mr. Lincoln, an agent of the makers, at No. 54 William street. The notary went to No. 54 William street, and saw Lincoln, who did not dispute his agency or connection with the makers, but knew nothing about the note, and refused to pay it. Upon being inquired of, if he knew where the makers were, he said he supposed they were "out west."
When a promissory note is not made payable at any particular place, generally, in order to charge the endorser, payment must be demanded of the maker at his place of residence or business. Yet there are various exceptions to this rule. If the maker has no known residence or place, the holder will be excused from making any demand whatever. So, if in the intermediate period between the time when the note was made and when it becomes due, the maker has removed his domicil or place of business to another state, the holder will be excused for non-presentment for payment, and will be entitled to the same recourse against the endorsers, as if there had been a due presentment. It will in such case, be sufficient to present the note at his former residence or place of business. ( McGruder v. The Bank of Washington, 9 Wheaton, 598; Taylor v. Snyder, 3 Denio, 145.)
In this case, the residence of the makers, when this note was made, was in the city of New York, and their place of business at No. 110 Broadway. The note was presented for payment there. It was found that they had removed, and been succeeded in business by another firm. The notary was referred by their successors to a Mr. Lincoln, their agent, for information as to the note and the where-abouts of the makers. Lincoln did not dispute his agency or connection with them, but knew nothing about the note. He said he supposed they were "out west." The common understanding of the phrase is, "in the Western states," it means out of this state.
Not finding the makers of the note, or any one of them, at No. 110 Broadway, the place of business of the firm when the note was made, the question is whether due diligence was used to ascertain where to demand. The makers had removed their place of business, unknown to the holder of the paper; and, on inquiry of their agent, the notary was informed by him they were "out west." This was equivalent to saying that they were out of the state. This, I think, was sufficient. ( Foster v. Julien, 24 N.Y.R. 28.) When the maker of a note has removed into another state, subsequent to the making of the note, the holder need not follow him to make a demand; but it is sufficient to present the note at his former place of residence or business. Indeed, in such case, the holder is excused from making a demand. The judgment should be affirmed.
All the judges concurred, except INGRAHAM, J., who read an opinion in favor of reversal.
Judgment affirmed.