Opinion
Appeal from the District Court of the Fourth Judicial District, San Francisco County.
This action was brought upon a promissory note, of which the following is a copy:
Marysville, Cal., April 12th, 1852.
$ 1000.00.
Sixty days from date I promise to pay Henry Pierce or order, the sum of one thousand dollars, value received of him.
Hugh Kennedy.
(Indorsed) Ford, Lathrop & Co.
The complaint contained two counts, one charging the defendants as joint makers, the other charging Ford, Lathrop & Co. as indorsers. It appears from the statement upon appeal, agreed to by the parties, that on the 12th day of June following, the day upon which the note fell due, Kennedy, the maker, was absent from the city of Marysville, but was somewhere in the vicinity, and no demand was made upon him for payment or left at his former place of residence.
No notice of demand or non-payment was given to the indorsers.
On the 14th day of the same month the note was presented to the indorsers for payment, who declined paying the same, saying that the note was due on the 12th of June, and as it was not presented on that day, they had a right to consider it paid.
The Court below granted a nonsuit, and plaintiff appealed.
COUNSEL:
Hackett & Judah, for Appellants.
Benham & Rice and George C. Bates, for Respondents.
No briefs on file.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred.
OPINION
HEYDENFELDT, Judge
The defendants, Ford, Lathrop & Co., were guarantors upon the note which is the foundation of this action. Their liability, according to the decision of this Court, in Riggs v. Waldo , 2 Cal. 485, is strictly that of an indorser, and they were entitled to notice of non-payment, even although the circumstance of the maker's absence might have excused a presentment, and demand upon him. The case cited has been incorrectly reported; the facts in that case should appear similar to the facts in this.
The Court below was correct in granting a nonsuit, and the judgment is affirmed.
Follows, Riggs v. Waldo , 2 Cal. 486;