Public-domain · open source
OpenJurist

138 Mass. 446

Corner v. Pratt

Massachusetts Supreme Judicial Court

Decided January 26, 1885

Massachusetts Supreme Judicial Court · decided 1885-01-26

<p>The indorser of a promissory note, on the day the note matured, telegraphed to the payee and holder of the note that the maker of the note was absent from the State and was expected on a certain day, and that “ I ask recall of note due, and hold over till I see him." The indorser afterwards had an interview with the payee, in which he promised to pay the note in a certain manner, but failed to do so. Held, in an action on the note, that the jury would be justified in finding a waiver by the indorser of demand and notice.</p> <p>In an action by the payee against the maker and the indorser of a promissory note, it appeared that, after the maturity of the note, the indorser agreed to give, and the payee agreed to accept, in payment of it, new notes for two thirds of its amount, and cash for the other third ; that the indorser sent to the payee the new notes, but did not send the money; that the payee immediately replied by letter that he did not agree to accept the notes except in connection with the money, and should expect to receive the money not later than a day named; and that he retained the new notes until the trial, when he tendered them to the defendants. Held, that it was a question for the jury whether the new notes were accepted in part payment of the note in suit.</p>

Cited by 3 later decisions — most recently May 1926

3 state decisions

Relies on Whitton v. Mayo

Good law ✅— No negative treatment on recordhow we know

Decided 1885-01-26

View the full empirical analysis of this case →

By the Court.

¶1There was clearly sufficient evidence to justify the jury in finding a waiver by the defendant Moore of demand and notice.

¶2*449It appeared at the trial, that, after the note in suit matured, the plaintiffs agreed that they would accept in payment of it new notes for two thirds of its amount, and cash for the other third. Moore sent the notes to the plaintiffs, but did not send the money, and the plaintiffs replied, refusing to accept the notes without the money.

¶3If this had been all the evidence, the jury would not have been justified in finding that the note in suit was paid. It also appeared that the plaintiffs retained the new; notes until the trial, when they tendered them to the defendants. The fact that they retained them was not conclusive evidence that they accepted them in part payment of the note in suit; it was properly left to the jury, with the other evidence in the case, to be considered by them upon this question.

¶4If the jury were satisfied that such notes were not received in part payment, it was sufficient if the plaintiffs returned them at the trial. Whitton v. Mayo, 114 Mass. 179.

¶5 Exceptions overruled.

/138/mass/446 · .json · Public domain