
    No. 959
    CRAWFORD v. HUMPHREY
    Ohio Appeals, 9th Dist., Summit Co.
    No. 818.
    Decided May 26, 1925
    147. BILLS AND. NOTES—1. Holder of note must make a presentation to maker before he can hold indorser.
    2.Presentment is only excused by circumstances beyond control of holder.
    Attorneys—Holloway & Chamberlin, for Crawford; Sheek, Lahrmer, Stevens & Hadley for Humphrey; all of Akron.
   PER CURIAM.

Crawford brought an action for a judgment on a promissory note and foreclosure of a mortgage on certain real estate. Humphrey was made a party defendant as he held a second mortgage upon the property but no affirmative relief was asked against him in favor of said plaintiff. After the suit was filed, Humphrey sold the second mortgage and note to one Stouffer, and Stouffer sold said note and mortgage without recourse to the plaintiff before they were due.

As the note became due during the pendency of the foreclosure action, the plaintiff filed a supplemental petition asking for a judgment against the makers, Edward Mirman and wife, but did not ask any relief as against Hum-phreys. Afterwards a decree was entered awarding the plaintiff a judgment on both notes against the makers and ordering a foreclosure and sale of the mortgaged property. At the sale the property did not realize enough to pay the first and second mortgage notes in full.

The plaintiff then filed this action in the Common Pleas to recover from Humphrey upon his endorsement upon said note the deficiency which resulted in the failure of the property bringing enough to pay both notes in full. The evidence disclosed that plaintiff did not present the notes to the makers for payment. The plaintiff claimed that he was excused from doing so because the notes and mortgage which secured it were in litigation and presentment was not necessary until this was entered. The Common Pleas, held for the defendant, whereupon plaintiff prosecuted error. In -affirming the judgment of the lower court, the Court of Appeals held-:

1. Before the holder of a note can hold the endorsers thereon, it is incumbent upon him to make presentment to- the makers in the method required by law give notice of dishonor to the endorsers as required by law.

2. Presentment is excused only when the delay is caused by circumstances beyond the control of the holder and not imputable to his default, misconduct or negligence.  