
    Henry W. Develing v. Willam J. Ferris.
    Where an indorser of a promissory note is fully indemnified for the indorsement, the indorsee may maintain an action against him, without proof of demand and notice.
    This is a writ of error to the Superior Court of Cincinnati.
    The original action was assumpsit, the declaration containing the common counts. The case was submitted to the court, issue having been joined upon a plea of the general issue.
    Upon hearing the evidence offered by the plaintiff, the court, on motion of defendant, directed a judgment of nonsuit, whereupon the plaintiff tendered a bill of 'exceptions, which was allowed by the court and made part of the record.
    
      The bill of exceptions is as follows:
    
      “ Be it remembered, that on the trial of the cause above men* tioned, at the term of January, in the year 1848, of the court aforesaid, the plaintiff, to maintain the action aforesaid on his part, offered in evidence and proved that defendant admitted the execution of the note herewith filed, marked A, by the maker, and the indorsement thereof by the defendant; and furthermore, that said note was executed and given by Thomas Kille, the maker, to said defendant in consideration in part of the sale by the defendant to said Kille, of a quarter section of land; that by the terms of said sale, the defendant reserved and holds the legal title of said land until payment of the purchase money, and has made no deed therefor; that the said note is the only part of the purchase money unpaid; and furthermore, that said defendant, when called upon for payment of said note, said to plaintiff’s agent that plaintiff ought to collect the note of Kille, but neither admitted nor denied his liability thereon, but admitted that he was fully secured for his liability by said land; and furthermore, that said note was passed by the defendant to the plaintiff for a horse sold and delivered by the plaintiff to the defendant; and that defendant never promised to pay said note absolutely.
    “ And the plaintiff having thereupon rested his case, the de fendant moved the court to direct a nonsuit because there was no proof of demand and notice of non-payment to charge the defendant; to which motion the plaintiff objected, but the court allowed said motion, and directed that judgment of nonsuit be entered against the plaintiff; to which opinion and ruling of the court, and judgment of nonsuit, the plaintiff, by his attorneys, excepted, and prayed that his said exceptions might be allowed, signed and sealed by the court, which is accordingly done.”
    The note referred to and made part of the bill of exceptions, is as follows:
    
      “ $100 Columbia, Nov. 25,1840.
    “ Sixteen months after date, I promise to pay Wm. J. Ferria or order, one hundred dollars for value received.
    “ THOMAS KILLS.”
    Indorsed: “Pav.to Henry W. Develing. W. J. Ferris, Jan’y 18,1841.” ”
    The error assigned is in substance, that the superior court of Cincinnati directed judgment of non-suit after the evidence of plaintiff had,been exhibited, not deeming that evidence sufficient to entitle him to a recovery.
    
      King Anderson, for plaintiff in error.
    The errors assigned by the plaintiff upon this record, resolve themselves into the single question, whether the plaintiff was not excused from proving demand upon the maker and notice to the indorser of non-payment, by showing that the indorser was “ fully secured for his liability by said land.”
    The questions raised in argument by counsel for defendant, are, whether the defendant had any security; if he did, whether it was security as such substantively, or whether it was not mere constructive or presumptive security; and a doubt is suggested whether the security was sufficient.
    So that the indorser is protected, by effects of the maker within his own control, we suppose it is wholly immaterial in what form he holds them. The authorities make the indorser liable, without demand or notice, in all cases where the indemnity is full and adequate, or where he holds an assignment of all the maker’s estate, whether it be adequate or not; and the language of the courts in their various decisions point out the true reason as identical in either case.
    That the' defendant is fully and more than sufficiently secured against his liability by the land which he holds, is not only his own admission, but otherwise quite evident from the facts. That he reserved the land by his own act to secure payment of the note, and still retains it from the vendee purposely to pro« teet himself against his indorsement, seems equally clear. And that the title is reserved for security as such and substantively, may be presumed from the fact that such is the common mode of securing purchase money or notes for land, and preferred aa giving the vendor more advantages than any other form.
    There is another consideration growing out of this peculiar form of security which is entitled to much weight. The defendant holds an indemnity which, in its nature, is available to no one bub himself, this court having held that the assignee of the note is not subrogated to the vendor’s lien for the purchase money. Jackson v. Hallock, 1 Ohio 318. Brush v. Kinsley et al., 14 Ohio 20.
    The defendant, retains the means reserved for securing the note which the plaintiff holds, and by taking up the note, can at once assert a paramount lien which none may dispute. In his hands, and upon his demand, it must be paid out of the land in preference to all intervening claims. But in the plaintiff’3 hands it possesses no such virtue or effect. The defendant will neither convey the land nor pay the note, and thus excludes the plaintiff from all recourse to the land. If in such a case he is permitted to screen himself behind the technical rule which applies to indorsers only in the ordinary course, the plaintiff is cut off from an equity which, under a mortgage, or any other form of security than this, would inure and be enforced in his favor.
    The nature of the transaction is such, therefore, that the defendant not only has full security, but it is in just that form that the plaintiff’s recourse against it can only be worked out in a court of law, through the operation of the well settled and equitable rule that the indorser who is indemnified, has, of right, no claim to notice of demand and non-payment. He is estopped from setting up the legal presumption that he has sustained loss by want of demand and notice, because the case rebuts the mere presumption. Where the reason ceases the rule stops.
    Formerly, the indorser, in order to make' out this defense, must have proved affirmatively some damage resulting from the holder’s laches. Chitty Bills 355; McCoy v. U. S. Bank, 5 Ohio 553. When the rule changed, and the presumption was shifted in favor of the indorser, the legal inference of damage did not become the fixed, unvarying principle for all cases, but a greater or less number of exceptions have prevailed in all commercial countries. The insolvency of the maker, accommodation indorsements, want of funds of the drawer, or their withdrawal, indemnity to indorsers, any and all circumstances, in short, showing that no injury has been sustained, have been held to excuse laches of the holder in reference to demand and notice. ‘ ,
    
      De Berdt v. Atkinson, 2 H. Black. 336, is one of the earliest decisions on this point, as to notes, and it is said to be founded upon several nisi prius decisions of Lord Mansfield at Guildhall. It was assumpsit against defendant as indorser of a note of which the maker was notoriously insolvent. “ It is objected,” said the Chief Justice, “ that the demand was not made in due time. But consider on what- ground an early demand is in general required. It is because if any delay takes place, the effects may be gone out of the hands of the acceptor, and if the holder chooses to wait he does it at his own risk. But apply this to the case of known insolvency; what does it signify to the person who is liable in the second stage, at what time the demand is made on the drawers ?” The verdict against the indorser was affirmed.
    
      Corney v. Da Costa, 1 Esp. 302. The defendant indorsed notes and took effects from the makers, who were insolvent, to the same amount. Buller, J., said notice to indorser wras necessary only where there were effects of the indorsers in the maker’s hands, and he might suffer from the want of -notice-This case was afterwards approved in Sisson v. Tomlinson, cited 18 East 187, and Brown v. Maffey, 15 East 216, and is recognized as law in almost all the subsequent cases on the same points.
    
      Bond v. Farnham, 5 Mass. 170, is the leading case in the United States on this point. The statement of the case shows that the maker of the note having stopped payment, and the defendant having indorsed for him several notes besides the one in suit, he assigned to the defendant, for his security, all his property, which in fact was not sufficient to secure the defendant against other notes he had indorsed exclusive of that in suit — “ upon these facts,” said Chief Justice Parsons, “ we are satisfied that the verdict is right, because, under the circumstances of this case, the defendant had no right to insist on a demand upon the maker. It appears that he knew such a demand must be fruitless, as he had secured all the property the maker had.”
    
      Mead v. Small, 2 Greenleaf 207. Allen executed a note to defendant, and gave defendant a mortgage on real estate as collateral and sufficient security'for the amount. The defendant indorsed over to Cobb, and Cobb over to plaintiff, defendant retaining the mortgage. Chief Justice Mellen remarked, upon the case, that as defendant received and held a mortgage of Allen’s property sufficient to secure payment of the note, and made for that express purpose, these facts presented a stronger case than Bond and Earnham, because there the property assigned was not a sufficient indemnity to the indorser, and he says, “If the indorser has protected himself from eventual loss by his own act in taking security from the maker, such conduct must be considered as a waiver of the legal right to require proof of demand and notice, and we are of opinion that the facts before us clearly show such a waiver in the present case.” The plaintiff was held entitled to recover, although he took the note after the default of notice.
    
      Prentiss v. Danielson, 5 Conn. 175, was against an indorser who, after he had been discharged by the laches of the holder, took security which was only partial. The court held he was not bound, but said: “ In Bond v. Farnham, it was decided, and, in my opinion, correctly, that if the maker of a promissory note, before it becomes due, assigns all his property to his indorser, the latter is considered as waiving demand and notice. So if an indorser receives security to meet a particular in dorsement, he waives a demand and notice in respect of that, but not any other.
    
      Mechanics' Bank v. Griswold, 7 Wend. 165. This was on demurrer. The declaration charged the defendant as indorser of a note, and .averred that he and another person had taken an assignment of all the property and estate of the maker, and that the property exceeded the debts.
    The court in overruling the demurrer said: “ Upon the maxim, that where the reason for the rule of law does not exist, it ought not to be applied, it has been frequently decided that in cases where the non-payment by the maker and failure of notice to the indorser cannot possibly operate to the injury of the indorser, the omission will not discharge him. * * Having anticipated the event and taken into his possession the whole of the estate expressly to meet his responsibilities, the indorser has effectually secured every object which the law presumes would be the consequence of notice of the default of the maker, and which, therefore, it has generally required. He cannot complain of any injury from want of demand and notice. This case has repeatedly been recognized in subsequent decisions. Commercial Bank v. Hughes, 17 Wend. 94; Spencer v. Harvey, 17 Wend. 489; Coddington v. Davis, 3 Denio. 16.
    In Perry v. Green, 4 Harrison N. J. Rep. 61, the court, referring to the preceding cases, say they “ all show that where the indorser takes an assignment of all the estate of maker for the purpose of meeting' his responsibilities, or has received effects into his hands to satisfy the amount of the indorsement, no demand or notice is necessary.”
    
      Barton v. Baker, 1 Serg. & Rawle 334. Defendant indorsed the note to Brown & Co., and shortly before it became due took an assignment of all the estate of one of the makers, but whether equal to the debt does not appear. 'Chief Justice Tilghman says: “ I agree therefore with Bond v. Farnham, where it was held that in such a case the indorser dispenses with notice. Inasmuch, then, as it appears upon the whole of this case that notice of non-payment was not necessary, no injustice has been done by the verdict.”
    
      Martel v. Tureaud, 18 Martin 118, decides that if the indorser of a note is present and a party to the act (mortgage) by reason of which the note was given which he indorses, he-cannot claim the protection of the lex mereatoria as to demand and notice.
    In addition to this line of authorities, the same doctrine is-incidentally recognized in the following cases: Burrows et al. v. Hannegan, 1 McLean 309; Duval v. Farmers’ Bank, 9 Gill & Johns. 47; Hanson v. Napier, 1 Yerger 199; Dunham v. Rice, 5 Yerger 300; Coddington v. Davis, 3 Denio 16.
    The case of McCoy v. U. S. Bank, 5 Ohio 548, 2 Ohio 336, is the only one in which this question has, in any form, come before this court. It does not clearly appear upon what ground the decision was placed, but if the court had power,, upon the case made, to grant a new trial, it amounts to a decision of this case. It is apparent that the case of Bond v. Farnham, under which the supreme court on the circuit had held the complainants liable as indorsers, was acquiesced in- and recognized by the court as law. “ If all is secured,” say the court, “ why give notice to the indorser? He can get no-more.”
    The result of all the decisions is, that where the indorser is-fully indemnified, he cannot insist upon the proof of demand and notice. Where he has got all the maker’s estate, whether suflScient or not, he cannot insist upon the demand and notice. The sole object of the demand and notice is. that he may get indemnity. But if he has it already; or if he has obtained all that could have been secured, why insist upon a nugatory form ?
    The English decisions go so far as to hold that where the indorser has received even partial indemnity, he is answerable to the holder for money had and received. Baker v. Birch, 3 Camp. 107. Story on Bills § 316. The French law, and that of other European commercial countries, holds the indorserwho is partially indemnified, liable pro tanto. Story on Bills, •§ 416; Story on Notes, § 285.
    The authorities distinguish between cases of security taken before and after maturity of the note. In the present case, like that in 2 Greenleaf, the security will be seen to have been ■contemporaneous with the note.
    Whether upon principle or authority then, there was error in the judgment of the court below. There is not a case in the books in which.an indorser, having full indemnity before maturity of the note and default of the holder, has been permitted to insist upon proof of demand and notice. There is an unbroken line of decisions to the contrary, going so far in some cases as to hold the indorser liable even without indemnity, if shown that he has obtained all that the maker had. And upon principle what can be more equitable or feasible than that the indorser, who has always been permitted to avail himself of security taken by the holder, should, in turn, be held quasi trustee of the indemnity which he obtains. In the present case, the weight of authorities and principle is backed by the circumstance that in no other form than this, can the plaintiff avail himself of the security which was taken for the payment of this note. And it would be a hardship that he should be deprived gratuitously of that which fairly belongs to and should follow the debt.
    
      Edward Woodruff, for defendant.
   Hitchcock, G. J.

The original action was by the indor see of a promissory note against the indorser. It does not appear that any demand of payment was made of the maker of the note, and notice of non-payment given to the indorser. If such demand was made, it was probably not made in time to charge the indorser.

The simple question raised by the plaintiff is, whether un der the circumstances of the case, he was not excused from proving demand upon the maker, and notice to the indorser of non-payment.

There is no controversy as to the general rule applicable to cases of this character. The indorsee of a promissory note, if he would charge the indorser, must make use of due diligence to collect the note of the maker. What constitutes due diligence, is well settled by the commercial law, but it is unnecessary to resort to the commercial law to ascertain what is due diligence, that question being settled in this state by statute. By the first section of the act of March 13, 1839, (Swan’s Statutes 588,) “ supplementary to an act making certain instruments of writing negotiable,” it is provided “ that all bonds, notes or bills, made negotiable by the act to which this is supplementary, shall be entitled to three days grace, in the time of payment.” And the second section isas follows: “that the demand of payment from the maker, on the third day of grace, given as aforesaid, and notice of non-payment thereof, to the indorser, within a reasonable time thereafter, shall be adjudged dne diligence,” etc. This statute is not materially, if at all var riant from the rules of the commercial law, and, as I suppose, was enacted in consequence of a disposition manifested by our wants, to restrict the rigid rules of the commercial law as to demand and notice, to paper negotiated at banks, or circulating among men strictly commercial.

To this general rule there are exceptions. In England, if the maker of the note is entirely insolvent, the holder has been excused from making demand of payment, because it is supposed that the case is not within the reason of this rule. That reason is, that an indorser may have opportunity to obtain from the maker an indemnity. And it is said that where the indorser is utterly insolvent, no such indemnity can be procured, therefore the reason of the rule' ceases. There is much force in this course of argument; but in this state it has never, to my knowledge, been held that the insolvency of the maker excuses demand and notice.

In the case before the court, it is claimed that the indorser was fully indemnified against loss by the indorsement, and that therefore he is not within the reason of the rule requiring the use of due diligence; and the position is assumed by the counsel for plaintiff, that where an indorser of a promissory note is-secured, by mortgage or otherwise, the holder of the paper is excused from making demand of payment from the maker, and giving notice of'non-payment.

I am not aware that the question now raised, has ever been-heretofore presented to the Court in Bank; but, so far as my knowledge extends, the court upon the circuit have uniformly held the law to be as insisted upon by plaintiff’s counsel. In truth, the law seems to be thus settled by numerous decisions both English and American. Without referring to English au thorities, the following American cases may be cited as sustain ing this position: Bond v. Farnham, 5 Mass. Rep. 170; Mead v. Small, 2 Greenleaf 207; Mechanics’ Bank v. Griswold, 7 Wend. 165.

Numerous other cases might be referred to, but it is unnecessary. The reason upon which the decision in these eases is-based is, that the indorser, having anticipated the possibility of liability, and having secured himself against loss in consequence of such liability, he would be placed in no better situation by demand and notice. And when the demand and notice could be of no advantage to him, it would seem to be unreasonable to require that such demand should be made and notice given.

It is not contended by defendant’s counsel that the law is not as claimed by the plaintiff; but it is urged that the security in this case is not of that character that would justify the indorser in failing to make use of due diligence. It is true that, in the case under consideration, the indorser did not receive collateral or other security, expressly to indemnify him. against the indorsement. But if he was and is perfectly secure against loss, it is not deemed that the particular form of security would make any difference in the case. The bill of exceptions shows that the defendant sold by contract, to Kille, a quarter section of land; that the note in controversy was for a part of the consideration money; that he retained the title in his own hands until the entire consideration should be paid; that the consideration has been paid with the exception of this one note, and that when called upon for payment of this note, he admitted .that he was fully secured for- his liability by said land.

Under these circumstances, it seems to the court that th6 defendant cannot be relieved from the payment of this note, on the ground that there was no demand and notice. The evidence offered by the plaintiff was sufficient to justify and require a payment in his favor unless rebutted, and the superior court erred in directing a nonsuit, for' which error the judgment is reversed and the cause remanded for further proceedings.  