#### Providence Mining Company v. Glass Brothers Coal Company, et al.

(Decided March 15, 1918.)

Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).

Bills and Notes — Presentment and Demand — Failure to Prove— Effect on Indorsers. — In a suit against the indorsers of a note •which does not fall within any of the exceptions to the rule re- . quiring presentment and demand in order to charge the indorsers, and the time of payment of which had been extended by agreement of the parties, a failure to prove proper presentment and demand at the end of the extension is fatal to a recovery against the indorsers whore there is neither pleading nor proof of a waiver of presentment and demand.

R. W. COLE and GEORGE A. CHRISMAN for appellant.

"WALTER LAPP for appellees

Opinion of tub Court by

William Rogers Clay, Commissioner —

Affirming.

On August 18, 1915, Schwind Bros. Coal Company, a corporation, executed and delivered to Glass Bros. Coal Company, another corporation, its promisory note for $500.45, bearing 6 per cent, interest and payable sixty days after date at the Southern National Bank, Louisville, Ky. Before maturity the note was indorsed by the Glass Bros. Coal Company by its secretary, C. D. Glass, and by C. D. Glass individually, and delivered to the Providence Mining Company, another corporation, in payment for coal furnished by the latter company .to the Glass Bros. Coal Company.

*823This suit was brought by the Providence Mining Company against Schwind Bros. Coal Company, Glass Bros. Coal Company, and C. D. Glass, to recover on the note. A default judgment was taken against Schwind Bros. Coal Company. At the conclusion of plaintiff’s evidence, the court directed a verdict in favor of the Glass Bros. Coal Company and C. D. Glass. Judgment was entered accordingly, and plaintiff appeals.

It was alleged in the petition that when the note, became due on October 18, 1915, plaintiff demanded payment of the Schwind Bros. Coal Company and also of Glass-Bros. Coal Company and C. D. Glass individually, and that payment was refused by both the maker and endorsers, who requested an extension of the note for thirty days, at which time they agreed and promised to pay plaintiff the.full amount thereof. ■ It was also alleged that on November 19, 1915, plaintiff again demanded payment of the maker and endorsers, who refused payment and-requested an extension of the note to December 3,1915, at which time the maker and endorsers agreed and promised to pay said note, and that at the special instance and request of the endorsers, plaintiff accepted from the maker, payment of interest to December 3, 1915, and granted said extension. It was further alleged that when the note became due on December 3, 1915, demand for payment was made upon the maker, Schwind Bros. Coal Company, and the same was refused, whereupon the following day plaintiff gave written notice to Glass Bros. Coal Company and C. D. Glass individually, the indorsers of the note, that the note had not been paid and had been dishonored by the maker.

According to the evidence of Percy D. Berry, plaintiff’s secretary and treasurer, he came to Louisville on October 18, 1915, with the note in question. He did not present it for payment at the Southern National Bank but made demand on Ernest E. Schwind, president of the Schwind Bros. Coal Company, who informed him that he was under the impression that the note was not due until thirty days later and that he had no funds in the bank to meet the note. C. D. Glass was present at the time. After demanding payment of Schwind, Berry turned to Glass'and demanded payment. Glass requested further time, saying that perhaps Schwind would pay the note or that they would get it up one way or another. Berry then told them that he wanted his money and was *824going to sue them. Later on in the day he again saw Glass, who told him that he would have to pay the note as he had indorsed it, but that he hated to be sued; that he was anxious to have Schwind pay the money, and if .Berry would hold the note for thirty days, he was satisfied he would pay part of it if not all of it. Glass then agreed that if Berry would hold the note for thirty days he would guarantee the payment of $100.00 on the note at the end of that time. To this arrangement Berry assented. Subsequently Berry came to Louisville on November 18th. He went to Schwind’s office but Schwind wasn’t there. He got into communication with Glass, who wanted to hold a conference with Schwind to see what Schwind would do. The next day they met and discussed the matter. At that time Glass and Schwind requested an extension of fifteen days with the understanding that Schwind was to pay the interest up to December 3rd, and Glass would use all efforts to get at least $100.00 in money by that time. The interest was then paid, and on December 3rd, Berry again came to Louisville. "While he says he went out to see Schwind for the purpose of making demand, this statement was interrupted by an objection and he never testified that he made any demand on the Schwind Bros. Company, or presented the note for payment at the bank. He did say, however, that on the next day he gave written notice of the dishonor of the note to the indorsers, Glass Bros. Coal Company and C. D. Glass individually.

In our view of the case, we' deem it unnecessary to determine whether the two requests of the indorsers for an extension of the note coupled with their promise to pay a portion thereof, made at the maturity of the note and also at the end of the first extension, constituted an implied waiver of proper presentment and notice of dishonor at those times. It is clear from plaintiff’s evidence that the time of payment was extended to December 3, 1915. There is neither pleading nor proof of any waiver of proper presentment at that time. On the contrary plaintiff pleaded that presentment and demand were made on the maker on that day and that notice of dishonor was given to the indorsers on the following day. It 'does not appear that the.note falls within any of the exceptions to the rule requiring presentment in order to charge the indorsers. In the absence of such a showing presentment was necessary. Whether presentment to the *825maker would have been sufficient under the facts of this case, it is also unnecessary to decide. Plaintiff did not prove presentment either to the maker or at the hank. That being true, plaintiff failed to prove a fact necessary to charge the indorsers, and the trial court did not err in directing a verdict in their favor.

Judgment affirmed.