"(3) If he signs for the accommodation of the payee, he is liable to all parties subsequent to the payee." (§ 114.)

The warranty of an irregular endorser is, as to the parties to whom he is liable, the same as that of any regular endorser.

§ 283. Order in which Endorsers are Liable.

($

In case of non-payment of a negotiable instrument, the holder may proceed against any or all of the endorsers. 144.) As to one another the endorsers are severally and successively liable to all who succeed them, unless otherwise agreed.27 (§ 118.)

§ 284. Liability of Agent and Broker.

An agent or a broker negotiating an instrument without endorsement is held to all the usual warranties, 28 unless he discloses the name of his principal and the fact that he is acting only as an agent. (§ 119.)

§ 285. Joint and Several Liability.

Parties who sign or endorse an instrument jointly must be joined in any proceeding for the collection of its amount and each one is liable only for his proportion of any amount recovered. If the parties sign severally, each is liable for the full amount of the instrument and suit for its payment may be brought against any one of them.

Where parties sign jointly and severally, suit may be brought against one or all at the option of the holder of the instrument. Where two or more persons sign an instrument containing the words “I promise to pay," they are deemed to be jointly and severally liable thereon. (§ 36.) Joint endorsers or joint payees who endorse, are deemed to endorse jointly and severally. (§ 118.)

27 Easterly v. Barber, 66 N. Y. 433 (1876); Kelly v. Burroughs, 102 N. Y. 93 (1886); McCarty v. Roots, 62 U. S. 432 (1858).

28 See $280.

CHAPTER XXVIII.

COLLECTION.*

(1) PRESENTMENT.

§ 286. Necessity and Effect of Presentment.

The primary object of the presentment of a negotiable instrument for payment is to secure immediate payment of the amount due. Presentment is also usually essential to charge the parties secondarily liable, i. e., hold them to their liability for payment of the instrument in case the maker or acceptor, as the case may be, does not pay.

The person primarily liable, i. e., the maker or acceptor, is not relieved from his obligation if a negotiable instrument is not presented for payment at maturity. He may have been able and willing to pay it at its maturity at the place named in the instrument but this, though equivalent to a tender of payment on his part, does not release him in case the instrument is not presented, except that if suit be brought later on the non-presented instrument, he will not be liable for the damages and costs of the action.1

As to the drawer of the instrument and its endorsers, however, failure to present it for payment is ordinarily fatal, leaving them absolutely free from any further obligation on the instrument.2 (§ 130.)

Sectional references in text are to the Negotiable Instruments Law as enacted in the State of New York.

1 Hills v. Place, 48 N. Y. 520 (1872); Parker v. Stroud, 98 N. Y. 379 (1885); Kox v. Nat. Bk., 100 U. S. 713 (1879).

2 But see Com'l Bank of Albany v. Hughes, 17 Wend. 94 (1837); also as to checks, see Chap. XXII, § 224 of present volume.

§ 287. When Presentment is Not Necessary.

There are some exceptions to the rule requiring presentment. If the conditions are such that the drawer has no right to expect or require that the drawee or acceptor will pay the instrument, as where he draws a draft upon some one with whom he has no funds and without expectation of its payment, he is held without presentment. (§ 139.)

Also presentment is not requisite to charge an endorser when the instrument was made or accepted for his accommodation and he has no reason to expect that the instrument will be paid if presented. (§ 140.)

Also presentment may be dispensed with where with the exercise of reasonable diligence it is found impossible, or where the drawee is a fictitious person, or when the parties to the instrument have waived presentment either expressly or by implication. (§ 142.)

Waiver of presentment may be made either before or after maturity of the instrument, and may be either verbal or in writing. Any usage, understanding, act or language calculated to induce the holder to refrain from demand or protest, is also sufficient.4

§ 288. General Requirements of Presentment.

"Presentment for payment to be sufficient must be made: (1) By the holder or by some person authorized to receive payment on his behalf; (2) at a reasonable hour on a business day; (3) at a proper place as herein defined; (4) to the person primarily liable on the instrument, or if he is absent or inaccessible, to any person found at the place where presentment is made." (§ 132.) The instrument must be exhibited to the person from whom payment is demanded and when it is paid must be delivered up to the party paying it. (§ 134.)

3 Smith v. Lownsdale, 6 Ore. 79 (1876).

4 Cady v. Bradshaw, 116 N. Y. 188 (1889); Ross v. Hurd, 71 N. Y. 14 (1877); Moyer & Bros.' Appeal, 87 Pa. 129 (1878).

§ 289. Who May Make Presentment.

Presentment must be made by the holder or some one authorized to receive payment on his behalf. (§ 132.) If the instrument is payable to the order of the payee and is endorsed by him in blank or is payable to bearer, its mere possession, in the absence of suspicious circumstances, is sufficient evidence of the holder's right to present it and to demand payment thereof and unless such party is known to have acquired possession wrongfully, payment to him will always be valid. If, however, the instrument is payable to order and is not endorsed by the payee, its possession alone is not sufficient evidence of the authority of an alleged agent by whom it is presented for payment.7

If the instrument is payable on demand, presentment must be made within a reasonable time after its issue, "except that in case of a bill of exchange, presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof." If the instrument is not payable on demand, presentment must be made on the day it falls due. (§ 131.)

The "reasonable time" within which an instrument payable on demand must be presented will be governed by conditions and is a subject of many diverse decisions, the periods held reasonable ranging from a day or a few days in the case of checks up to months in case of notes and drafts. As stated in the Negotiable Instruments Law (§ 4), in determining what is a reasonable time, "regard is to be had to the nature of the instrument, the usage of trade or business (if any) with respect to such instruments and the facts of the particular case."

Delay in presentment is, however, excusable when it "is

Sussex Bk. v. Baldwin, 17 N. J. L. 487 (1840).

Daniel Neg. Insts., § 574.

7 Doubleday v. Kress, 50 N. Y. 410 (1872).

caused by circumstances beyond the control of the holder and not imputable to his default, misconduct or negligence. When the cause of delay ceases to operate, presentment must be made with reasonable diligence." (§ 141.) Miscarriage in the mail is, for instance, deemed a sufficient excuse for delays and sickness may be."

If the instrument is payable at a bank it must be presented for payment within banking hours, or if the party primarily liable has no funds there for the payment of the instrument, any hour before the bank is closed on the day of maturity is sufficient. (§ 135.) If not payable at a bank the holder may present it at any reasonable hour during the day. If presentment is made at his place of business it must be during the usual business hours, or, if otherwise, while some one is there competent to attend to the matter. 10

§ 291. Place of Presentment.

66

Presentment for payment is made at the proper place, (1) where the place of payment is specified in the instrument and it is there presented; (2) where no place of payment is specified but the address of the person to make payment is given in the instrument and it is there presented; (3) where no place of payment is specified and no address is given and the instrument is presented at the usual place of business or residence of the person to make payment; (4) in any other case if presented to the person to make payment wherever he can be found, or if presented at his last known place of business or residence." (§ 133.)

Presentment during business hours at the place of business of the person to make payment is sufficient to hold endorsers whether such person is there or no and even though the place

8 Windham Bk. v. Norton, 22 Conn. 213 (1852).

Wilson v. Senier, 14 Wis. 411 (1861).

10 Waring v. Betts, 90 Va. 46 (1893).