Williams & Wilson v. Lewis & Son , 69 Ga. 825 ( 1883 )

Jackson, Chief Justice.

This action was brought by John F. Lewis & Son against Williams & Wilson, drawers; Welch & Bacon, acceptors; said Williams & Wilson, as indorsers, and J. E. Billups, indorser, on a bill of exchange, a copy of which is as follows:

“$144,20. Albany, Ga., April s'th, 1880.

On the fifth December next pay to ourselves or order one hundred and forty-four dollars and twenty cents for a mule furnished me to make my crop. This to be an advance on my mortgage to you of fifth day of April, 1880. Homestead and other exemptions and protest waived.”

Addressed “ to Welch & Bacon, factors, warehouse and Commission merchants, Albany, Ga. Signed Williams & Wilson, accepted by Welch & Bacon, and indorsed by Williams & Wilson and J. E. Billups.

To this suit Williams & Wilson filed a plea to the effect that, at and before the maturity of the draft, they paid to Welch & Bacon the funds to pay up said draft, and the same are in their hands, but they failed, are insolvent, and the funds are a total loss to them ; that plaintiffs failed to demand payment of the acceptors and never gave notice to defendants of non-payment until after the aceptors failed, and thereupon by the failure to demand payment and give notice, they are damaged the amount of the draft, and the drawers and indorsers thereof are discharged.

On motion, this plea was stricken, and Williams & Wilson excepted.

The paper was not negotiable or payable at any char-, tered bank, and no notice of non-payment was necessary to charge these plaintiffs in error, who are drawers and indorsers of this draft, and the failure to give notice does not discharge them. 55 Ga., 618.

It will be observed that the plea puts the damage to plaintiffs in error upon two acts of the indorsee or holder, not only the failure to demand payment of the acceptors, but also the failure to give notice of non-payment. Both are coupled together in the plea. It is “by failure to demand payment and give notice,” that these drawers and indorsers are damaged; not by either neglect, but both. But they were not entitled to notice. They expressly waived protest, which includes a waiver of notice. If they had not expressly waived it, the law waived it for them. It did not require it from the holder to them, either in their character as indorsers or as drawers. 55 Ga., 618, supra.

The plea is to be taken most strongly against the pleader, as he puts his case, it is presumed, «s strongly as he can. Construing this plea in the light of this rule, we see no error in striking it.

Judgment affirmed.