President of Casco Bank v. Mussey , 19 Me. 20 ( 1841 )

The opinion of the Court was by

Weston C. J.

Had the instrument declared on been an order, drawn by persons duly authorized, in behalf of the second Unitarian' Society in Portland upon their treasurer, a demand on the treasurer must have been made by the holder, before an action could have been maintained against the society. Varner v. Nobleborough, 2 Greenl. 121. But upon this note, the society had assumed affirmatively the obligation to pay, within the time limited. As against them no demand was necessary. It was not a promise to pay at the treasurer’s office, nor that the treasurer should pay. But aside from the effect of the waiver, upon which the plaintiffs rely, a demand of payment was necessary to hold the indorser. The standing committee were specially authorized to charge the society by giving this note as their organ. From this special authority, as well as from their general powers, we are of opinion, that a demand upon them as representing the society in relation to the subject matter, was sufficient. It appears, that the treasurer was without funds, and it devolved upon the standing committee, rather than upon him, to devise ways and means, to meet the obligations, which the society had assumed. And to this end, as well as for other purposes, the standing committee are clothed with authority to call special meetings of the society. St. of 1821 c. 135, § 3.

We regard it as entirely immaterial to the decision of this cause, whether the defendant was or was not connusant of the usages of the Casco Bank. The admission therefore of Chute, who stood upon their books as a stockholder, as a witness to prove this fact, even if interested, affords no sufficient ground for taking off the default. And a demand being duly made, it becomes unnecessary to decide upon the effect and extent of the waiver proved in the case.

Judgment for plaintiffs.