persons do not sign, that those signing shall not be held. State Bank of Utah v. Burton-Gardner Co., - U. —; 48 P. 402. Any agreement between the directors of a defendant corporation with respect to the contract of guaranty of which plaintiff was not clearly notified, could not bind it. Id. Where the directors of a corporation mutually agreed to sign the corporation's note, but the note was delivered without the signatures of all of such directors, the law will presume the due execution and delivery of the note, and that the payee waived the guaranty of such directors as did not sign; and the signers will be held unless the payee had actual notice that those signing did so with the condition that none of the directors should be bound unless all should sign. Id. If the guaranty is made at the request of the guarantee, its delivery to the guarantee completes the contract. The same result follows where the agreement to accept is contemporaneous with the guaranty and constitutes its consideration. Notice of acceptance is not necessary where the guaranty is expressed to be in consideration of one dollar, the receipt of which is acknowledged. Wells, Fargo & Co. v. Davis, 2 U. 411. Affirmed 104 U. S. 159. A guaranty that provides for the payment of any "overdrafts" of the principal debtor must be construed like other commercial paper, with reference to the usages of trade and business, and the meaning of the word "overdraft" as understood and accepted by banks and business men must be fairly presumed to have been the understanding of the parties to the guaranty. Id. Where the guaranty declares that the guarantor thereby guaranties unto the guarantee unconditionally at all times advances, etc., to a third person, notice of demand of payment and of the default of the debtor is waived, as well as notice of the amount of the advances when made, when either or both would otherwise be required; but a failure or delay in giving such notices, if required, is no defense to an action upon a guaranty, unless where loss or damage has thereby accrued to the guarantor, and then only to the extent of the loss. Id. Where a canal company gave its note to a bank guaranteed by two of its officers, who were also officers of the banking corporation, which note was subsequently replaced by a second note and collateral security, which second note, five days after its execution, was guaranteed without consideration by said officers; held, that such guaranty is not binding, having been without consideration. Armstrong v. Cache Valley Land and Canal Co., - U.; 48 P. 690. When the guaranty of a third person is written on the same paper as the promissory note prior to its delivery, and is a condition of acceptance, such guaranty is supported by the consideration of the note, and need not express a consideration. Gagan v. Stevens, 4 U. 348; 6 P. 706. 1569. Signature on back of instrument. One who agrees to indorse a negotiable instrument is bound to write his signature upon the back of the instrument, if there is sufficient space thereon for that purpose. [C. L. § 2857. Cal. Civ. C. 3109. 1570. Signature on annexed paper. When there is not room for a signature upon the back of a negotiable instrument, a signature equivalent to an indorsement thereof may be made upon a paper annexed thereto. [C. L. § 2858. Cal. Civ. C. 3110. 1571. Two kinds. An indorsement may be general or special. [C. L. $ 2859. Cal. Civ. C. 3111. 1572. General. A general indorsement is one by which no indorsee is named. [C. L. § 2860. Cal. Civ. C. 3112. 1573. Special. A special indorsement specifies the indorsee. [C. L. § 2861. Cal. Civ. C. 3113. 1574. General, effect of. A negotiable instrument bearing a general indorsement cannot be afterwards specially indorsed; but any lawful holder may turn a general indorsement into a special one, by writing above it a direction for payment to a particular person. [C. L. § 2862. Cal. Civ. C. 3114. 1575. Special indorsement may destroy negotiability. A special indorsement may, by express words for that purpose, but not otherwise, be so made as to render the instrument not negotiable. [C. L. § 2863. Cal. Civ. C. 3115. 1576. Warranty of unqualified indorsement. Every indorser of a negotiable instrument, unless his indorsement is qualified, warrants to every subsequent holder thereof, who is not liable thereon to him: 1. That it is in all respects what it purports to be. 2. That he has a good title to it. That the signatures of all prior parties are binding upon them. 4. That if the instrument is dishonored, the indorser will, upon notice chapt 83. 1899 Repealed Repealed thereof duly given to him, or without notice where it is excused by law, pay the same with interest, unless exonerated under the provisions of sections sixteenhundred and twenty-three, sixteen hundred and sixty-one, or sixteen hundred and sixty-four. [C. L. § 2864. Cal. Civ. C. 3116. 1577. Indorsement before delivery. One who indorses a negotiable instrument before it is delivered to the payee, is liable to the payee thereon as an indorser. [C. L. § 2865. Cal. Civ. C. 23117. 1578. Indorsement without recourse. An indorser may qualify his indorsement with the words, "without recourse," or equivalent words; and upon such indorsement, he is responsible only to the same extent as in the case of a transfer without indorsement. [C. L. § 2865. Cal. Civ. C. 3118. 1579. Id. Except as otherwise prescribed by the last section, an indorsement without recourse has the same effect as any other indorsement. § 2867. Cal. Civ. C. 3119. [C. L. 1580. Indorsee's rights against prior parties. An indorsee of a negotiable instrument has the same rights against every prior party thereto that he would have had if the contract had been made directly between them in the first instance. [C. L. § 2868. Cal. Civ. C. 3120. The indorsee of a forged bill of exchange, on its dishonor, may maintain an action against his in dorsers for a recovery of the consideration, which has failed, without proof of demand and notice. Hamer v. Brainerd, 7 U. 245; 26 P. 299. 1581. Effect of want of consideration. The want of a consideration for the undertaking of a maker, acceptor, or indorser of a negotiable instrument does not exonerate him from liability thereon to an indorsee in good faith for a consideration. [C. L. § 2869. Cal. Civ. C. 3122. Signature presumed made for a valuable consideration, etc., 1567. 1582. Indorsee in due course, who is. An indorsee in due course is one who, in good faith, in the ordinary course of business, and for value, before its apparent maturity or presumptive dishonor, and without knowledge of its actual dishonor, acquires a negotiable instrument, duly indorsed to him, or indorsed generally, or payable to the bearer. [C. L. § 2870. Cal. Civ. C. 23123. 1583. Id. Title of. An indorsee of a negotiable instrument, in due course, acquires an absolute title thereto, so that it is valid in his hands, notwithstanding any provision of law making it generally void or voidable, and notwithstanding any defect in the title of the person from whom he acquired it. [C. L. § 2871. Cal. Civ. C. 23124. 1584. Instruments left partly blank. Effect on parties. One who makes himself a party to an instrument intended to be negotiable, but which is left partly in blank for the purpose of filling afterwards, is liable upon the instrument to an indorsee thereof in due course, in whatever manner and at whatever time it may be filled, so long as it remains negotiable in form. § 2872. Cal. Civ. C. 3125. [C. L. CHAPTER 4. PRESENTMENT FOR PAYMENT. 1585. When demand and offer unnecessary. It is not necessary to make a demand of payment upon the principal debtor in a negotiable instrument in order to charge him, but if the instrument is by its terms payable at a specified place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to an offer of payment upon his part. [C. L. § 2873. Cal. Civ. C. 3130. Presentment of bill of exchange, ?? 1636–1639. 1586. Presentment, how made. Presentment of a negotiable instrument for payment, when necessary, must be made as follows, as nearly as by reasonable diligence it is practicable: 1. The instrument must be presented by the holder. 2. The instrument must be presented to the principal debtor, if he can be found at the place where presentment should be made, and if not, then it must be presented to some other person having charge thereof or employed therein, if one can be found there. 3. An instrument which specifies a place for its payment must be presented there, and if the place specified includes more than one house, then at the place of residence or business of the principal debtor if it can be found therein. 4. An instrument which does not specify a place for its payment must be presented at the place of residence or business of the principal debtor, or wherever he may be found, at the option of the presentor. 5. The instrument must be presented upon the day of its maturity, or, if it be payable on demand, it may be presented upon any day; it must be presented within reasonable hours, and if it be payable at a banking house, within the usual banking hours of the vicinity, but, by the consent of the person to whom it should be presented, it may be presented at any hour of the day. 6. If the principal debtor have no place of business, or if his place of business or residence cannot, with reasonable diligence, be ascertained, presentment for payment is excused. Cal. Civ. C. 3131. [C. L. § 2874. Similar provision to sub. 4, 1563. Presentment of promissory note payable on demand or at sight without interest, ? 1661. Where a promissory note is made payable at a certain place, the maker, in order to avoid costs and 1587. Maturity when payable at particular time. The apparent maturity of a negotiable instrument payable at a particular time, is the day on which by its terms it becomes due, or, when that is a holiday, the next preceding business day, except when such preceding day is also a holiday; in the latter event such instrument shall become due on the next succeeding business day. [C. L. § 2875. Cal. Civ. C. 23132. 1588. Presumptive dishonor of bill payable after sight. A bill of exchange, payable at a certain time after sight, which is not accepted within ten days after its date, in addition to the time which would suffice, with ordinary diligence, to forward it for acceptance, is presumed to have been dishonored. [C. L. § 2876. Cal. Civ. C. 3133. 1589. Apparent maturity of bill payable at sight. The apparent maturity of a bill of exchange, payable at sight or on demand, is, first, if it bears interest, one year after its date; or, second, if it does not bear interest, ten days bee chapt 83. 1899 Repealed Su Chart 83.1899 Repealed after its date, in addition to the time which would suffice, with ordinary diligence, to forward it for acceptance. [C. L. § 2877. Cal. Civ. C. 3134. 1590. Apparent maturity of note payable at sight. The apparent maturity of a promissory note, payable at sight or on demand is, first, if it bears interest, one year after its date; or, second, if it does not bear interest, six months after its date. [C. L. § 2878. Cal. Civ. C. 3135. 1591. Id. Time added. When a promissory note is payable at a certain time after sight or demand, such time is to be added to the periods mentioned in the preceding section. [C. L. § 2879. Cal. Civ. C. 23136. 1592. Condition concurrent to payment. A party to a negotiable instrument may require, as a condition concurrent to its payment by him, first, that the instrument be surrendered to him, unless it is lost or destroyed, or the holder has other claims upon it; or, second, if the holder has a right to retain the instrument and does retain it, then that a receipt for the amount paid or an exoneration of the party paying be written thereon; or, third, if the instrument is lost or destroyed, then that the holder give to him a bond, executed by himself and two sufficient sureties, to indemnify him against any lawful claim thereon. [C. L. § 2880. Cal. Civ. C. 3137. CHAPTER 5. DISHONOR. 1593. When instrument dishonored. A negotiable instrument is dishonored when it is either not paid or not accepted, according to its tenor, on presentment for that purpose, or without presentment where that is excused. [C. L. § 2881. Cal. Civ. C. 3141. Dishonor of bill of exchange, ? 1625. 1594. Notice, by whom given. Notice of the dishonor of a negotiable instrument may be given: 1. By a holder thereof; or, 2. By any party to the instrument who might be compelled to pay it to the holder, and who would, upon taking it up, have a right to reimbursement from the party to whom the notice is given. [C. L. § 2882. Cal. Civ. C. 3142. 1595. Notice, form of. A notice of dishonor may be given in any form which describes the instrument with reasonable certainty, and substantially informs the party receiving it that the instrument has been dishonored. [C. L. $2883. Cal. Civ. C. 3143. 1. 1596. Notice, how served. A notice of dishonor may be given: By delivering it to the party to be charged, personally, at any place. 2. By delivering it to some person of discretion at the place of residence or business of such party apparently acting for him; or, 3. By properly folding the notice, directing it to the party to be charged, at his place of residence, according to the best information that the person giving the notice can obtain, depositing it in the postoffice most conveniently accessible from the place where the presentment was made and paying the postage thereon. [C. L. § 2884. Cal. Civ. C. 23144. 1597. Notice, after indorser's death. In case of the death of a party to whom the notice of dishonor should otherwise be given, the notice must be given to one of his personal representatives; or, if there are none, then to any member of his family who resided with him at his death; or, if there is none, then it must be mailed to his last place of residence, as prescribed by subdivision three of section fifteen hundred and ninety-six. [C. L. § 2885. Cal. Civ. C. 3145. 1598. Notice, when valid after death. A notice of dishonor sent to a party after his death, but in ignorance thereof, and in good faith, is valid. [C. L. § 2886. Cal. Civ. C. 3146. 1599. Notice, when given, if not by mail. Notice of dishonor, when given by the holder of an instrument or his agent, otherwise than by mail, must be given on the day of dishonor, or on the next business day thereafter. [C. L. $2887. Cal. Civ. C. 3147. 1600. Notice, when given, if by mail. When notice of dishonor is given by mail, it must be deposited in the postoffice in time for the first mail which closes after noon on the first business day succeeding the dishonor, and which leaves the place where the instrument was dishonored for the place to which the notice should be sent. [C. L. § 2888. Cal. Civ. C. 2 3148. 1601. Notice by agent. When the holder of a negotiable instrument, at the time of its dishonor, is a mere agent for the owner, it is sufficient for him to give notice to his principal in the same manner as to an indorser, and his principal may give notice to any other party to be charged, as if he were himself an indorser. And if an agent of the owner employs a sub-agent, it is sufficient for each successive agent or sub-agent to give notice in like manner to his own principal. [C. L. § 2889. Cal. Civ. C. 23149. 1602. Id. To prior parties. Every party to a negotiable instrument, receiving notice of its dishonor, has the like time thereafter to give similar notice to prior parties as the original holder had after its dishonor, but this additional time is available only to the particular party entitled thereto. [C. L. § 2890. Cal. Civ. C. 3150. 1603. Id. Inures to benefit of all. A notice of the dishonor of a negotiable instrument, if valid in favor of the party giving it, inures to the benefit of all other parties thereto whose right to give the like notice has not then been lost. [C. L. § 2891. Cal. Civ. C. 3151. CHAPTER 6. EXCUSE OF PRESENTMENT AND NOTICE. 1604. Notice of dishonor, when excused. Notice of dishonor is excused: first, when the party by whom it should be given cannot, with reasonable diligence, ascertain either the place of residence or business of the party to be charged; or, second, when there is no postoffice communication between the town of the party by whom the notice should be given, and the town in which the place of residence or business of the party to be charged is situated; or, third, when the party to be charged is the same person who dishonors the instrument; Repealed |