Bank of Charleston National Banking Ass'n v. Zorn

Citations

• 14 S.C. 444
• 1881 S.C. LEXIS 11

Syllabus

<p>1. A motion, made at the trial aud without notice, to strike out a part of the answer, may be entertained by the Circuit judge, if the defendant does not object to the hearing of the motion.</p> <p>2. In an action by the endorsee of a promissory note against the maker, the Circuit judge properly refused to strike out a defence, which, in substance, was a plea of payment without notice of transfer.</p> <p>3. A witness, to refresh his memory, may refer to an account current furnished him by his factor, if such examination enables him then to testify from his own recollection. The rules stated.</p> <p>4. In charging the jury that if they believed the plaintiff was guilty of laches iu not demanding payment of'the note at the office of W. & D. before their failure, and that plaintiff would have received the money if the note had been presented, and by their failure to do so the defendant lost, his money, the)' should find for defendant, the'Circuit judge did not leave to the jury the legal question of what was laches.</p> <p>5. The maker of a promissory note, which was payable to his factors at their office, placed there funds sufficient to meet the note at maturity, and after-wards, in settlement, was charged with the amount, and a balance in cash was paid to him, but the note was not produced or taken up. After the subsequent failure of the factors, the note was presented by an endorsee, who had received it before due for value. Held, that the maker was not responsible for the payment of the note, by reason of his failure to take up the note at the time of the settlement.</p> <p>6. While it is not necessary, as a prerequisite to action brought, that such endorsee should have demanded payment on or after maturity, at the place designated, yet for any loss which the maker shows to have resulted from the failure to make such presentment and demand, the holder is responsible.</p>