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Rees, Taylor Co. v. Mayflower Diners

Decided: April 27, 1933.

REES, TAYLOR COMPANY, INCORPORATED, PLAINTIFF-RESPONDENT,
v.
THE MAYFLOWER DINERS, INCORPORATED, SAMUEL KULLMAN AND ALFRED PLATON, DEFENDANTS; SAMUEL KULLMAN, APPELLANT



On appeal from the Supreme Court (Mercer county).

For the appellant Samuel Kullman, Green & Green (Ira J. Katchen and Nelson K. Mintz, of counsel).

For the respondent, James J. McGoogan.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. Samuel Kullman (hereinafter called the defendant) endorsed a series or set of ten promissory notes for $100 each, all dated August 15th, 1930, payable to the plaintiff

at the First-Mechanics National Bank of Trenton, the first maturing September 15th, 1930, and the others on the fifteenth of each month thereafter, and all made by The Mayflower Diners, Incorporated. In each of the ten notes was this language: "One of a series of 10 notes, maturing September 15th, and one on the 15th of each month thereafter to and including June 15, 1931. Failure to pay any note when due, all others become due and payable on demand."

This suit was begun on September 29th, 1931, on notes which matured respectively December 15th, 1930, and monthly thereafter, and which were unpaid.

Circuit Court Judge Oliphant, to whom the case had been referred for trial, sitting without a jury, entered judgment against the endorser Kullman alone (the maker and the other endorsers not having been served with process), and he appeals, contending that the judge erred in refusing to nonsuit and to direct a verdict for the defendant.

We think that refusal was not erroneous.

The defendant first contends that plaintiff by its institution of a prior suit on February 20th, 1931, on these notes, after the note maturing December 15th, 1930, was unpaid, accelerated the due date of the notes then remaining unpaid, and by failure at that time or within twenty-four hours thereafter to make presentment and give notice of dishonor of the then remaining unpaid notes, discharged the defendant endorser from all liability.

We think not. The suit which was begun on February 20th, 1931, was dismissed on motion of the defendant on August 11th, 1931, because the complaint did not state a legal cause of action, the notes not having been presented to the bank for payment. Meanwhile, on March 16th, 1931, the notes due March 15th and monthly thereafter, were duly presented for payment and due notice of dishonor was given to the endorsers; and on September 23d, 1931, after the dismissal of the prior ...


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