NICOLAS LUNING, Respondent, v. TULLY R. WISE, Appellant, 64 Cal. 410

McKee, J. Action by the indorsee against the indorser upon a promissory note, of which the following is a copy: — “475.00. “ San Francisco, March 24, 1879. “ Thirty days after date, without grace, we promise to pay to the order of T. B. Wise, four hundred and seventy-five dollars, with interest at the rate of one per cent per month from date until paid. Principal and interest payable only in gold coin of the government of the United States, for value received. “ Edward W. Jones, “By his attorney in fact, Thomas H. Holt, “ Thomas H.

Holt.” At its maturity the note was not presented to Jones, one of the joint makers, and upon that fact the indorser makes his contention that he is not bound to pay. The note is not made payable at any particular place; but being dated at San Francisco, the presumption is that the makers resided, or had their place of business there, or at some other place within the State. (Story on Prom.

Notes, 230.) Upon that presumption it ivould be necessary for the holder, in order to charge the indorser to make presentment of the note at maturity to the makers at their respective places of residence or business at the place where it was dated, or elsewhere within the State, if with reasonable diligence their places of residence or of business could be ascertained. (Subds. 1, 2 4, § 3132, Civ. Code.) Holt had his residence or place of business in San Francisco, and to him the note ivas duly presented at maturity, and payment refused.

Yet he had executed the note for his co-defendaut Jones upon a power of attorney which authorized him to execute and deliver the note for Jones, but the power of attorney gave him no authority to pay for Jones; and it is well settled that mere authority to execute a promissory note for another does not include authority to pay the note when it becomes due. Now, it is undoubtedly tr.ue that a presentment to only one of two joint makers of a promissory note is insufficient to charge an indorser, unless some legal excuse be shown for the failure to make presentment to the other. (Blake v. McMillen, 22 Iowa, 358; S.

C. 33 Iowa, 150; Arnold v. Dresser, 8 Allen, 435; Union Bank v. Willis, 8 Met. 504.) The death of one of the joint makers does not constitute an excuse, if presentment may be made to the executor or administrator of his estate. (Hale v. Burr, 12 Mass. 86; Haight v. Kindhart, 1 S. C. 189.) But the circumstance in this case which distinguishes it from those cases is the fact, proved in the case, that at the time of the execution and maturity of the note Jones had no residence or place of business in San Francisco or within the State of California.

He resided in the State of Kentucky, and the question arises, whether that constitutes a legal excuse for the non-pre- ‘ sentment of the note to him at maturity. “It seems,” says Justice Story, in his work on Promissory Notes, “that if the maker of a promissory note resides, or has his domicil, in one State, and actually dates and makes, and delivers a jiromissory note in another State, it will be sufficient for the holder to demand payment thereof at the place where it is dated, if the maker cannot personally, upon reasonable inquiries, be found within the State, and has no known place of business there.” In Ricketts v.

Pendleton, 14 Md. 330, which was an action upon a promissory note dated at-Baltimore, and in which it was admitted as a fact that the makers of the note had not, nor had either of them his or their place of business within the State of Maryland, the Supreme Court of that State held that the fact excused the holder from making demand upon them at Baltimore where the note was made payable. “ The attempt to make demand,” said the court, “ would have been futile.” (See also, Selden v.

Washington, 17 Mo. 379.) And in an action upon a promissory note dated at New Orleans, made by one who resided in the State of Kentucky, it was held by the Supreme Court of Louisiana that the holder of the note was not obliged to go out of Louisiana to make demand. (Hepburn v. Toledano, 5 Mart. (La.) 316.) “If,” say the court, “the maker lives in another country, the indorsees cannot be presumed to know his residence; and all that the law requires of the holder is due diligence at that place where the note is drawn.” (Hepburn v. Toledano, 5 Mart. (La.) 316.) “This,” said Mr.

Justice Sharkey, “must be the rule of law; for it is impossible to send notice to the domicil of a party who has none, and it would be absurd to require a party to prove that he diligently tried to find that which he proves had no existence.” (Tunstall v. Walker, 2 Smedes & M. 638; Moore v. Coffield, 1 Dev. 247; McKee v. Boswell, 33 Mo. 567.)

Section 3131, Civil Code, affirms the rule of these cases. “If,” says the Code, “the principal debtor have no place of business, or if his place of business cannot, with reasonable diligence, be ascertained, presentment for payment is excused.” Error is also assigned that there was no evidence to show that defendant indorsed the note for a consideration. But the presumption was that he had indorsed it for a valuable consideration before its maturity (§§ 3104, 3122, Civ. Code), and he offered no evidence to the contrary. Judgment and order affirmed. Morrison, C. J., Myrioic, J., and McKinstry, J., concurred.