Section 628. INDORSEMENT "WITHOUT RECOURSE." An indorsement may be so qualified that the liability of the indorser will be greatly limited. Thus, if the indorser writes his name on the back of the note, and adds the words, "without recourse," he thus notifies the person to whom he transfers the note that he will not be responsible as an indorser, and cannot be held liable in case the maker does not pay. But there are circumstances under which the indorser "without recourse" will nevertheless be liable. By the act of transferring and delivering the note to another, although indorsed "without recourse," the indorser impliedly warrants that the note is valid, that the signatures of prior parties whose names appear thereon are genuine, that the note has not been paid, and that he himself has practiced no fraud in the transfer. Section 629.-RIGHTS OF INDORSEE IN DUE COURSE OF BUSINESS.-An indorsee in due course of business, who acquires for value a promissory note duly indorsed, before its apparent maturity, and without knowledge of its actual dishonor, gets an absolute title to the note. It is thereafter valid in his hands, notwithstanding any defect in the title of the person from whom he acquired it. It has been said that the law of California cuts off all defenses on the part of the maker of a note, as against a holder in due course of business. Civil Code, Sections 3123, 3124. Section 630.-WHEN NOTE MUST BE PRESENTED FOR PAYMENT.-Many vexatious questions constantly arise about the presentation of a note for payment, and these usually refer to the indorsers. The maker is bound whether the note is presented to him or not, for he agrees to pay it at all events. But the indorser occupies a different position. He agrees to pay if the note is dishonored. The indorser is only a surety. So, before the indorser can be called upon for the money, the holder, whoever he is, must try to collect the money from the maker of the note. The Legislature of California has prescribed by law when a note must be presented for payment. The law provides, that a note payable on demand may be presented to the maker for payment upon any day; but a note made payable at a certain specified time must be presented for payment upon the day it is due. It must be presented within reasonable hours; and if it be payable at a bank, within the usual banking hours of the vicinity, unless the person to whom it should be presented consents to its being presented at any hour of the day. What are reasonable hours, within which the note must be presented, will depend upon circumstances. If the maker has a place of business, it must be presented within the usual business hours of the place or town; if presented at the maker's residence, it may be presented during the whole day until the hours of rest in the evening. Civil Code, Section 3131. Section 631.-BY WHOM NOTE MUST BE PRESENTED FOR PAYMENT.-The holder of the note must present it to the maker. By this is not meant that the holder should go in person and present the note. He may go in person, or he may send his agent or attorney. If the holder is dead, at the time the note is due, then the executor or administrator of his estate can present the note and demand payment. Section 632.-TO WHOM NOTE MUST BE PRESENTED FOR PAYMENT.-The note must be presented to the maker, if he can be found at the place where presentment should be made. If the maker cannot be found there, then it is lawful to present the note to his agent in charge of his place of business or other place specified in the note as the place of payment. It may be presented to a clerk of the maker at his place of business; or to one partner of a firm, if a firm note; or to the administrator or executor of a deceased maker; or to an employee of the maker at the place where the note is to be presented, if one can be found there, and the maker cannot be found. Section 633.-AT WHAT PLACE NOTE MUST BE PRESENTED FOR PAYMENT.-A note which specifies a place for payment must be presented there. It is a common thing for notes to be made payable at a certain bank, and in such case it will not do to present the note anywhere else, and so as to any particular place of payment specified in a note. If a note does not name any particular place for its payment, then it must be presented at the place of residence or the place of business of the maker, or wherever he may be found. It is at the option of the holder, where no place is specified in the note, whether he will present it to the maker at his residence, or his place of business, or in the street, or at any other place which may appear convenient. Section 634.-WHAT WILL EXCUSE PRESENTMENT FOR PAYMENT.-There are some circumstances which under the law of California will excuse presentment for payment. If the maker of the note has no place of business, or if his place of business or residence cannot, with reasonable diligence, be ascertained, then presentment for payment is excused and the indorser is bound. If the maker moves away, after executing the note, and the holder makes diligent inquiry, and cannot learn his residence or place of business when the note becomes due, the failure to present the note to the maker for payment, under such circumstances, will not relieve the indorser from liability. This is upon the principle that the holder has done all he can do, has shown good faith and diligence, and there is no reason why the indorser should be allowed to take advantage of a circumstance over which the holder of the note had no control. Section 635.-WHAT IS REASONABLE DILIGENCE. Reasonable diligence is a question of circumstances. Inevitable accident or overwhelming calamity may prevent the holder of a note from presenting it for payment to the maker on the day it is due, yet if he does present it at the very earliest practicable time thereafter, it will be sufficient. For it may happen that the holder had the intention in good faith to present the note at the proper time, yet all intercourse is stopped between the places where the holder and the maker live, by freshets, or by violent storms, or earthquakes, or other unforeseen conditions of natural objects rendering travel or communication impossible; or the presence of some dread and contagious disease in one or the other neighborhood, such as the yellow fever, or cholera, or smallpox, renders commercial intercourse impossible; or a political revolution may exist in the place where the holder or the maker lives, and by a blockade, or a battle, prevent the holder from presenting the note on the day when it is due; or war may be going on between the country where the maker lives and the country where the holder resides. In all the cases above supposed, if the note is presented within a reasonable time after the prohibitive obstacle is removed, it will be held sufficient under the law. Section 636.-WHEN A NOTE IS DISHONORED.A note is dishonored when it is not paid, on presentment to the maker for that purpose; and it is also dishonored when it is not paid without presentment, when presentment is excused. Civil Code, Section 3141. Section 637.-NOTICE OF DISHONOR.-If the holder wishes to make the indorser pay the note, after vainly attempting to collect it from the maker, he must give the indorser notice of the dishonor of the note. He may give the notice in person, or through his agent. A Notary, attorney, or bank, or other agent for collection, may give the notice as the agent of the holder. If there are several indorsers on a note, and notice of dishonor is given by the holder to the last indorser, he in turn must give notice of the dishonor to the indorser immediately before him, other wise he cannot reimburse himself for the amount he is compelled to pay the holder. Civil Code, Section 3142. Section 638.-HOW NOTICE OF DISHONOR MAY BE GIVEN.-A notice of dishonor may be given by delivering it to the indorser, personally, at any place; or, by delivering it to some person of discretion, at the place of residence or business of the indorser, apparently acting for him; or, by getting the best information obtainable of the place of residence of the indorser, and depositing the notice in the mail directed to the indorser at that place, postage paid. In case of the death of the indorser, the notice must be given to his executor or administrator, or if there is no executor or administrator, then to any member of his family who resided with him at his death, or if he had no family, then it must be mailed to his last place of residence. A notice of dishonor sent to an indorser after his death is nevertheless valid, if the person sending it was ignorant of his death, and could not by ordinary diligence have ascertained the fact. Civil Code, Sections 3144, 3145, 3146. Section 639.-WHEN NOTICE OF DISHONOR MUST BE GIVEN. If the notice of dishonor of a note is not given by mail, then it must be given either on the same day the maker fails to pay it, or on the next business day thereafter. When notice of dishonor is given by mail, it must be deposited in the post-office in time for the first mail which closes after noon of the first business day succeeding the dishonor, and which leaves the place where the note was dishonored for the place to which the notice should be sent. The holder has at least the whole forenoon of the first business day after the dishonor to send off the notice. One of several indorsers, who receives notice of dishonor from the holder of the note, has the same time to give notice to another indorser; that is, he must give notice to a prior indorser either on the same day he receives his |