Opinion
September Term, 1863
J.K. Porter, for the appellants.
A.J. Parker, for the respondent.
It was not shown, and the evidence which was offered and excluded would not have proved, that the plaintiff, at the time the note sued on matured, held another note made by Orrin North and indorsed by the defendants. The only other such note which the plaintiff is supposed to have held matured about a month prior to that time. It was not offered to be proved that it had been protested for non-payment, or had not been. The offer was not to show that it was in fact outstanding when the note sued on matured; but only that the defendants did not then know but that it was outstanding. The offer contains an implication that, at the time of the trial, it was known not to have been outstanding when the note sued on became payable. The facts which would have been disclosed, if the evidence offered had been received, would have been these: The plaintiff had formerly held a note corresponding with the one in suit, in the names of the maker and indorsers, and the amount and place of payment, but it became payable and was paid about a month before the note in suit matured. The question is, whether it was the plaintiff's duty to so frame his notice of protest as to exclude the supposition that the former note was the one referred to as dishonored by non-payment. It would be impossible for him to conjecture that any such misapprehension would arise in the minds of the indorsers to whom the notice was sent. They, being parties to such former note, would be supposed to know that it was no longer on foot. If they were misled by confounding it with the former note, it was on account of their ignorance of the fact that such former note had been retired. That, I think, was their misfortune, and not the fault of the plaintiff. The fact that the plaintiff had before held a note of the same parties and amount, which had been paid a month before, would not suggest to them the necessity of any special description of the note which they were causing to be protested.
The notice which was actually given was sufficient to charge the indorsers, unless circumstances existed which would render the information it was designed to give equivocal and uncertain. This was so held, by this court, in Youngs v. Lee, (2 Kern. 551,) where the notice was precisely like the one given in this case. Then, as to the eleven notes mentioned in the last offer, it was not proposed to prove that any of them were really outstanding when the note sued on was protested. They had all become payable before that time, and the only difficulty was that the defendants did not know but that they were outstanding dishonored. The offer presents the same question which was raised in respect to the note above mentioned, except that the plaintiff had not been the holder of, or in any way connected with them. The case is to that extent more favorable to the plaintiff than the one which we have just considered. The observations made respecting that offer are at least equally applicable to the offer respecting the eleven notes. Their former existence did not cast any additional duty upon the plaintiff in giving notice of the dishonor of the note now in question.
The remaining question relates to the three notes mentioned in the first offer of proof made on the trial. It was proposed to show that they were in fact outstanding when the note now in question matured. They each corresponded with this note in the names of the parties and the amount. But they were past due; they were held by other parties, and the plaintiff had no connection with them; and, so far as appears, had no knowledge of their existence. Whether the defendants had been charged as the indorsers upon them is not stated. The defendants' point is, that the notice of protest in the present case was uncertain and insufficient, because the defendants may have mistakenly supposed that it referred to one of these notes, all of which had been for some time past due. The argument derives some countenance from the case of Cook v. Litchfield, (5 Seld. 279.) But I think it is not governed by that case. There the plaintiff held four notes, precisely alike as to parties, date and amount, but they matured in successive months. They were protested as they respectively became payable, and the notices specified the maker's name, the date and amount accurately, but did not, in either instance, mention the time of credit mentioned in them, or the day they became payable; but they stated that they had been protested for non-payment the day they became payable. There was nothing in either of the notices which showed to which of the four notes it referred, unless it might be gathered from their dates, which were the date of the maturity of the respective notes. This court held the notices insufficient, except as to the note which first matured. The case differs from the one before us, in this; The plaintiff there held all the four notes, and he therefore knew that there was a chance for misapprehension when he gave the second and succeeding notices, which each contained a description that would apply precisely as well to any one of the four notes as to any other of them. He was therefore, as the court held, without excuse in not adding some discriminating statement which would enable the indorsers to know to which of the dishonored notes it applied. Here, the bank knowing nothing as to the other dishonored notes mentioned in the offer, could not be expected to frame its notice with any regard to them. If he sent a notice sufficiently descriptive to perfectly identify the note in the mind of one having only the knowledge which he had, I think he was not guilty of laches. It was the misfortune of the defendants, if their dealings of a similar nature with the maker of the notes was so extended that a notice of protest which would ordinarily be sufficient, did not, under these circumstances, suffice to acquaint them of the dishonor of the note held by the plaintiff. A notice may be so defective that we can see that under ordinary or probable circumstances it would not identify any paper. Such was the case of The Home Insurance Co. v. Green, ( 19 N.Y. Rep. 518,) where the space for the maker's name was left blank, and the name was not at all mentioned.
The other questions do not call for any extended remarks. The point as to the presentment for payment, and the refusal, was submitted to the jury, according to the defendants' express request. The instruction which accompanied the submission was right. To require that the person making the presentment should have a prior personal acquaintance with the party in charge of the place of business at which the paper was made payable, would be imposing a condition which would often be difficult to fulfill. The obligation of the maker is to be present, either personally or by some one on his behalf, at the place of payment, prepared to make the payment. If the holder causes the paper to be presented at that place, to the person in charge, it is sufficient, whether there is a personal acquaintance between the agents or not.
We are not referred to any authority to show that the notice of non-payment must be signed manually by the notary. On principle I think it unnecessary, if his name appears at the foot of the notification. It as fully acquaints the indorser of the dishonor of the note as would the manuscript signature of a person whose handwriting he did not know; and it certainly is not expected that the indorser should know the handwriting of the notary.
The judgment must be affirmed.
SELDEN, J. took no part in the decision; and MULLIN, J. did not dissent.
All the other Judges concurring,
Judgment affirmed.