Opinion
September Term, 1863
Geo. C. Greene and John T. Murray, for the appellants.
A.J. Parker, for the respondent.
1. The only objection made to the reading of the note and protest in evidence, (the $1000 note,) to wit, that it was the note of a firm by the name of "Orrin North," instead of an individual of that name, was properly overruled. The complaint described the note as made by Orrin North, and this was true, whether it was the firm or the individual.
2. The offer to prove other outstanding notes of the same amount as the one in suit, with the like maker and indorser, and place of payment as the one in suit, and maturing at various times between the months of February and August inclusive, was properly overruled for several reasons. (1.) The defendants had permitted the note in suit to be read without objection to the protest, and without a motion for a nonsuit, and without stating at any time in the progress of the suit that the object of the proof was to show that the notice of protest was too indefinite and might be applied to some one of the numerous notes thus offered to be proved. Nor was there any request to charge the jury as to the effect of the notice of protest, or any objection made thereto. (2.) If the question of the sufficiency of the notice of protest was sufficiently made at the trial, the offered evidence did not go far enough to raise a question on this subject. There was no offer or proof that any one of these various notes (other than the one in suit) was held by the plaintiff. There was no offer to show that any one of them matured at or about the time of the one in suit. And apparently such was not the fact. There was no offer to show that any one of these various notes, (other than the one in suit,) was ever protested. None of them, therefore, could be confounded with the one in suit.
3. The notice of protest, though much more general than a cautious and prudent notary public should ever give, has been held sufficient within the adjudications of our courts. A similar notice was approved in Youngs v. Lee, (2 Kern. 552.) See also Cayuga Co. Bank v. Warden, (1 Comst. 413.)
The case of Cook v. Litchfield, (5 Seld. 279,) is not in point to sustain this defense. In that case all the notes were held by a single party; and the notices of protest were alike except in date, and apparently referred to a day past, (without specifying it,) as the day when the notes matured.
This notice uses the present tense; saying the note "is protested," apparently referring to the day of the date of the notice as the day when the note was protested, and describes the amount of the note, and the name of the maker, and is addressed to the indorser. Couple this with the facts (which for the purposes of this case we must assume) that no other note of similar amount fell due on that day; that none of the other notes were held by the plaintiff; that none of them were in fact protested, and the inference is irresistible that the indorser could not have been misled.
As the main object of the notice is "to enable the indorser to take measures for his own security," (Edw. on Bills, 289,) it would appear to have been sufficiently subserved by this notice. The principle of the case of Cook v. Litchfield, (5 Seld. 279,) ought not to be extended. The true rule is as stated by Judge DENIO in Home Insurance Co. v. Green, ( 19 N.Y. Rep. 518,) that the notice should reasonably apprise the party of the particular paper on which he is sought to be charged. When the notice contains the particulars specified in this notice, it can never be known that it does not so apprise him, without proof of extrinsic facts. And when these are presented, we are entitled to look at all of them to see whether he could reasonably have been misled, or prevented from taking prompt and diligent measures for his own security. A printed notice was sufficient. ( Cuyler v. Stevens, 4 Wend. 566.)
I think the judgment should be affirmed.
The note on which this suit was brought matured, and was presented for payment, which was refused, on the 17th of August, 1857. The notice of protest sent to the indorser on the same day was in the same form as the one given in evidence in the case between the same parties on the note of $2000. Offers to prove the existence of other notes corresponding in amount and in the names of the parties, maker and indorser, were made and rejected. It was not proposed to show that any note corresponding in amount with the one sued on had ever been held by the plaintiff; but that there were thirteen other notes so corresponding, outstanding in the hands of some parties when this note was protested, all of which were past due. This involves the point lastly discussed in the other case, and nothing is necessary to be added to what is there said.
See the next case, post.
One of the offers embraced the statement that there were twenty-seven other corresponding notes issued on different days in each month, from January to July, inclusive, in 1857; all of which matured in the same month, and in August. It was not offered to be shown that any of these last notes were outstanding when the note sued on was protested. The immateriality of such an offer was shown in the other case.
The note in question was dated on the 15th day of June, 1857; and it was proposed to show that two of the eleven notes first mentioned were dated on the same day. I do not perceive that this circumstance raises a distinction favorable to the defendants. Bearing in mind that the plaintiff had no knowledge of the existence of these two similarly dated notes, it was under no obligation to regulate or vary its notice by the circumstance that there were such notes. One objection to the notice is, that it did not state the date of the note to which it related. Suppose the date had been stated, it would not have enabled the defendants to distinguish it from the two others which bore the same date. If it had stated the time of payment, it might have been different, because it matured subsequently to the time embraced in the offer. But how was the plaintiff to know that the defendants were so situated, as the indorsers of North that such information would have been needed by, or would have been useful to them. It is not pretended that the bank knew that these defendants had ever indorsed another note for $1000 for any person, except the one which it held. The true principle, I think, is that if facts exist which render such a notice as was here given uncertain or equivocal, and the knowledge of these facts is confined to the indorser, or is not brought home to the holder of the paper, the notice is sufficient to charge the indorser.
I am for affirming the judgment.
All the Judges concurring,
Judgment affirmed.