Opinion
December Term, 1853
Charles Tracy for the appellant.
N. Hill, Jr., for the respondent.
One of the indispensible requisites of the notice to be given to the endorser of the dishonor of a note, is, that it should either expressly, or by just and natural implication, contain in substance a true description of the note, so as to identify it to the mind of the endorser. No particular form of words is necessary to be used for this purpose. The object of the notice is to put the endorser in possession of the material facts on which his own liability is founded, so that he may be enabled to take the necessary measures for his own security or indemnity against those who are liable over to him. ( Story on Prom. Notes, §§ 348, 349.)
A notice which is barely enough to put the endorser upon inquiry is not sufficient. The note should be sufficiently described to enable the party to know what note it is. ( Remer v. Downer, 23 Wend., 626.) The notice must explicitly state what the note is, and must not be calculated in any way to mislead the party to whom it may be given. ( Chitty on Bills, 501, ed. of 1836.) The notice must not misdescribe the instrument so that the defendant may perhaps be led to confound it with some other. ( Byles on Bills, 204.)
In the present case there are four notes of the same date, each for $740, payable to the same person, or order, at the same place, and each payable with interest from date. They are, however, payable at different times; that is to say, one in nine months, one in ten, one in eleven, and one in twelve months from date. It is in the time of payment only that either note is to be distinguished by description from the others. The notes were all dishonored and protested, and the question is, whether the notices of protest contained a sufficient description of the note to which each was intended to apply. If they did they were sufficient, otherwise not. The first notice informed the defendant that a promissory note made by J.L. Carew for $740, with interest, dated April 2d 1849, and endorsed by him, was on the day the same became due, duly protested for nonpayment. Only one note of the four had fallen due at the date of the notice. It spoke of a note which had fallen due, the date and amount of which were correctly described, and must therefore have related and applied to that note and to that only. The notice pointed out with sufficient certainty which of the four notes had then been dishonored, and distinguished it from the three others by reference to the time of its maturity. It was the only mode in fact in which it could be distinguished from the others of the series. It might have been more plainly expressed by stating the time it had to run, or by naming the day when it became due; but it was sufficient that it clearly appeared by the notice that it became due before or on the day the notice bore date. With respect to the note payable at ten months the case stands on different grounds. For the sake of brevity I shall speak of the note which first fell due, as the first of the series, and of that which became due next afterwards as the second, and so on of the two others.
The notice supposed by the plaintiff to apply to the second note, is an exact copy of that which was given upon the dishonor of the first, except in two particulars, to wit, in its date, and in the memorandum which specifies that the interest amounted to $43.60. The notice speaks of the protest of a note which had at the date of the notice become due. It could not therefore be understood to apply either to the third or the fourth note of the series, because neither of those notes had come to maturity. But the description contained in it was applicable by its terms to either one of the two first notes, and as strictly applicable to the one as to the other. There is nothing on the face of the notice which enabled the endorser to know which of the first two notes the notice was intended for. The second notice was dated on the day when the second note became due; but it does not state that the note mentioned in it was the note which became due on that day. It stated only that the note mentioned in it was duly protested on the day when it fell due; and this was true as well in regard to the first as to the second note. The notice therefore did not inform the endorser which of the two notes it applied to. The date of the notice was no part of the description of the dishonored note, and notwithstanding the date of the notice, the description applied as well to the one note as to the other. As to the memorandum at the head of the notice of the interest due on the note the same difficulty exists. The two first notes being for the same amount, of the same date, and both bearing interest from date, the amount of interest due on each, would at the date of the notice be precisely the same. The endorser therefore could not have made out from that memorandum which of the two notes the notice was intended to apply to. So that any fact and circumstance contained in the second notice is applicable to the first note, and would have been perfectly true, if the second note had never been presented for payment or if it had been regularly paid at maturity. The second notice was in everything except its date a duplicate of the first, and if the first notice was applicable to the first note, the second is equally so.
But it is said that the defendant could not have been misled by the defect in the notice, because it bore date on the day when the second note became due, and he had a month previously received notice of the dishonor of the first note; and that knowing when the second note fell due he must therefore have understood the second notice to refer to the second note. This is undoubtedly the strongest view of the case in favor of the plaintiff. But it is not strong enough to sustain his demand without violating a settled and salutary principle of law. "The description of the note should be sufficiently definite to enable the endorser to know to what one in particular the notice applies; for an endorser may have endorsed many notes of very different dates, sums and times of payment, and payable to different persons, so that he may be ignorant, unless the description in the notice is special, to which it properly applies or which it designates." ( Story on Prom. Notes, § 349.) In the present case the defendant endorsed four notes which were alike in all respects, excepting in regard to the time of payment; and yet the notices omitted to describe them with reference to that important particular, by which only they could be distinguished one from the other.
In determining whether the description of the note or bill is sufficient, the circumstances of the case and the defendant's knowledge of those circumstances may be taken into consideration; and therefore where the notice to the drawer of a bill of exchange, was that his draft on A.B. was dishonored, the notice was adjudged to be sufficient until it was shown that there was another bill drawn by the defendant on A.B. for which the one in question might be mistaken. But PARK, Baron, said: "If there was another bill answering the same description, then the notice would have been uncertain." The present is precisely the case supposed by Baron PARK. (7 Mees. Wels., 437.)
There are several other cases in which an imperfect or erroneous description of a note or bill has been held sufficient on the same ground, that the party could not be misled or mistaken in regard to the meaning of the notice and the identity of the bill, because there was only one instrument of the kind to which the notice could possibly relate. But all these cases show that where there are more than one the the notice is bad for uncertainty. ( Mills v. Bank of U.S., 11 Wheat., 436; Stockman v. Parr, 11 Mees. Wels., 809; Cayuga Bank v. Warden, 1 Comst., 415; Bank of Alexandria v. Swann, 9 Peters, 33.)
The second notice was insufficient to charge the defendant as endorser of the second note for the reasons above given; and the third and fourth notices were also insufficient for the same reasons.
In cases like the present, where there are several notes, it is the notary's duty to describe the protested note by stating the circumstance which distinguishes that note from the others. For example, if there be several notes agreeing in date and amount, but differing in regard to the time of payment, the notice should state when the protested note became due; or if they agree in date and time of maturity but differ in amount, the amount of the protested note should be stated. If they agree in amount and time of maturity but differ in date, the date of the protested note should be stated. In the present case the date and amount (which are alike in all the notes) are stated, but the time when the notes fell due (in which they differed) is not stated. Nor does the notice in either case state when the protest mentioned in it was made, except by reference to the time when the note became due, and that time is not specified.
The defendant endorsed the notes for the accommodation of the maker. This appears from the fact that the notes came from the possession of the maker and not of the endorser, and were first negotiated in New-York, and apparently for the benefit of Carew, the maker. So long as they remained in Carew's hands there was no liability on the part of the endorser. The endorser's contract, therefore, must be regarded as having been made in New-York where the notes were delivered to Ryckman and the endorsement first became effective. The law of Michigan has, therefore, no application to the case. The contract having been made in New-York, the law of New-York governs the case with respect to the sufficiency of the notice.
Notice that a note was on the day when it became due duly protested for non-payment, is sufficient to charge the endorser if it be good in other respects. Such notice implies that the note described in it was presented for payment and dishonored. ( Coddington v. Davis, 1 Comst., 190.)
MASON and TAGGART, Js., dissented from the foregoing opinion.
MORSE, J., being related to one of the parties, gave no opinion.
All the other judges concurring,
Judgment reversed and new trial ordered.