Majority
p. 121R. and H. Stewart against M. Eden, executrix, and J and M. Eden, executors, of M. Eden, deceased.
Headnote
If a maker of a note cannot be found when it is due, evidence of that is sufficient to support the general averment that the note was presented, and payment refused. If the endorser of a note dated in Now York, have a house there, and also one on York-Island, notice of non-Dayment left at his house in New York is good.[1] If a holder of a note release one of several joint makers, excepting from such liability as he may be under to the endorsers, those endorsers cannot, in an action against them by such holder, set up such release in discharge. If the endorser of a note die before it fall due, and the holder in an action against the executors state that the endorser promised in his lifetime to pay, it is fatal, and on such a count a recovery cannot be had.This was an action by endorsees, against tbe executrix and executors of tbe payee endorser, on a joint promissory note, made in New York, by Waring and Medcalf Eden, one of tbe defendants in the suit.
The declaration was in the common form, stating a demand on the makers, their refusal to pay, notice to the deceased in his lifetime, his liability thereon, and assumption to pay; but nothing special was alleged. To this plane administraverunt, and non assumpserunt were pleaded; on the latter of which issue was joined, and to the former the plaintiffs replied they had not fully administered. The several signatures being admitted, the plaintiffs, to prove the demand on the makers, gave in evidence that the note, was, on the 8tb of November, 1798, the day wben due, presented at tbe store of the makers, but no person being there, the porter who demanded payment went into an upper room, where he was informed that Waring and Eden were out of town, but that a young man opposite was their clerk. The note being then presented to him, he said, instructions to pay it had not been left. The day after this a notice in the usual form was carried to the dwelling-house of Medcalf Eden, the endorser, which was fouild fastened up, and on this the bearer of the notice rolled it up, and put it into the keyhole of the outer door. It was admitted that the deceased,. Medcalf Eden, shortly after the note was made, retired to his country seat, four miles from the city of New York, where he died on the 18th of September, 1798. That the will, under which the defendants acted, was not proved until the 19th day *of December, 1798, before which period the plaintiffs knew not of any will, or who were executors ; and that the defendant Martha had never intermed-dled with the affairs of the deceased, though enough had been left by him, at his country seat, to pay the bill in question, but that it had been sold under executions against the other executors, to satisfy debt due from them in their own rights. It appeared also that the plaintiffs, on the 17th of June, 1801, executed to Henry Waring, one of the makers of the note on which the present action was founded, an instrument in which, after reciting the note, the following discharge was contained:
“In consideration of one dollar, to us paid by Henry Waring, we do hereby absolutely release and discharge him from all claims, suits, and demands which we have against him, on.account of the note of which the above is a copy, excepting always, that he shall be responsible tc the executors and executrix of Medcalf Eden, deceased, and to them only, we guarantying him against any suits to be brought on the same, by any other person or persons, obtaining the note in any way, except from the executor's
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or executrix, and tbis release or discharge shall not be construed to affect our claim in any manner against the said executors and executrix.
• (Signed) “E. & H. Stewaet.”
On the trial, the counsel for the defendants raised the following points:
1. That the proof, as adduced by the plaintiffs, did not support their declaration; because it is in that stated, that at the time the note became due, it was shown and presented to the makers and payment demanded of them; whereas the testimony was, that they were not to be found, and therefore a variance between the fact stated and the evidence given.
2. That the count states notice of non-payment given to the endorser, by reason whereof he became liable to pay, assumed, and refused, which could not be, as the endorser died before the note was due.
8. That the discharge and release to Henry Waring, one of the makers, was an exoneration m law of the endorser, and consequently of his executors.
*4. That notice of non-payment ought to have [*123] been at the country house of the endorser.
5. That as Martha Eden, the executrix, never intermed-dled with the estate of the testator, against her judgment de bonis testaioris only ought to be entered, and she not held responsible in her own right. .
It was agreed, however, that a verdict should be taken for the plaintiffs; but that if the opinion of the court should be for the defendants, upon either the first or second points, a nonsuit to be entered: if for them on the third and fourth points, or either of them, the defendants to have the verdict entered for them; and if, on the testimony as admitted, the court should think there was no evidence to charge the defendant Martha Eden personally, then the judgmentto be de bonis testaioris.
Hiclcer„ for the plaintiff.
On the first point made by the
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defendants, it is sufficient to say, if a maker of a note, 01 drawer of a bill, cannot be found, or has deserted bis country, a demand at his place of residence is sufficient. Kyd, 88, (edit. 1795, p. 138,) who for this cites Malyne. The same position is in Chitty, 99. It may be still urged that the demand is not duly alleged, and for this will be cited Baley, 109, but the decision there has been overruled. In Saunderson v. Judge,[4] 2 H. Bl. 511, it is said by the court, “it is not necessary that a demand should be personal; it is sufficient if it be made at the house of the maker.” Therefore, if it be on a servant, a wife, or a child, it is enough, and the manner need not be stated. On the second objection, though we admit the endorser died before the bill was due, yet as the assumption of an endorser is only a conclusion of law from the facts, it is never proved; it is a mere formal averment. If a drawee be dead, the presentment should be, I confess, to his representatives; and the same reason applies to an endorser. But that is only in case the representative lives at a reasonable distance. Chitty, 71. But if there is no executor, then notice at the house of the deceased is all that can be given. Chitty, 131, 132. As to the third ground taken, there is not any thing better established than that there must be an actual satisfaction of a bill or note by the maker or drawee, to discharge the parties antecedent to the holder. An ineffectual execution against the maker ; nay, Getting him out from execution on a letter of license, is inadequate to work a discharge. Hayling v. Mulhall, 2 Bl. Rep. 1235. Bayley, 87, 88. Chitty, 182, 183, to the same effect. But it will be said we compounded. The only reason why a composition with a maker or drawer releases the endorsers, .is because it takes away the remedy of the holder. Ex parte Smith, 3 Bro.
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Ch. Rep. 1. This argument cannot operate here, for the right of the defendants is expressly saved. It is to be recollected that Waring, the person released by the plaintiffs, was a partner with Medcalf Eden, one of the executors, and if the act of one partner is the act of another, and that of one executor the act of all, then, from the privity of the situation h'e occupied, a consent may be implied on the part both of the makers and defendants. The not presenting at the house in the country, which is fourthly insisted on, must fail, because the endorser was not to be sought for at both his dwelling-houses; for if a presentment at one is bad, a presentment at the other would be equally so, and two bad presentments can never make a good one. On the last point, if the defendant Martha Eden had a good defence, it ought to have been pleaded separately; but as she has joined with the other parties she is concluded. Middleton v. Price, 1 Wils. 17; Esp. N. P. 336; Philips v. Biron, 1 Stra. 509. These, it is true, were actions of trespass, bul the principle is the same.
Woods and' Harison, contra.
The case cited from II Blackstone mentions the declaration to have been in the usual form ; the one now before the court we say is not.so, and for that we adduce a precedent in 1 Went. Plead. 307, referring to Carth.509, where the words “ non fuit inventus" are used, and this is the authority Bayley relies on in page 109. This principle is particularly laid down in Bushton v. Aspinall, Doug. 654, 680, where the court say, that though a declaration may omit an inference of law, when it sets forth premises to warrant that.inference, yet, when it does not state those premises, the court cannot make the legal inference. This reasoning and authority fully establishes the second objection, for the executors could not assume unless applied to. The precedents in Went. Plead, on this very point, show the form that ought to have been adopted, and the manner in which the notice to the defendants should have been expressed. A promise to a tdstator
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*will not be maintained by showing a promise to his executors. Dean v. Crane, 1 Salic. 28. The forms of pleading, therefore, require that the notice to the defendants should have been set forth. The fourth point speaks for itself. The country residence of the endorser was known, and if the law requried the notice to him to be given there, a fortiori, would it in the case of his representatives.- But our principal reliance is on the release.- In Kelloclc v. Robinson, 2 Stra. 745, taking part payment from a maker of a note was held a discharge of the endorser. The exception in the writing executed by the plaintiffs was merely to enable them to sue the defendants. It was a nominal exception, and then, on the principle of English v. Darky,[4] 2 Bos. & Pull. 61, this species of exception will not destroy the effect of the release in exonerating the makers. The same doctrine is found in Evans, on Money Had and Received, 163, 170. Besides, it is a maxim, that where an exception goes to destroy the substance of an instrument, the exception is void, but the instrument stands good. So here, the exception is for the sake of defeating the legal operation of the act done. On the fifth point, the strict rule of practice may, perhaps, be against us; but as it is evident, on the face of the case, that the devastavit was not by Martha Eden, perhaps judgment (if any is to be rendered against the defendants) ought, as to her, to be only de bonis testatoris, for the devastavit of one executor is not the devastavit of another. Toller’s Law of Exec. 342.
Hamilton, in reply.
The notice to the maker must be held good, because every person in his situation is supposed to promise that his note shall be paid at the place where dated, unless the contrary appear on the face of the instrument. I remember a case, where a person not resident in tbis city drew a note, which was protested and recovered od, though no inquiry was made elsewhere. This is the law of France on this subject, and it certainly has all the advantages of convenience. If so, then on his not paying when demanded, the endorser became liable, and it is enough to state the right according to legal operation and effect. Minet v. Oibson, 1 H. Bl. 569 ; Bishop v. Hayward, 4 D. & E. 470. The release, as it is called, is not so ; it is not under seal; it cannot be in any form pleaded as a discharge.[4] Not as an accord and satisfaction. In short, to substantiate it,*chancery must be resorted to. That the exception is destructive of the instrument, may perhaps be urged by Waring, but surely not by Eden. But the instrument is not defeated by the exception; it was a contract in which Waring agreed to remain liable to the defendants,[5] and therefore the exception is in affirmance of the intent of the parties.
delivered the opinion of the court. II the maker, when' a note falls due, cannot be found, nor payment demanded of him personally, should not the declaration state that fact specially, instead of averring, generally, “ that the note was presented and payment refused ?” This is the first question made in this cause. It is agreed, that the plaintiffs might have stated what particular diligence they used, in lieu of alleging, as they have done, that the note was “ presented to the maker, and by him dishonoredbut it has been most usual to pursue the latter course, and no good reason can be assigned for departing from it. Under an averment of the note’s being presented, the party has hitherto been permitted to give evidence of any diligence which is deemed equivalent to
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an actual presentation of it to the maker. Precedents are generally this way, and if in some, the whole matter intended to be insisted on as evidence of a demand be set forth, it only proves that either form is good. In Saunderson and others v. Judge, 2 H. Bl. 510, the declaration stated that “ the note was presented to the maker for payment.’’ No demand, however, had been made of him, for he had absconded, and could not be found. The judge, therefore, nonsuited the plaintiffs, supposing an actual demand necessary. This nonsuit was set aside, although it was contended, as here, that the plaintiffs, having averred that the note was presented to the maker in person, ought to have been held to proof of that fact. The court disregarded this objection, and recognized the principle that due diligence in the holder to obtain payment, without an actual demand, is good evidence to support such averment. It is true, that in Bayley on Bills, p. 110, it is said, “ that if a note be alleged to be presented, and payment refused, evidence cannot be given of the maker’s not being found but this is a decision at nisi jprius, on which it would be capricious to alter a practice of declaring, *vvhich has been pretty uniformly followed, since the introduction into general use of bills of exchange and promissory notes. The case of Starke v. Cheesman, from Carthew, so much relied on by defendants, prove nothing more than that it is sufficient to aver that the drawer of a bill was not found, without stating that inquiry had been made after him, and that such form of declaring is good. This is not disputed.; but it does not follow that no other form will do. My opinion therefore is, that the present averment was sufficiently supported by testimony, that the makers, on inquiry at their store, could not be found; and that payment was therefore demanded of a clerk, who said they were out- of town, and had left no instructions to pay the note. 2. Ought notice of the maker’s default to have been sent to the endorser’s country house ? The note being dated in New-York, the maker and endorser arepre-
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Burned to 'have resided, and contemplated payment, there. It is admitted, indeed, that tbe endorser did reside in tbe city at tbe time of its date, for it is stated, that shortly thereafter be went to bis country seat, shutting up his house in town. We must talce care that, while proper diligence be imposed on the holder of negotiable paper, we do not exact from him every possible exertion that might have been made to affect an endorser with knowledge of its being dishonored. If he has done all that a. diligent and prudent man could naturally and fairly do under like circumstances; if the law has prescribed no certain way of sending a notice in the given case ; if the endorser’s own conduct has rendered it somewhat difficult to determine in what way the notice ought to be given; and especially, if from what has been done, it may reasonably be presumed that notice has reached the parties concerned, we should be satisfied, and not ask for more. Endorsers, therefore, cannot complain, if notices of this nature are permitted to be left at their houses in town notwithstanding their removal into the country during the hot months. It is more reasonable that they leave a person in town to attend to their business, than that the holders of their paper be put to the trouble of finding out to what part of the country they have removed and sending after them. It is also probable, especially when the distance between the two houses is only four miles, as it was here, that some communication "will be kept up between them, and that a letter left at the dwelling in town will not be long in finding its way to the country. I speak now of a temporary residence in the country; for a permament removal from the city might render a different course necessary. Nor was it fatal to direct the notice to the endorser himself; for as it was not known whether he had made a will, nor who is executors were, until long after, it was full as probable that it would reach the parties interested by this address as by any other; some one of the deceased’s family would either open it, or see it safely delivered to an exeeu
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tor. The notice, therefore, was well served, and its address proper. 8. What is to be the effect of the writing given to Warning, one of the makers of this note? The defendants cannot complain of this transaction, nor should they be permitted to derive any benefit from it, unless their remedy against the makers, or either of them, be affected by it. If we understand this paper according to the obvious meaning of the parties, and its own import, (and why should it not be so understood ?) we may give to it every effect it was intended to produce, without impairing any right of the defendants. The plaintiffs were willing to release Waring, but only on condition of his remaining liable to the representatives of the endorser, and to those to whom they might pass the note. This was necessary to secure their own recourse on the executors of Eden’s will. Nor is the exception repugnant to the main object of the release, if it may be so called; for Waring might have set-off against Eden’s estate, and therefore be willing to remain liable to his representatives. This instrument, therefore, is no bar to the present suit. 4. Ás Medcalf Eden died long before the note became due, it is contended that- the evidence not only does not support the promise alleged to have been made by him, on the 8th of November, 1798, which was after his death, but shows that it was impossible he could have made it. Averse from nonsuiting the plaintiffs, and thus turning them round to another action, we have been anxious to overcome this objection, but after the best reflection it appears to us fatal to the present suit. Although, when the holder of a note has done all that is required of him, the law implies an undertaking on the endorser’s part, yet where the condition on which *tkis promise arises happens not until after his death, the assumpsit devolves on his executors, to avoid the absurdity of a dead man’s contracting The assumption, as here laid cannot be made good by relation to the date of the note, or endorsement, for it is not merely'because of his endorsement that Eden was liable. There must first be a default in the
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maker, and certain acts done, or diligence used by, tbe bolder. It is accordingly stated in tbis declaration, tbat by reason of a demand of tbe maker, and non-payment by bim, and notice thereof to Eden, be became liable, and being liable, he promised, in bis lifetime, to pay, &e. but it appears in evidence tbat Eden bad been dead near two months before be is said to have made tbis promise. There can be no necessity for declaring in tbis way, when it would have comported with the truth, and answered as well as to have stated a notice of non-payment to tbe defendants, and an assumpsit by them. The only case in any degree resembling tbis, is tbat of Deane v. Crane, in 6 Mod. 309. An executor bad declared on a promise made to bis testator above six years before the action brought, on non as-sumpsit infra sex annos; it appeared tbat the defendant bad made a promise to the executors, after the testator’s death, but before any action was brought; all tbe judges agreed, on tbe case being referred to them, tbat tbe evidence did not support tbe declaration, but that tbe executor should have declared on a promise made to himself; so neither here does the evidence support the declaration, which should have been on a promise made by the executors. A non-suit must, therefore, be entered in conformity with the agreement of tbe parties. This renders it unnecessary to say what judgment should be rendered against Martha Eden, because, if another action be brought, she can plead separately, and thus avoid her present embarrass ment. Tbe other points have been disposed of to prevent their being brought up again in the next action.
Judgment of nonsuit.