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Sheldon v. Benham

4 Hill & Den. 129 Court N.Y. English

Delivered by Bronson, J.

Contents

Majority

p. 129
Sheldon, ex’r &c. of Babcock, vs. Benham, impleaded &c.

Headnote

A notary pubhc cannot deli gate his official authority to another. Per Bbonson, J.
The memorandum of a deceased teller of a bank, made in the usual course of his employment, is competent evidence in proving a demand by him on the maker of a note, and notice to the endorsers; and this, whether he attended to the business on the retainer of a notary, or as part of his duty to the bank.
Where the memorandum is abbreviated or eliptical so as not to be intelligible without explanation, an expert, may be called to prove what the words mean.
So where an instrument is written in a foreign language, a translator may be called.
If the difficulty arise from the obscurity of the writing itself, one skilled in deciphering may be called. Semble ; note (b.)
Where the dispute is simply upon what the words of an instrument really are, the question is not for the court) but belongs to the jury. Semble ; see note (b.)
Payment of a note cannot be demanded on the fourth of July, so as to charge the endorser; but if that be the last day of grace, demand should be made on the third. Per Bbonson, J.
Service of notice of protest cannot be made through the mail, where the party giving it and the one to whom it is sent reside in the same village.
Assumpsit, tried at the Yates circuit in November, 1841, before Moseley, C. Judge. The action was against Benham and Charles Hubbard, as endorsers of the following note :— “ Three months after date, for value received, I promise to pay to the order of Charles Hubbard three hundred dollars at the Bank of Geneva. Penn Yan, April 1, 1837. (Signed) W. W. Staats.” Endorsed, a Ch’s Hubbard, George Benham, Moses Hubbard, Jr.” When the note fell due, John A. Coffin was a notary public at Geneva ; and Harman Hendy, a teller in the bank, acted as the clerk of the notary, and this note was noted by Hendy. The notary and clerk were both dead at the time of the trial. A book kept by Hendy contained a memorandum in relation to this note as follows :
« W. W. Staats—Ch’s Hubbard, ) 1 April, 1837,3 P. M.
George Benham, 1 To W. Babcock, Penn Moses Hubbard, ' Yan P. 0., Penn Yan.
Wm. Babcock. $300. 6s.
July 4, 1837, lodged in P. O”
p. 130
On the face of the note was the following entry in the hand writing of Hendy :—“ Noted July 4, ’36. J. A. C., N. P., fees 6s.” The book keeper of the bank testified in relation to these memoranda as follows :—I understand “ 1 April, 1837,” to mean the date of the note, and “July 4, 1837,” to mean the time it was noted; the words “To W. Babcock, Penn Yan P. O., Penn Yan,” mean that notice of the protest of the note had been sent by mail directed to Wm. Babcock at Penn Yan ; the figures “ $300” mean the amount of the note ; the name “ W. W. Staats” indicates the maker, and “ Ch’s Hubbard, George Benham, Moses Hubbard and Wm. Babcock” the endorsers ; “ Noted July 4, ’36, J. A. C., N. P., fees 6s.” means that the note had been protested July 4, 1836, by John A. Coffin, notary public, and that his fees were 75 cents ; the figures “ 36” in “ July 4, ’36,” are evidently a mistake, and should have been July 4, ’37. The witness further stated that the notary was in the habit of allowing Hendy to protest notes in his name, and to notify endorsers; the whole business was conducted by Hendy without the superintendence of the notary. Notices for each of the endorsers in the name of Coffin, the notary, were sent by mail to Babcock, who lived at Penn Yan, and were post marked Geneva, July 5th. The defendant Benham resided at Penn Yan, and on the 6th of July, 1837, Babcock put the notice for Benham, which had been forwarded from Geneva, in the post office at Penn Yan directed to Benham. The defendant Benham objected to receiving the memoranda of the deceased clerk, and also to the explanatory evidence of the book keeper, and the objections were overruled. He moved for a nonsuit on the following grounds : 1. That the note was not regularly protested, that the evidence of demand was insufficient, and that Coffin had no right to delegate his authority as notary public to Hendy ; 2. That leaving the notice in the post office at Penn Yan, there being no evidence that the defendant received it, was insufficient. The motion for a nonsuit was overruled. Further testimony was given, and some other questions raised, after which the cause was submitted to the
p. 131
jury, who found a verdict for the plaintiff. The defendant noW moved for a new trial on a case.
H. Wells, for the defendant.
A. Gardiner, "for the plaintiff.

By the Court,

It is quite clear tnat the notary could not delegate his official authority to a clerk. ( Onondaga Co. Bank v. Bates, 3 Hill, 53 .) But that is not the question. The plaintiff claims nothing on the ground of an official act of the notary. The question is upon demand and notice, and the plaintiff resorts to the memoranda of Hendy, who had died before the trial. He was a teller in the bank as well as clerk to the notary, and it matters not whether he attended to business of this kind on the retainer of the notary, or as a part of his duty to the bank. It is enough that he acted on this occasion in the usual course of his employment, and being dead, the entries which he made at the time were properly received in evidence. The rule for admitting them is not confined to entries made by public officers. (Nichols v. Goldsmith, 7 Wend. 160 ; Welsh v. Barrett, 15 Mass. R. 380 .)[1] Where there is any room for doubt, it is for the jury to say how much the entries prove.

I see no objection to the testimony of the book keeper in relation to these memoranda. He was not called to give a construction, or to declare the legal effect of a written instrument ; but, as a person skilled in such matters, to tell the jury what words these short entries stood for. It is not unlike the case of an instrument written in a foreign tongue, where a translator may be called in to tell the jury how the instrument reads.[2] I think the evidence was properly received.

(a) (a) а) See Brewster v. Eoane, ( 2 Hill, 537 .)

(b) (b) As to the general doctrine on this subject, see Cowen & Hill’s Notes to Phil. Ev. 1418, 1419, and the cases there cited; also Wigram on Extr. Ev. 48, 9, 3d cd.; Gresl. Eq. Ev. 198, 9. Where the difficulty arises from the obscurity of the writing itself—e. g. if it be *132 illegible from lapse of time, accident &c.—one skilled in deciphering may be called; as, for instance, a clerk from the post office. (Gresl. Eq. Ev. 198,9; Cow-en & Hill’s Notes to Phil. Ev. 1419.) Mr. Greenleaf remarks that, in such cases, the question “ is to be determined by the court alone,” (Greenl. Ev. 319,) and for this he cites a nisi prius decision said to have been made by Lord Denman. (Reman v. Haywood, 2 Adol. Ellis, 666, note.) The very point arose in Armstrong v. Burrows, ( 6 Watts’ Rep. 266 .) There the parties, on a trial in the common pleas, differed about the date of a receipt which had been rendered illegible; the one contending that it was dated in 1823, and the other that the date was 1824. The court assumed the exclusive right of determining what the figures were, and refused to put the case to the jury. On this ground error was brought to the supreme court, where the judgment of the common pleas was reversed. Gibson, Ch. J., who delivered the opinion of the supreme court, observed: “ A writing is read before it is expounded, and the ascertainment of the words is finished before the business of exposition begins. If the reading of a judge were not matter of fact, witnesses would not be heard in contradiction of it; and though he is supposed to have peculiar skill in the meaning and construction of language, neither his business nor learning is supposed to give him a superior knowledge of figures or letters. His right to interpret a paper written in Coptic characters, would be the same that it is to interpret an English writing; yet the words would be approached only through a translation. The jury were, therefore, not only legally competent to read the disputed word, but bound to ascertain what it was meant to represent.” (Id. 268.) In Jackson ex dem. Swain and others v. Ransom, ( 18 John. Rep. 107 ,) a similar question was submitted to the jury; and this course accords in principle with several cases decided in the English court of chancery. (Masters v. Masters, 1 P. Williams, 421, 425 ; Norman v. Morrell, 4 Ves. 769, 770; Goblet v. Beechey, 3 Sim. 24, more fully stated in Wigram on Extr. Ev. 185, 3d ed.)

p. 132
As the fourth of July is a public holiday, the demand should have been made on the third. (Ransom v. Mack, 2 Hill, 587 .) But the objection taken at the trial did not go to the day on which the demand was made, but to the manner in which the business was done. If objection had been taken to the day, it may be that the plaintiff would have avoided the difficulty by giving further evidence.

It seems to have been assumed on the trial that Babcock ■ owned the note, and sent it to the bank, where it was made payable, for collection. Notice was sent to Babcock, the last endorser, with notices for the other endorsers ; and if he was not mistaken as to the proper mode of service, he gave notice

p. 133
to the defendant Benham on the same day or the day after he received advices from the bank. Either day was sufficient. (Howard v. Ives, 1 Hill, 263 ; Bank of the United States v. Davis, 2 id. 451.) But as Babcock and the defendant Benham both lived in the same village, I think the service should have been personal, or by leaving the notice at the dwelling house or place of business of the endorser, and that service through the post office was not sufficient. The post office is not a place of deposit for notices to endorsers, except where the notice is to be transmitted by mail to another office. (Ransom, v. Mack, 2 Hill, 587 .) None of our cases have gone further than that.

New trial granted.

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