Downer v. Madison County Bank — 6 Hill & Den. 648

Majority

p. 648

Downer vs. The Madison County Bank.

Headnote

A bank, having received from the plaintiff a note for collection, employed a notary to attend to the business, who afterwards returned the note to the bank with a certificate of protest and of notice sent to the endorser; whereupon a suit was commenced against the endorser by the plaintiff, in which the former proved that the notice sent was defective, and the plaintiff failed to recover. He then brought assumpsit against the bank for a breach of the implied undertaking to give due notice; alleging, among other things, that the note was valueless without the responsibility of the endorser. _ Held, that the bank was not liable for the costs and expenses incurred in prosecuting the endorser, but only for the amount of the note with interest.

Assumpsit upon the implied undertaking of the defendants to demand payment and give the necessary notice to charge the endorsers on a promissory note left with them by the plaintiff for collection. The cause was tried before Gridley, C. Judge, at the Oneida circuit in April, 1843. The plaintiff was the owner of a promissory note made by James Young on the 20th of April, 1835, for $560, payable eighteen months from date, to the order of Isaac Whitaker, at the Chemung Canal Bank; the note having been endorsed by Whitaker, and by Aaron Remen Before the note came to maturity, the plaintiff left it with the defen

p. 649

dants for collection, and they sent it to the Chemung Canal Bank where it was payable. Soon after the note fell due, it was returned by the Chemung Canal Bank to the defendants, with a notarial certificate annexed, stating that it had been regularly protested and notice given to the endorsers. By the plaintiff’s direction, the cashier of the defendants then sent the note to an attorney for collection, and the plaintiff brought a suit on it in this court against Remer, the second endorser, who defended on the ground that he had not received notice of protest; and he annexed an affidavit to his plea that no notice had been received. The plaintiff recovered against Remer in this court; (Downer v. Remer, 21 Wend. 10 ;) but, on a writ of error brought by Remer, the judgment was reversed, upon the ground that the note was misdescribed in the notice which had been sent to him. (Remer v. Downer, 23 Wend. 620 , and 25 id. 277. And see 2 Hill, 594 .) On the trial of the present action, it appeared that the maker and first endorser of the note were insolvent, and that Remer was abundantly able to pay if he had been duly charged. The plaintiff claimed to recover the amount of the note with interest—$857. He also claimed to recover the sums paid by him, during "the course of the litigation Avith Remer, for costs and counsel fees in this court and the court of errors, together with the amount he had paid for Remer’s costs on the reversal of the judgment, amounting in the Avhole to $602,36—making a total of $1459,36. The judge decided that the plaintiff Avas entitled to recover the whole sum, and the jury found a verdict accordingly. The defendants now moved for a new trial on a case.

H. Gray, for the defendants.

J. A. Spencer, for the plaintiff.

In consequence of the neglect to give a sufficient notice to Remer, the plaintiff has lost his debt, and that amount, with the interest upon it, constitutes the true measure of damages. That is the loss which has directly resulted to the plaintiff from the breach of the defendant’s con

p. 650

tract, I see no principle upon which the plaintiff can recover the costs and expenses which were incurred in the vain attempt to collect the note from Kemer. If the suit against him had any necessary connection with the breach of the defendants’ undertaking, it was only a remote consequence, for which the defendants are not answerable. The wrong complained of must be the proximate cause of the damage. Such is the general rule, and this case does not fall within any established exception to it. The injury was complete and the right of action perfect the moment the proper time for giving notice had gone by. The plaintiff was not obliged to sue Kemer. He might have brought his action at once against the defendants, and recovered the full amount of his debt. True, the suit against Kemer was brought upon the supposition that he had been duly charged as endorser. But that was the plaintiff’s mistake, and must be his misfortune. The defendants are not answerable for it; or at least, not in this form of action. It is said that the defendants led the plaintiff into the error by returning the note with a notarial certificate annexed, which stated that notice had been given to the endorsers. But the action is based upon the implied 'undertaking of the defendants to give notice; and not upon any false representation by them that notice had been given. Nothing of the kind is mentioned in the declaration. Indeed, it would have been difficult to frame a count partly in assumpsit and partly in case. But it is enough that the action is founded on the contract, and on nothing else. The only immediate or necessary damage which the plaintiff sustained by the breach was the loss of his debt; and the defendants are not answerable for the remote consequences of their default, however injurious they may have been to the plaintiff.

We see no difficulty in the other questions made by the defendants. There must be a new trial unless the plaintiff consents to reduce the verdict to $857—the amount of the note with interest.

Ordered accordingly.

END OF JULY TEEM.

Cases cited

Downer v. Remer 21 Wend. 10 N.Y. Sup. Ct. p. 649
Remer v. Downer 23 Wend. 620 N.Y. p. 649