Morgan v. Van Ingen

Headnote

This was an action on the case to recover the amount of a promissory note paid by the plaintiff. The cause was tried at the Rensselaer circuit, in May, 1806, before Mr. Chief Justice Kent. One Marvel Ellis made hjs , f _ i _ note, dated the 5th October, 1796, payable to Woodworth, or order, twelve months after date. Woothvorih indorsed the note to the plaintiff, who indorsed it to Atkinson, * '

a notery on Sot^for^onto siTe notice 40 all the mdors-ers. if he proS'to^ive'no. 4“th® ciOibciSj so as to enable him to recover his “^notice to the second in-^orser, but not to the first, ,* the holder of-terwards recovers the full a* mount of the ser, the notary that promise, indorser,eC°for ve» 'noticf Sto the first indor-

by whom it was held, when it became due* When the note was due, Atkinson delivered it to the. defendant, who is a public notary, and requested him to demand payment °f the note of the maker, and, in case of non-payment, to it, so as to charge the several indorsers. Payment was accordingly demanded by the defendant, and . ° , ^ , was refused. Notice of this refusal was given to the plaintiff but not to Woodworth, thefirst indorser. The plaintiff was sued by Atkinson, and was obliged to pay the whole amount of the note, it appeared in evidence, that the agent of Atkinson told the defendant, when he ma^e the protest for non-payment, to do every thing requisite to charge the indorsers, and he would pay him; the defendant said he had done all that was necessary to charge them. The judge being of opinion that the plaintiff was, not entitled to recover., ordered him to be called, ¿nd a nonsuit was entered.

now moved to set aside the non-suit. He contended that the defendant ought to have given'notice to Woodworth, as well as to the other indor-ser. Having undertaken to do this for a valuable consideration, he must be answerable for his neglect. The promise, though madeto Atkinson, will enurq to the benefit of the plaintiff.^[1] It was decided in the case of Scher~ itierhorn v. Vanderheyden,i in this court, that when one person makes a promise to another, for the benefit of a third person, such third person may maintain an action on the promise.

It is not the duty of a notary to give notice to the indorsers, unless he has promised to do so. But the only question is, can Morgan, the present plaintiff, make Van Ingen liable on such a promise to Atkinson. The defendant undertook to make a demand, and to give notice so as to enable Atkinson to recover his money. He has done so. Atkinson has recovered the full amount of the note. The defendant has fulfilled his promise, and can be no further responsible. When

a subsequent indorser receives notice of the non-payment of a note, he ought to give notice to the prior indorsers if he means to look to him, and not trust to the holder’s giving such notice.^[2]

The defendant undertook to give notice to. all the indorsers, and the plaintiff having an interest in the contract, that he might have recourse-against Woodivorth, ought to be allowed to avail himself of this promise of the defendant.