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Hunt v. Maybee

7 N.Y.3d 266 Court N.Y. English

Delivered by Watson, J.

Contents

Majority

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Hunt et al. v. Maybee.

Headnote

Notarial certificate. — Presentment and Notice of non-payment. — Exception to charge.
A notary’s certificate is not evidence of presentment, unless made personally; it may be proved, however, by the clerk, by whom the presentment was actually made.
A presentment at the place designated by the maker, to one who represents himself to be the party, is primd facie good.
If the residence of the indorser cannot be ascertained, on diligent inquiry, notice of non-payment is dispensed with.
Where a charge is excepted to, generally, an error in one of several particulars, not called to the attention of the judge, will be disregarded, on appeal.
Appeal from the Supreme Court, sitting in the first district, where judgment had been entered upon a verdict in favor of the plaintiff.
This was an action of assumpsit against the defendant, as indorser of two promissory notes, made by Jacob Ferdon, dated at the city of New York, and payable at six months. One of them, bearing date the 30th October 1843, was signed, “ Jacob Ferdon, tailor, 194 Clinton streetthe other, bearing' date the 18th November 1843, was signed, “ Jacob Ferdon.” The defendant’s indorsement was admitted to be genuine; the only question, on the trial, was, whether he had been duly charged.
On the trial, before Kent, J., the plaintiff, for the purpose of charging the defendant, gave in evidence the certificates of a notary public, of notice of non-payment, as follows:
* Ofiv i *“I do hereby certify, that on the 4th day of -I May 1844, a notice of protest of the above-mentioned note was served upon Garret M. Maybee, an
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indorser on the said note, by putting the same in the post-office, directed to him, who, after diligent search and inquiry, could not be found.”
“I do hereby certify, that on the 22d day of May 1844, a notice of protest of the above-mentioned note was served upon a clerk having charge of the office of Garret M. Maybee, the indorser of the above note.”
The plaintiff having rested, the defendant’s counsel moved for a nonsuit, on the grounds:
1. That the service of notice of protest of the first note, through the post-office, was insufficient.
2. That the certificate of the service of the protest of the other note was insufficient, as it did not show that the place where the service was made, was the defendant’s place of business.
The court refused to nonsuit the plaintiff, but permitted him to give further proof, to which the defendant excepted.
The plaintiff then proved by a clerk of the notary, that on the 4th day of May, when the first note became payable, he inquired of the holders, where the indorser was to be found; they told him, they did not know, and directed him to the Mechanics’ and Traders’ Bank, in Grand street; he went there, and inquired of its officers; they were unable to inform him, but referred him to Mr. Briggs, a grocer in Hester street; he then called- on Mr. Briggs, who could not tell him where the indorser resided or did business, nor where he was to he found, and could not give information of any one who could tell; that he had previously looked in the directory, and could not find the indorser’s name there, and being unable to obtain information of his place of business or residence, he put the notice of protest in the New York post-office, directed to *Garret M. Maybee, New ^ York. The witness also testified, that he served *- the notice of protest of the note which became payable on the 22d May 1843, by leaving it, during office-hours,
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at the office kept by the defendant, with a young man in the office, the defendant being absent. Upon cross-examination, he testified, that he did not, of his own knowledge, know the office was defendant’s; that he was informed, defendant's office was near the dry-dock; he went there, saw the defendant’s name on a sign over the door; went in, and inquired of a clerk, if it was defendant’s office, and was told it was, and he, thereupon, left the notice with him.
The plaintiffs also proved, that after the protest' of the first note, the defendant called at their store, saying he came at Ferdon’s request, to indorse for him a new note for the balance due upon it; that a note was drawn for him, which included a further amount owing by Ferdon, the maker, and which he had agreed should be included in the renewal; that the defendant objected to indorsing a new note, to include this additional sum, but offered to indorse one for the balance of the old one, and finally said, he would defer indorsing it, until he could see the maker.
The defendant then proved by the notary, that he did not personally make the demand of payment of the notes, nor give the notices of protest. "Whereupon, the plaintiff proved by the notary’s clerk, that he made the demand of payment. He went to the place designated at the foot of the first note, a tailor’s shop, on which was a sign, with the name of Jacob Ferdon; and there made the demand upon a person who said he was Jacob Ferdon.
The evidence being closed the defendant’s counsel requested the court to charge the jury:
1. That the question was, whether the, notary had legally protested the notes, and that he had not, because a protest, to be good, must show that both demand and notice were made and given by him, personally, and that they could not be delegated to his clerk.
2. That the plaintiffs having elected to have the notes protested by a notary, they must abide by their election, and could not now shift their ground, and show a different notice.
3. That the service of notice through the post- n * ggg office, *between parties living in the same city, was insufficient.
4. That the proof of the service of notice of the protest of the second note lacked certainty, to bring it home to the defendant.
5. That the fact whether these notices reached the defendant, and whether the plaintiff had used due diligence in the service of the notices, were questions for the jury.
6. That the evidence did not show the defendant charged.
The learned judge declined so to charge, but instructed the jury that, upon the evidence, the plaintiffs were entitled to recover; to which the defendant excepted. .
The jury found a verdict in favor of the plaintiffs, for the amount due upon the notes, and judgment having been entered thereon, the defendant took this appeal.
Cutler, for the appellant.
Fowler, for the respondent.

As the circuit judge before whom this cause was tried, did not permit the plaintiffs to recover upon the certificates of the notary, and the notices of protest attached to the same, but compelled them to give further proof, it is not necessary to notice them further than to observe, that they were void, as the presentment was not made by him, but by his clerk. This power cannot be delegated to a third person, as is settled in the case of the Onondaga County Bank v. Bate ( 3 Hill 53 ). But it is not necessary that a notary should be

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employed to make the presentment, or to give the notice of protest; a demand of payment by an agent having a parol authority, or the mere possession of the paper is sufficient. ( 7 Mass. 486 ; 9 Id. 423, 427; Bank of Utica v. Smith, 18 Johns. 240 .) Notice of non-payment may be given by a notary or any person authorized for that purpose. ( 18 Johns. 230 .)

In regard to the first note, the evidence shows, that one A. L. Gomedre, who was a clerk in the office of the notary-public, made the demand of payment mentioned in the certificate of protest. The certificate which was given in evidence, states that on the 3d day of May 1844 (the day the note fell due), the note was presented to the maker for payment, who said that he could not pay the * 07n i sanle- *The witness, on his cross-examination, -* testified, that he did not personally know the maker of the note; that he went to the place designated in pencil at the bottom of the note, and there saw a person who said he was Jacob Ferdon. The note is signed Jacob Ferdon, 194 Clinton street. No objection was made by the defendant, that the demand was not made at 194 Clinton street, that appearing to have been taken for granted by both parties at the trial, but the defendant objected to the reception of the evidence that the person inquired of by the witness said he was Jacob Ferdon. The witness further testified, that the place he went to had a sign up, with that name on it, and it was a tailor’s shop.

This was clearly a good demand of the note. It was made on the day the mote fell due, at the place the maker had designated as his place of business, and of the maker himself, if his answer to the inquiry is to be received as evidence; and to this I see no objection. In inquiries in order to ascertain the identity of the maker, the inquirer has to be guided in his researches by the answer of the individual addressed, and these answers should be received, in the first instance, as a part of the

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res gestae to make out the demand. There is no danger of any imposition being practised upon an indorser, or any hardship to him, consequent upon the adoption of such a rule. He is not a stranger to the maker, and when sued as his indorser, he has but to ascertain from him, whether a demand has been made, and if not, he can produce him as a witness, to show that none has been made. If (as the witness swears) he made the demand of payment specified in the certificate, then he must have had possession of the note at the time, for the certificate specifies “ that the note was presented for payment to the maker thereof.” It also shows a refusal to pay the note. In the absence of any proof to rebut this evidence, it was sufficient, to show a demand of the maker and his refusal to pay.

With regard to the service of notice of protest upon the indorser, it was shown by the evidence of another clerk in the office of the notary, that on the 4th day of May 1844, he looked into the directory of the city, to ascertain the residence of the ^defendant, but A could not find his name there; that he inquired *- ' of the holders of the note, where he was to be found, and was told by them, they did not know, and referred him to the Mechanics’ and Traders’ Bank, in Grand street; that he inquired at the bank, and the officers could not tell him where the defendant resided, or transacted business,, and referred him to one Briggs; that he called on Briggs, and he could not tell the defendant’s residence or place of business, or give any information of anybody that could tell; that being unable to obtain any information on the subject, either as to defendant's abode or place of business, he put a notice of protest of the note in the New York post-office, directed to Garret M. May-bee, New York.

There is an indorsement of the payment of $101.25 on this note, on the 6th day of May 1844. The bookkeeper of the plaintiffs testified, that about the time of

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the date of this payment, the defendant came to the plaintiff’s store to indorse a note for the balance left due after the indorsement, in renewal of this' note; that he showed the defendant the note, with the protest attached to it, and that the defendant offered to indorse a new note for the balance due on the old one, but in consequence of a new note having been drawn up, including $30 or $40 of a bill of goods subsequently purchased by Ferdon, he refused to indorse it. Defendant said he came there, at the request of Ferdon, to indorse a note in renewal of the first.

Was this due notice of the dishonor of the note in question to the defendant? Conceding, that the defendant resided in the city of New York, the notice sent through the post-office was not good. Cayuga County Bank v. Bennett, 5 Hill 236 ; Rawson v. Mack, 2 Id. 587.) It is not contended by the plaintiffs’ counsel, that if a notice of protest was necessary, this would be sufficient, but he insists, that the evidence shows reasonable, though unsuccessful, diligence to ascertain the residence or place of business of the defendant, and that this dispensed with notice. It is well settled, that where the indorser has no place of residence which the reasonable diligence of the holder can enable him to discover, the law dispenses with giving regular notice. (Bank of Utica v. Be nder, 21 Wend. 643 ; Lowry *v. Scott, 24 Id. 358; Chitty on Bills 286.) In this case, the indorser did not, as the maker did, put the number of his residence or place of business to his signature, so -that the person endeavoring to serve notice upon him might know where he might be found. The person who sought to give him notice first looked into the directory, and could not ascertain by that either his place of business or residence, The holders of the note directed him to make inquiries at the bank, which he did, and was equally unsuccessful there, as was he also at Mr. Briggs’s, to whom they referred him, and he says he could not

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find any one who could inform him. Were there no other facts in the case, I think, this was reasonable diligence, and dispensed with giving regular notice to the defendant. But the testimony of the plaintiffs’ bookkeeper shows, that about the 6th of May 1844, two days after the notice was sent through the post-office, he had notice of it, and offered to indorse a new note for the balance due on his note.

In regard to the second note, it is not necessary to repeat what has been said in reference to the demand of payment, as it was made by the same person and in the same manner that the demand of the first note was made. The only question remaining is, was the notice regularly served upon the defendant? The witness swore, that he made inquiries and was informed that defendant’s office was near the dry-dock; that he went there, and found his name on a sign over the door of an office, and inquired of a clerk in it, if it was Garret M. Maybee’s office, and he said it was, and that he left the notice of protest for the defendant with his clerk. That he did not know of his own knowledge that it was defendant’s office. This, uncontradicted, was sufficient service of the notice, and called upon the defendant to show that the place where it was served was not his place of business. There was no dispute about the facts in regard to this or the first note, either as to the question of diligence in ascertaining the residence or place of business of the defendant, or the notice of non-payment to the indorser. In such a- case, the judge was right in treating it as a question of law, and refusing to charge as requested by the defendant. (Bank of * Utica v. Bender, 21 Wend. 643 ; 23 Id. 620; 2 Hill 588 ; 3 Wend. 75 .) [ * 273

If I am wrong as regards the first note, the defendant cannot avail himself, under a general exception made by him, as to the refusal to charge and the charge itself, as his second request in regard to the first note and

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nearly all in reference to the second were clearly wrong.

The first refusal to nonsuit was merely the exercise of the discretion of the court in calling on the plaintiffs for more proof, instead of turning them out of court, and it was right.

The next objection was, as to what the maker said when the note was presented. He merely said he was Ferdon. This was complete proof, for it was part of the res gestes, and besides, the objection is, that it did not prove his identity (which is an objection as to sufficiency, not competency), and the evidence was offered, not to prove identity, but merely as part of the maker’s refusal to pay. There was no error there, except in making the objection.

The remaining objections are, to the refusal to charge and to the charge. The exception is general to both, and unless all is wrong, it is too general to be available.

The first request relates to the notary’s making the protest by deputy, and not personally. It is of no consequence who the protest is by. The certificate of the notary may be stricken out of the case, and then the evidence is by the clerk, that he presented the note for payment and gave notice of non-payment, and that is enough.

The second request, that plaintiffs having elected to protest by notary, cannot protest in any other way, is without any support in authority or principle, that I am aware of.

The third was, as to the service of notice through the post-office. This is founded on the idea of want of due diligence in ascertaining the indorser’s residence. The inquiry was only of the holders and of the persons to whom they referred him. It is insisted the inquiry ought * ova i a^so have been made of the maker. *One -* objection, in this connection, is, that the judge did not submit the question of due diligence to the jury.

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There was no dispute about the facts, and the question was therefore for the court and not the jury. ( 1 Pet. 578 ; 3 Wend. 75 ; 1 Cow. 397 ; 3 Hill 520 .) I am inclined to think, that the judge erred, in ruling that due diligence had been used to ascertain the residence of the indorser, and that inquiry ought to have been made of the maker. But it is unnecessary to decide that point, because the exceptions are so general as to be of no avail. All the ruling was not wrong, and, therefore, the judgment ought to be affirmed.

Judgment affirmed.

Cases cited