Hirt v. Vincent

The defendant William E. D. Vincent, husband of appellant, had been dealing with the plaintiffs for some years prior to the giving of the note in suit. When the noté was given, plaintiffs had a mechanic’s lien for $826.99 on certain property in Brooklyn, for goods theretofore sold defendant William E. D. Vincent; the whole amount of the plaintiffs’ claim at that time being $953.58, of which $826.99 was secured by the lien. On the 29th December, 1891, plaintiffs canceled their lien, and took, in payment of the entire claim, $400 in cash, and the note in suit. The note was made by the defendant William E. D. Vincent to the order of the appellant, and by her indorsed to the plaintiffs,1 specifically charging her separate estate with payment, and stating she “had received full value.” It was made payable at the West Side Bank, and matured on the 2d May, 1892. It had been by the plaintiffs deposited in the Eleventh Ward Bank for collection, which bank, on the day of its maturity, presented it at the West Side Bank for payment, and payment was refused. The plaintiffs, however, did not get this note from the Eleventh Ward Bank until the morning of the 4th of May, 1892, when one of them, between 11 and 12 o’clock in the forenoon, called at the house of the appellant, Passie M. Vincent, and delivered a notice of protest to her. The only question we deem it necessary to consider upon this appeal is whether' or not that notice was in due time. The-evidence is clear that the notice of protest was personally handed to the appellant on the 4th of May, in the morning, and that a notice was also mailed to her the same day. The counsel for thé respondents, on the argument, contended that there was evidence showing that the Eleventh Ward Bank had sent notice to plaintiffs, on the day prior to that time, but we have carefully looked through the testimony, and find nothing showing that fact. It is true that