Hyperlawhypertext legal databasebeta Ross v. Bedell 12 N.Y. Super. Ct. 462

← Cases

Ross v. Bedell

12 N.Y. Super. Ct. 462 5 Duer 462 Court N.Y. Super. Ct. English

Contents

Majority

p. 462
Reuben Ross. v. Chester Bedell.

Headnote

Semble, that the question whether the protest of a foreign bill of exchange is properly authenticated depends upon the law of the state where payment was demanded and the protest made.
A sea], stamped upon paper of sufficient tenacity to retain the impression, is a seal within the strictest rules of the common law.
When a certificate of protest is properly authenticated by the seal of the notary, no proof of his signature, or of his authority to act, is required.
When the certificate states that the notary went to the place of business of the acceptor of a bill, to demand its payment, and found the doors closed, it will be intended that he took the bill with him so as to enable him to demand its / payment in the usual and proper form.
The holder of a negotiable bill or note is not bound to prove that he gave value for it, merely because it has been proved, on the part of the defendant, that the bill or note was without consideration as between the immediate parties, i. e., was accommodation paper.
But when it appears that the bill or note was fraudulently negotiated or put into circulation, the plaintiff must prove a valuable consideration to entitle him to recover.
New trial; costs to abide event.
(Before Dueb, Boswobth and Slosson, J.J.)
March, 1856.
This was an action by the plaintiff, as endorsee, against the defendant, as drawer of a bill of exchange. The complaint averred that the bill was drawn by the defendant, ™ the city of New York, on one James Gordon, at the city of Philadelphia, on the 15th of October, 1854, and required Gordon to pay to the order of the defendant, two months after date, the sum. of $1,000, and that the same was-endorsed by the defendant, and delivered to the plaintiff, who purchased the same for a valuable, consideration. That Gordon accepted the bill, which was duly presented to him for payment when it became due; that payment was refused and due notice of such refusal given to the defendant.
The defence in the answer was, that the bill was accepted for the accommodation of the defendant, that it was placed by him in the hands of a third person by whom it was fraudulently put into circulation, and that the plaintiff was not a holder for value. It
p. 463
also denied that the bill had been duly presented for payment to the acceptor.
The cause was tried before Oakley, Ch. J., and a jury, in April, 1855.
The plaintiff, upon the trial, produced the bill, and proved its acceptance by Gordon, and to prove demand and refusal of payment, and notice to defendant, he offered in evidence the following notarial certificate.
The counsel for the defendant objected to the evidence. The objection was overruled, and the counsel excepted.
The certificate, after giving a true copy of the bill, proceeded as follows:—■
Be it known, that on the day of the date hereof, at the request of The Philadelphia Bank, the holder of the original bill of exchange, of which a true copy is above written; I, Edward Hurst, Notary Public for the commonwealth of Pennsylvania, by lawful authority duly commissioned and sworn, residing in the city of Philadelphia during the usual hours of business for such purposes, went repeatedly to the place of business of the acceptor, No. 46 Walnut street, to demand the payment thereof, which was not obtained, said place being closed and' unattended, and no person there to answer about or to pay said bill.
Whereupon 1, the said notary, at the request aforesaid, have protested, and do hereby solemnly protest, against all persons, and every party concerned therein, whether as maker, drawer, drawee, acceptor, payer, endorser, guarantee, surety or otherwise, howsoever against whom it is proper to protest, for all exchange, re-exchange, costs, damages, and interest suffered and to be suffered for want of payment thereof: of which demand and refusal I duly notified the drawer and endorsers.
[L. S.]
Thus done and protested at the city of Philadelphia aforesaid, the fourteenth day of December, 1854.
EDWARD HURST, Notary Public.
The only seal upon the certificate was an impression of a seal upon the paper.
The plaintiff then, after proving the amount due upon the bill, rested.
p. 464
The defendant then proved that the bill had been accepted by Gordon, for his accommodation, and in addition to this proof the following facts were admitted, that the defendant had borrowed of one Smith $500, upon a pledge of the draft, and afterwards one S. B. Pree went to Smith and paid him the loan, acting, as he stated, for the defendant, and as his clerk, and that Smith delivered the bill to him to be returned to the defendant, which he promised to do, and that these facts occurred a few days before the maturity of the bill. The only additional fact proved on the trial, necessary to be mentioned, is that the defendant had given notice to the acceptor not to pay the bill. •
The Chief Justice directed a verdict for the plaintiff for the sutil $1,055.93, subject to the opinion of the court at General Term, upon the facts in evidence, and judgment, in the mean time, to be suspended.
J. R. Pomeroy, for the plaintiff.
We claim that the plaintiff is entitled to judgment upon the verdict. The principal question is, whether the Chief Justice erred in allowing the notary’s certificate to be read in evidence. The seal was sufficient, by the laws of Pennsylvania, and was prima, facie evidence that the notary was duly commissioned. (Long v. Ramsey, 1 Ser. & Raw. 72; Browne v. Philadelphia Bank, 6 id. 482.) Hor even by the law of this state is a seal impressed simply upon paper for that reason invalid. (4 Kent’s Com. 452; 17 Barb. 358 .) The only other question is, whether the facts admitted were sufficient to raise such a presumption that the bill was fraudulently put into circulation, so as to make it incumbent upon the plaintiff to prove that he gave value for it, and we submit, with confidence, that they were wholly insufficient. Finally, we insist that the defendant, having stopped the payment of the bill, is estopped from saying that he was. prejudiced by its non-presentment for payment, if the proof of its presentment is to be deemed insufficient; and neither the drawer nor the endorser of a bill is discharged, when it clearly appears that he could have suffered no injury from the laches of the holder. ( 17 Wend. 94 ; 21 Wend. 375 ; 4 Hill. 263 ; 8 Wend. 168 ; Chitty on Bills, 355.)
D. Marvin, for defendant.
p. 465
The verdict ought to be set aside, and the complaint be dismissed.
There was no legal proof, of a demand of the payment of the bill from the acceptor; the only proof was the notary’s certificate, and this was only authenticated by his signature, which was not proved. By the law of this state, as by the common law, a notary’s certificate is not evidence, unless authenticated by his official seal, and our statute, as to the mode of sealing such a certificate, does not apply to the acts of a foreign notary. ( 5 John. 239 ; 2 Hill, 227 ; 5 Denio, 110 ; 2 Duer, 278 .) The certificate is, moreover, insufficient, on its face. It does not state that the notary had the bill in his possession, or that he took it with him when he made the demand of payment. ( 7 Barb. 143 ; Mason v. Luke, 4 How. U. S. R. 262.) But, supposing the proof of presentment and notice to be sufficient, the evidence clearly shows, that the bill was without consideration, that it was accepted for the sole accommodation of the defendant, and that it was lost, or fraudulently put into circulation. The plaintiff was, therefore, bound to prove, that he gave value for it, and took it without notice of these facts; and, no such proof' having been given, he cannot be entitled to recover. ( 1 Duer, 309 ; 5 Binney, 469; 5 id. 412 ; 13 Mees. & Wel. 73; 3 En. L. &. Eq. R. 379; 4 id. 531; 6 Wend. 615 .)

We think, that the certificate of the notary was properly admitted in evidence, and that, were it excluded, there is still sufficient evidence to entitle the plaintiff, in the first instance, to recover.

It was admitted, upon the argument, that 'the certificate was properly authenticated, according to the laws of Pennsylvania, and we strongly incline to the opinion, that, upon such a question, the law of the state in which payment of the bill is demanded, and the instrument of protest is executed, ought to govern our decision. (Story on Conflict, &c. § 360—on Bills, § 139, § 176; Chitty on Bills, pp. 193-506.) But, supposing this view to be erroneous, we are clearly of opinion, that an actual seal—not mere words or lines, in writing—stamped upon paper, of sufficient tenacity to receive and retain the impression, must be deemed a seal, in the technical sense, and within the strict definition, of the common law; and we are glad to find that the Supreme Court of this district made the same

p. 466
decision, in the case of Curtis v. Leavitt, where bonds of the North American Trust Company were held to be sealed instruments, although bearing upon their face no other seal than an impression, stamped upon the paper alone. (17 Barb. S. C. R. 318.)

The other objections, that were taken, to the admission of the certificate, were also groundless.

When the certificate of protest is properly authenticated, by the seal of the notary, no proof of his signature, or of his authority to act, is necessary, nor, as we believe, has ever been required. (Holliday v. McDougall, 2 Wend. 84 ; Cape Fear Bank v. Stinemitz, 1 Hill, 44 ; Nichols v. Webb, 8 Wheat. 381 ; 2 Green on Ev. p. 153.)

Nor can we say that the certificate is insufficient, on its face, as not showing that the notary had the bill in his possession when he went to demand its payment. When payment is, in fact, demanded, the protest must, undoubtedly, state that the bill was exhibited, when the demand was made; but, when it appears, from the protest, that the accepter was absent, from the place where the demand was properly to be made, and had left no person there, of whom. the demand could be made, it is sufficient to state that the notary went there, for the purpose of demanding payment; and, in these cases, such, we understand, is the usual form of the protest. The law will intend that he meant to make the demand in the proper form, by the exhibition of the bill, and, consequently, that the bill was then in his hands for that purpose. The cases to which we were referred of Mason v. Luke, ( 4 How. 262 ,) and the Bank of Vergennes v. Cameron, ( 7 Barb. 163 ,) are inapplicable, since, in each, there was an actual demand of payment, and the question was, whether it sufficiently appeared, upon the face of the protest, that the bill was exhibited when the demand was made.

But, while we are of opinion that the certificate, in its actual form, was sufficient evidence of a demand and refusal of payment, we are not to be understood as saying, that it was sufficient proof that due notice of the dishonor of the bill was given to the drawer, the defendant; but as this objection was not raised, either on the trial, or on the argument before us, we must regard it as waived. We have certainly no right to make it now a ground of decision.

But, as I have before intimated, had the defendant in this case relied solely on the insufficiency of the proof on the part of the plaintiff, we must still have held that the proof was sufficient to

p. 467
warrant a recovery, even had no evidence whatever been given that payment of the bill had been demanded and refused, and notice of its dishonor been given to the defendant.

The bill, it is not only admitted, but insisted by the counsel for the defendant, was accepted for the sole accommodation of the defendant, who had no funds, nor expectation of funds in the hands of the drawer, either when it was drawn, or when it became due.

In such a case, the law is settled, that the drawer is not a surety, but the primary debtor, and is not discharged, either by the omission to demand acceptance or payment of the bill from the drawer, or to give him, the drawer, notice of its dishonor, when acceptance or payment is refused. He has no right to complain of an omission by which, in judgment of law, he could not have been prejudiced. (Chitty on bills, pp. 356, 362, 469, 490; Story on bills, §§ 278, 280, 327, 367, n. a., and the cases there cited.) The present case is even stronger than any of those to which Mr. Justice Story has referred, since it appears that the defendant himself stopped the payment of the bill, and therefore, knew that payment would not be made.

Hence, the only question that remains to be considered, is, j whether the proof on the part of the defendant was such as to ; cast upon the plaintiff the burden of proving that he gave value , for the bill when it was transferred to him. The presumption of ¡ law in all cases is, that the endorsee of a negotiable bill or note, j is a holder for value, and it is a mistake to suppose—although the f mistake is frequently made—that this presumption in favor of > the holder is repelled merely by proof that the bill or note, as be-I tween the immediate parties, was without consideration, and wasi made, accepted, or endorsed by one, for the sole accommodation of the other. When no other proof is given, we hold it to be certain, that the holder is not bound to prove a valuable consideration. (Charles v. Marsden, 1 Taunt. 224; Grant v. Ellicott, 7 Wend. 229 ; Com. Bank v. Norton, 1 Hill, 501 ; Harvey v. Towers, 4 En. L. &. Eq. R. 531; Berry v. Alderman, 24 id. 318.)

But the law is equally clear, that when it is proved that the ' bill or note, in respect to the defendant in the action, was fraudulently put into circulation or negotiated, the plaintiff is not entitled to recover without proof, that he parted with value when it

p. 468
came into his hands. We do not say, that he is also bound to prove, that he received the paper without notice of the fraud affecting its title, for when he has proved that he parted with value, the burden of charging him with notice is cast upon the defendant. (C atlin v. Hanson, 1 Duer, 609 .)

""it is upon the last question, whether the plaintiff, upon the whole evidence, was not bound to prove that he was a holder for value, that with some hesitation, we have come to a conclusion in favor of the defendant. We think, that upon the facts admitted on the trial, the question whether the bill was not fraudulently transferred by the agent of the defendant, Peet, to whom it was delivered, when the sum of $500 was paid, upon his promise that he would return it to the defendant, ought to have been submitted to the jury, and, consequently, that to repel this defence, it was incumbent upon the plaintiff, to prove that he was a holder for value. Upon this ground, there must be a new trial, costs to abide event.

Cases cited