Davenport v. Gilbert — 17 N.Y. Super. Ct. 532

Majority

p. 532

Davenport, Plaintiff and Respondent, v. Gilbert, Appellant.

Headnote

1. A notice of protest, dated on the day a note matures, describing it by the name of the maker, and its amount, and as indorsed by the defendant, and stating that such note is protested for non-payment, and that the holders look to him for payment, is sufficient in form, without stating further descriptive particulars.

2. Although the defendant was, at the time of receiving such notice, the indorser of another note in all respects like it, which was outstanding and unpaid, except that it was payable three instead of six months after its date; still the notice is not insufficient by reason of its uncertainty, it being shown that a suit was pending on the note first due when the second note was protested, and that the defendant had answered in such suit before the note in question matured.

3. It is not sufficient, to charge an indorser, to leave notice of protest at a building in a city corresponding in number with that written under his indorsement, without proving that such building was, at the time, the indorser’s place of residence or business, and was left with some proper person therein.

4. Nor is it sufficient that a notice was sent to the indorser’s office, without proving that it was there delivered to him, or to some person in charge thereof, or that no such delivery could be made.

(Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)

Heard, April 8;

decided, April 30, 1859.

This is an appeal by Jasper W. Gilbert, the defendant, from a judgment in favor of Samuel W. Davenport, the plaintiff, entered on a verdict rendered on a trial had before Chief Justice Oaklet and a jury, on the 10th of April, 1856.

The suit is against the defendant, as payee and indorser of a note reading thus:

“ $524tW • Hew York, January 1st, 1854.

“ Six months after date I promise to pay to the order of J. W. Gilbert five hundred and twenty-four TW dollars, at the 7th Ward Bank, for value received, with interest.

“ P. J. Thomas,

“Ho. 222 West 30th street.

“ Endorsed J. W. Gilbert,

“64 Trinity Buildings.”

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The complaint is in the usual form of one by indorsee against the first indorser. The defendant’s answer denies that due notice of non-payment or presentment of the note was given to him, and avers that no such notice was ever received by or sent to him. The pleadings are not verified.

At the trial, the note and indorsement thereon, in the form above stated, were read in evidence.

The Hotary testified that he presented the note for payment at the Seventh Ward Bank, on the 3d of July, 1854; that payment was refused and the note protested; that on the 5th he left a notice thereof, directed to the defendant, “at 64 Trinity Buildings.” “ There was another notice of the non-payment of this note sent to J. W. Gilbert's office, at 22 William street. This notice was marked on the outside, 22 William street, and with J. W. Gilbert's address on the back. These two notices were both dated July 3d, 1854, and described the said note by the amount.” That the notice sent to Trinity Buildings, was similar to the one sent to 22 William street, which was read in evidence, ^iz

“Hew York, July 3, 1854.

“ Please to take notice that a note made by P. J. Thomas, for $524T0Jn indorsed by you, is protested for non-payment, and that the holders look to you for payment.

“Harman 0. Westervelt,

“ Hotary Public.”

The plaintiff having rested, the defendant proved that at the time such notice was sent, he was indorser upon another note, in all respects like the one in suit, except that it was payable three months after its date, and that such other note was outstanding and unpaid.

The plaintiff then proved, against the objection and exception of the defendant, that a suit was pending on such other note at the time the note in suit became due, in which suit the defendant had put in answer on the 8th of May, 1854.

The evidence being closed, the defendant moved to dismiss the complaint on the ground that the plaintiff had failed to prove a sufficient notice, because, (1), “no legal service of the notice had

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been proved; (2), “ the notice did not sufficiently describe the note, and might refer to either one of the notes aforesaid.”

The Court overruled the motion. The defendant was permitted to go to the jury upon the question of fact whether he was misled by the form of the notice, but he declined to do so. The Judge then decided that the plaintiff was entitled to recover, and so instructed the jury. The-defendant excepted. The jury found a verdict for the plaintiff for the amount of the note and interest, and from the judgment entered thereon, the present appeal is taken.

J. W. Gilbert, in person.

I. The service of the notice of dishonor was insufficient. The notice must be delivered to the indorser, or left at his place of residence or business with a proper person, or left at such place when there is no person present. (Code, § 409; U. S. Bank v. Hatch, 1 McLean, 90 ; Rives v. Parmly, 18 Ala., 256 ; Coster v. Thomason, id., 717; Saul v. Brand, 1 La. An. R., 95; Lord v. Appleton, 3 Shep., 270; Bradley v. Davis, 13 id., 45.)

II. The notice was insufficient on its face. It did not inform the indorser which note was intended. (Cook v. Litchfield, 5 Sand., 330, 332; S. C., Ct. of Appeals, Dec., 1853; Parsons’ Mercantile Law, 112; 5 Seld., 279.)

III. The fa.ct that an action was pending on the note which first matured, was immaterial. The notice given referred as well to the one note as the other, and both were still unpaid. This notice would have been, in every respect true, if the six months’ note had never been presented for payment.

H. G. DeForest, for respondent.

I. The notice of non-payment was clearly sufficient. A notice exactly like it was passed upon in the recent case of Young v. Lee. (2 Kern., 552, and cases cited; see, also, Stackman v. Pan, 11 M. & W., 809; Beals v. Peck, 12 Barb., 245 ; Cook v. Litchfield, 2 Bosw., 137 .)

II. The evidence offered of the existence of another note of the.same amount did not deprive the notice of its legal sufficiency.

Evidence of this nature at most only tended to show that the defendant might have been misled.

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The testimony that a suit had been commenced on the other note against Gilbert, and that he answered in that action before the maturity of this note was relevant to show the contrary.

III. The defendant declined going to the jury upon the question whether he was misled, and the Court properly directed a verdict for the plaintiff.

Upon the hearing of this appeal, the defendant argued the following propositions:

1. The service of the notice of dishonor was insufficient.

2. The notice was insufficient on its face: it did not inform the indorser which note was intended.

3. The fact that an action was pending on the note which first matured was immaterial.

The first and last points were not much pressed upon the argument—the question mainly discussed being that presented by the second point. The first point, however, was distinctly made upon the trial and now forms part of the case, and must be considered in disposing of the appeal.

Notice of the non-payment of the note was necessary in order to charge the defendant as indorser. He was entitled to such a notice as would inform him of the protest of the note' in suit. In determining whether the notice was sufficient, the circum-stances of the ease—the fact that he had indorsed but two such notes; that one was past due, and either had or had not been protested; that a suit on that note was actually being litigated by him; that one was payable at three, and the other at six months after date; that the date of the present notice is the day of the maturity of the last note; all of which was within the knowledge of the defendant—may be taken into consideration with a view to show that the defendant could not possibly have been misled or mistaken in regard to the meaning of the notice and the identity of the note. There could be no uncertainty as to which of the two notes was protested on the 3d of July, 1854. One had been due for three months, and a suit thereon had been pending against the defendant for nearly the same period. The other note (the note in controversy) became due on that day. A similar notice was held good in Youngs v. Lee. (2 Kern., 552; see, also, 5 Seld., 286; 23 Wend., 626 .)

p. 536

It was proper to admit evidence of the fact of the suit pending upon the first note, and the answer of the defendant therein to meet" the suggestion that he was or might be misled by the notice in the present action—a suggestion based on the fact that the defendant had indorsed two notes of the same date and amount. Whether the defendant could or could not have been misled’was a question of fact; and he declined to submit it to the jury.

The Court did not err in its ruling with regard to the second or third point.

As to the service of the notice, the most liberal view that the evidence will admit on behalf of the plaintiff is, that the Notary left one notice at 64 Trinity Buildings, and sent another to the defendant’s office at 22 William street. The address marked on the note, affixed to the indorsement of the defendant, might, under certain circumstances, authorize a notice to be served upon some person at that place, or left there; but that would • not be a proper place to leave it, if the Notary knew it had ceased to be the" defendant’s place of business, unless his new place of business was not known or could not be ascertained' upon inquiry. It is the duty of the Notary, or of the holder, to make diligent search and inquiry for the maker, his place of business or residence, in order to present the note and to protest it for non-payment; and I can see no good reason why the same diligence should not be required and exercised as against the party alone to be made liable by such diligence. The proof of service should show either that the notice was served personally, or, if the indorser could not be found, that it was left at his resi denee or place of business, or furnish some sufficient reason for other service being made. It is a just inference from the evidence that the Notary knew the place of business of the defendant. The evidence did not show what place 64 Trinity Buildings was, what connection, if any, the defendant had with it, to whom, if to any person, the notice was delivered, or the relation such person had to the defendant, or what disposition was made of the notice at that place. The other notice was sent to the office of the defendant at 22 William street. It does not appear by whom or by what means this was sent, nor to whom it was delivered, nor that- it actually reached the building having that number. This, in my opinion, is not sufficient. Notice should be brought

p. 537

home to the defendant either by personal service or by leaving the same with some person at his place of business or residence, or some reasonable excuse should be given for the omission. (See 6 Duer, 492 ; 16 N. Y. R., 237; 11 Johns., 232 ; 3 Seld., 481; 24 Wend., 230 .)

The act of 1857, (ch. 416, p. ■ 839,) seems to sustain this view, as its object is to relieve holders of notes, &c., from embarrassment as to the manner of serving notice in order to charge the indorsers. The act, however, in express terms, excludes from its operation all notes made prior to its passage, and, of course, does not affect the note in suit. '

The service of the notice not being sufficiently proved, the judgment must be reversed solely oh this ground, and a new trial ordered, with costs to abide the event.

Bosworth, Oh. J., and Hoffman, J., concurred.

Judgment reversed, and new trial granted, with costs to abide the event.