Davenport v. Gilbert — 19 N.Y. Super. Ct. 179

Majority

p. 179

Samuel W. Davenport, Plaintiff and Respondent, v. Jasper W. Gilbert, Defendant and Appellant.

Headnote

1. A notice directed to the indorser of a note, dated the day the note matures, which states the name of the maker, its amount, and that such note, “ indorsed by you, is protested for non-payment, and that the holders look to you for payment," is sufficient in form.

2. Although such indorser, at the time of receiving such notice, was also indorser of another note in all respects like it, except that the latter note matured three months earlier, he cannot avoid liability on account of the general terms of such notice, if it be found as a fact, upon competent and sufficient evidence, that when he received the notice he had actual knowledge that it related to the note in question.

(Before Bosworth, Ch. J., and Robertson, J.)

Heard, February 13th;

decided, February 25th, 1860.)

Appeal by the defendant from a judgment entered on a verdict rendered on a trial had before Mr. Justice Woodruff, without a jury, on the 3d of October, 1859.

The defendant is sued as payee and first indorser of a note for $524.63, dated January 1, 1854, made by P. J. Thomas, payable to defendant’s order, six months after date, at the Seventh Ward Bank.

When the plaintiff had read in evidence the note, and the notary’s certificate of protest and service of notice, and rested, the defendant testified, in his own behalf, that, when the note in suit became due, and thence until after this suit was brought, there was another note outstanding, in all respects like the one in suit, except that it was payable three instead of six months after date.

That a suit was brought on the three months’ note; that he put in an answer; and that suit was pending when this was commenced. The answer in that suit was read in evidence in this.

, The defendant, when the evidence was closed, moved to dismiss the complaint, on the ground that the notice served was fatally defective, in not specifying the note in suit as the one to which it referred. The motion was overruled, and he excepted.

The Judge found, among other facts, that the defendant had actual knowledge that the notice related to the note in suit, and

p. 180

gave judgment for the plaintiff for the amount of the note and interest.

■ From this judgment the defendant appealed to the General Term.

Further particulars are stated in the opinion of the Court. The action had been previously tried; and, on appeal from the judgment then recovered by the plaintiff, a new trial was granted. (See 4 Bosw., 532 , for the questions then presented and the opinion then delivered.)

Jasper W. Gilbert, appellant (in person).

Weeks & De Forest, for respondent.

The defendant is sued as the payee and first indorser of a note dated the.lst of January, 1854, at six months for $524,63.

It was proved that the note was duly presented for payment on the 3d of July, 1854; that payment of it was demanded and refused, and that it was thereupon protested, and that notice thereof was duly served on the defendant on the 5th of said July. The notice so served was read in evidence, and in form is like the one served in Youngs v. Lee. (2 Kern., 552.) In the absence of proof that other notes existed which might render the applicability of the notice to the Rote in suit uncertain; the notice must be understood to mean that the note of which it speaks had beén presented for payment, that payment of it “had been demanded and payment refused on the day when it became due.” (Youngs v. Lee, 2 Kern., 554.)

The only extrinsic fact shown to render the applicability of the notice to the note in suit uncertain, is, that the defendant was the indorser of another note in all respects like it, except that such other note was payable at three months, while the one in- suit was payable at six months.

This evidence was met by proof that at the time the notice-in question was served, a suit had been pommenced against the defendant upon the three months’ note, and the defendant had answered the complaint in that suit, and such answer contained no averment that the three months’ note had not been regularly protested, or that notice of it had not been duly served.

p. 181

It was found as a fact, that the defendant was not misled or left in uncertainty as to the applicability of the notice to the note in suit, “ but was by the aforesaid notice of non-payment informed, and from all the facts had actual knowledge that the said notice related to the note described in the complaint in this action.”

We think the evidence sufficient to justify the finding of the facts, as they were found. That the facts as found entitled the plaintiff to judgment, is settled so far as this Court is concerned, by Cook v. Litchfield. ( 2 Bosw., 137 .) The opinion of the Court when this cause was previously before it, at General Term, favors the same conclusion.

The judgment must be affirmed.^[1]

1 See Hodges v. Shuler, 22 N. Y. R., 114.