De Wolf v. Murray — 4 N.Y. Super. Ct. 166

Majority

p. 166

De Wolf v. Murray.

Headnote

Where a notary certifies that he attended at the office or place to which a bill of exchange was addressed, for the purpose of demanding payment, and found the office closed, and no person there to give an answer respecting the bill; (it not appearing to have been a bank or banker’s office ;) it was held to be a sufficient presentment of the bill to charge the indorser.

The certificate imports a presentment during the proper hours of business.

A statement, made up by the indorsee, charging the indorser in terms with the “ protested exchange,” describing it by the drawer’s name, the acceptor’s name, and the amount, and adding to it expenses of protest, interest and damages, was submitted to the jury as sufficient notice of the dishonor of the bill,. if the indorser were thereby distinctly informed that it had been dishonored, and that payment was expected of him as indorser.

Where notice of dishonor is given too late, the indorser will be bound by a subsequent promise to pay the bill, if made with a knowledge that the notice was not in time.

Sept. 27;

Oct. 28, 1848.

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Assumpsit against the indorser of a hill of exchange for £230, dated at New York, August 14, 1847, drawn by W. Russell to the order of the defendant, and payable sixty days after sight. It was addressed to H. 0. Collard, as mentioned in the opinion, and was accepted by him on the 28th of August, 1847.

The protest of the bill, signed and sealed by the notary, was read in evidence, in these words, viz.:

“ On this 30th day of October, 1847,1, Arthur Ellis, Notary Public, duly admitted and sworn, dwelling in Liverpool, in the county of Lancaster, kingdom of Great Britain, at the request of the holders thereof, did attend to exhibit the original bill of exchange, (whereof a true copy is on the other side,) at the office of H. 0. Collard, No. 18 Chapel Walks, Liverpool, the person upon whom the said bill is drawn, for the purpose of demanding payment thereof, (the time limited for payment thereof having expired,) when I found the said office closed, and no person there to give an answer respecting the said bill. Wherefore I, the said notary, at the request aforesaid, have protested, and by these presents do protest, against the drawer and indorsers of the said bill, and all others concerned, for all exchange, re-exchange, and all costs, damages and interest, present and to come, for want of payment of the said bill.”

The plaintiff called a witness, who testified that the plaintiff received the protested bill in New York, on the 22d of November, and on the same day presented to the defendant a statement in these words, viz.:

“ Christopher Murray, Esq., 111 Broad Street,

“ To Thos. L. De Wole, Dr.

“Nov. 22.—For W. Russell’s protested exchange on H. O. Collard, Liverpool, G. B., for £230 sterling, due 30th October, and expenses of protest 23s. Ad. sterling, at $4 84 per £1 sterling, $1118 04

Interest from 30th October to date, 22 days, at 7

per cent., 5 10

$1123 14

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Amount brought forward, $1123 14

Damages, 10 per cent., 112 31

Cash, $1235 45

“New York, Nov. 22, 1847.” -----

The defendant said he would call and see the plaintiff, and afterwards promised to pay the bill.

It was proved that the first arrival in New York of letters from Liverpool, written on or after October 30th, was on the 22d of November, 1847.

The plaintiff here rested his cause, and the defendant moved for a non-suit, on the following grounds: 0

First. Because no notice of protest sufficient to charge the defendant as indorser, was proved to have been delivered to him. The paper delivered does not apprise him of the due presentment and demand of payment of the bill, nor that he is looked to as the indorser for payment.

Secondly. That no proof has been given of notice of protest being sent from Liverpool at all; or if sent, that there was no proof when it was sent from England, or that notice of protest was sent by the first vessel sailing after the bill was protested, or when it arrived at New York, or that notice was given within due time after the arrival of information of the protest received in New York.

Thirdly. That there is no sufficient evidence of a demand on the acceptor to charge the defendant as the indorser. That the facts stated in the protest, are not sufficient for that purpose.

Fourthly. That the notice of protest should have been given by the notary who protested the bill of exchange, and should have been accompanied by a copy of the original protest, or that notice of the protest should have been given here by a notary public, accompanied with a copy of the original protest, it being a foreign bill.

The court overruled the motion.

The defendant then called a witness, who testified that it was on the 24th of November, and not on the 22d, that the statement was delivered by the plaintiff to the defendant.

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The judge charged the jury as follows :

First. That the proof of demand of payment of the bill and of its dishonor, was sufficient. Second. That the notice of dishonor of the bill, if given on the 22d of November, was in time and sufficient, if the defendant was distinctly informed that the bill had been dishonored, and that payment was expected of him as indorser. Third. If notice was given on the 24th day of November, it was not in time ; and in that case, the plaintiff could not recover, unless the jury should find that the defendant promised to pay the bill with a knowledge that the notice was not in time.

The defendant excepted; and the jury found a verdict for the plaintiff.

E. Sandford, for the defendant.

J. Larocque, for the plaintiff.

It is contended in behalf of the defendant, that no sufficient evidence was given of a demand of payment from the acceptor of the bill in England, to render the defendant liable as indorser. The statute gives the notary’s certificate as a substitute for his personal testimony at the trial. (2 R. S. 212, § 46, 2d ed.)

The bill was directed to H. O. Collard, No. 18 Chapel Walks, Liverpool. The notary says in his certificate, that on the 30th day of October, 1847, he did, at the request of the holders, attend to exhibit the bill of exchange, at the office of H. O. Collard, at No. 18 Chapel Walks, Liverpool, for the purpose of demanding payment thereof, (stating in parenthesis, that the time limited for the payment thereof had expired ;) when he found the office door closed, and no person there to give an answer respecting the said bill. The demand was made at the place which the bill itself indicated as the drawee’s residence or place of business. It was directed to him at the place where the demand was made, and although the certificate of the notary does not state the time of day when demand of payment

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was made, yet it is not, as against this official act, to be presumed to have been made at an unseasonable hour.

In The Cayuga Co. Bank v. Hunt, ( 2 Hill, 635 ,) the notarial certificate of a protest of a bill of exchange, stated a presentment for payment at the office of the acceptor on the proper day, and that the office was closed, but was silent with respect to the hour of doing the act; yet it was held sufficient, as regularity in this particular should be presumed. We say here, as Justice Cowen said in that case, the certificate in fair construction, imports a presentment of the bill during the proper hours of business. These, except where the paper is due from a bank, generally range through the whole day, and in the evening till bed time. (Cayuga Co. Bank v. Hunt, 2 Hill, 635 ; Wilkins v. Jadis, 2 Barn. & Adol. 188.) In the latter case, it was held, that presentment of a bill of exchange for payment at a house in London, at eight o’clock in the evening of the day when it becomes due, is sufficient to charge the drawer; although at that time, the house was shut up, and there was no person there to pay the bill. Lord Tenterden says, that as to bankers, it is established with reference to a well known rule of trade, that a presentment out of the hours of business is not sufficient; but that in other cases the rule was, that it must be presented at a reasonable hour, and that eight o’clock in the evening was not an unreasonable hour. We hold the certificate here to be sufficient evidence of a presentment of the bill for the purpose of demanding payment.

2. It is contended, that no notice of protest sufficient to charge the defendant as indorser, was given. The judge charged the jury, that notice of the dishonor of the bill, if given on the 22d of November, was sufficient and in time, but that if given on the 24th of November, it was not sufficient; and in that case, the plaintiff could not recover, unless the jury found that the defendant had promised to pay the bill with a knowledge that the notice was not in time. The jury found for the plaintiff. The defendant positively promised to pay the bill, not once, but twice. He seemed to be informed of its return, before the agent of the plaintiff disclosed the fact to him; for as soon as the witness opened the door, the defendant said, “ Well,

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that thing has come back.” The bill of parcels was handed to him, and two or three days afterwards, upon being applied to for the amount, he promised to pay it. Afterwards he called at the plaintiff’s office, and again promised to pay it. The bill of parcels sufficiently informed him of the ground on which the demand was made, and we cannot under the evidence in the case, hold that he was not fully cognizant of every fact necessary to render his unqualified promises to pay binding. Without intending to imply that any pre-requisite, necessary to render the defendant liable as indorser, has not been complied with, we would, if there had been any non-compliance with such pre-requisites, find it difficult to hold that the defendant made his promises to pay in ignorance of such omissions. After carefully looking at the evidence in this case, and the verdict of the jury, we deny the motion for a new trial.