The Cayuga County Bank v. . Warden , 6 N.Y. 19 ( 1851 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] When this cause was first before us, we held in substance, that enough appeared upon the face of the notice, to justify the application of the extrinsic evidence by which the note in question was identified; that the description there given was true in part, but not in every particular, and that the maximfalse demonstration non nocet applied; because after striking from the notice all that was false, enough remained to authorize the parol evidence, by which the note in controversy was identified, as the subject of that notice.

The doctrine of that decision, and the propriety of its application to the case then before us, has been questioned; and it may be well, therefore, to refer to some cases illustrative of both.

Goodtitle v. Southern, (1 Maule Sel. 299,) was a devise of land. The premises were described as "Trogues farm now in theoccupation of B." That part of the description relating to the possession, was rejected as false and effect was given to the devise by what remained. In Jackson v. Loomis, (18 John. 81,) the premises were described in the grant by their number, and by monuments, courses and distances. The number was rejected. In Lusk v. Druse, (4 Wend. 313,) the lot, on the contrary, was described by metes and bounds and by number. The number was adopted to give effect to the demise, and the boundaries rejected.

Those who are curious to ascertain, how frequently a principle, coeval with the common law, has been recognized and acted upon, will find some of the authorities collected in Cowen Hill'sNotes, from p. 1362 to 1382.

In this case, the note was described as "S. Warden's note "payable at the Cayuga County Bank, and endorsed by" the defendant; the amount was stated in the body of the notice to be three hundred dollars, and in the margin were the figures $600, which in dollars was the true amount of the note protested.

The extrinsic facts were, first, the note in suit. 2d. The knowledge of the defendants, that this note was in the Cayuga Bank; established by evidence, that it was given on a renewal of a former note, held by the plaintiffs, made and indorsed in the same manner, with the one in controversy. 3d. That it was the only note in the bank, or so far as appeared made payable there, made by S. Warden, and indorsed by the defendant, according to the call of the notice. This court held, that construing the notice in the light of these facts, all of which were known to the defendants, the note in question was prima facie sufficiently identified, by the name of the maker, the place of payment, the indorsement of the defendant, and the sum stated in the margin. That the amount in the body of the notice might, and under the evidence of surrounding circumstances, ought to be rejected, and that the note would then be designated by other parts of the description.

This was the whole decision. It was the application of a familiar principle to a case imperatively demanding it.

There was nothing in the judgment that would seem to call for the authorized dissent of a member of this court, who for reasons satisfactory to himself took no part in the decision, but who we were informed upon this argument, subsequently expressed his views in opposition to those of his associates, in a communication to the counsel of the defendants.

We were told upon the former argument, and it has been again repeated, that a note for three hundred dollars was not a note for six hundred. This is certainly true. And it was equally true in Jackson v. Loomis, (supra,) that lot 24 was not lot 25. Effect, however, was given to the grant in that case, by locating the land according to other parts of the description, and rejecting the number, and by this court to the notice in this case, by rejecting the number of dollars in the body of it, and identifying the instrument by the other particulars mentioned.

An attempt was made to distinguish the cases referred to from the present, by the consideration, that in grants and wills, the intention of the parties and of the testator, was the only thing to be ascertained.

But the intention is to be gathered from the language of the instrument, and not otherwise; and the purpose of the grantor or devisor, to convey a particular piece of land, depends upon the description which will identify, and enable others to locate the parcel. So the design of the notary in this case, was to inform the indorser of the dishonor of a particular note. Whether he has succeeded, depends in like manner upon the terms of the notice. If the subject is there described, so as to be identified, upon proof of extrinsic facts, which in the language of Lord Coke, "stand with the notice," the object will be accomplished; although the description may not be true in every particular; and the defendant would be bound by it, although as dull of apprehension, as his counsel proposed to prove him. There is no difference in principle, therefore, between the case before us and those cited; certainly nothing that should exempt an ordinary commercial notice, from a rule, which has been resorted to in the construction of wills, grants, and even of statutes.

Remer v. Downer, (23 Wend. 626,) which the counsel for the defendant supposes this court to have overruled, is in conformity with the principles above suggested. In that case, the note was made by one Young, and Remer, who was sought to be charged, was second indorser. The notice upon its face, was addressed to "N. Williams, cashier," and informed that person, that "James Young's note indorsed by you," was protested, c. The letter containing the notice, was upon the outside addressed to Remer, at his place of residence.

The court of errors assumed, that the notice was not addressed to the indorser, but to Williams. The chancellor accordingly remarks, "that Remer could not have supposed that "James Young's note, for a larger amount, indorsed by Williams "to whom the notice was addressed, was the one intended."

As the chancellor viewed the facts, every part of the notice, as to the note in controversy was false; false as to the amount, the indorser, and the address; and Remer could only suppose, as the opinion states, "that the letter was wrongly directed upon "the back by mistake."

The supreme court, on the contrary assumed, under the finding of the jury, that the notice was addressed to Remer. On this supposition Remer was informed, that James Young's note payable at c., indorsed by him, was protested, c.

Judge Bronson accordingly remarks, that the note was undescribed as to the amount; "but in all other respects," [which "included the indorsement,] was accurately described, and was "the only note in the bank with his name upon it."

The difference between the courts was one of construction. The supreme court, acting upon the verdict, which found that the indorser was not misled, adopted the address upon the back of the letter as a part of the notice. The court of errors, I think, correctly construed the notice as it read upon its face, without reference to the outside direction. Had the notice in the body of it been addressed to Remer, instead of Williams, it would have been in substance this case; and the notice hence would have been held sufficient, as is manifest from the reasoning of the chancellor. There is not an intimation in the opinion to the contrary.

Again, it was objected upon the trial that the first count of the declaration was bad as containing a cause of action not authorized by the plaintiffs' charter, and that the amendment allowed upon the trial was without terms, and not within the spirit of the 149th section of the Code of 1848. The judge directed that the objectionable parts of the count should be stricken out without costs to either party. This was the effect of the decision. An amendment without costs we think is an amendment "upon such terms as may be proper," within the meaning of the section which refers the terms to the discretion of the court.

Another point made by the defendant, is that the note was not evidence to sustain a recovery upon the money counts, as no money was paid to, or received by the defendants, as the consideration of their indorsement.

The authorities referred to by the defendant's counsel, establish the principle that the indorsement is prima facie evidence in favor of the indorser against the maker, of money lent, and money had and received. (7 Barb. S.C.R. 15, andcases.) It is, in truth, evidence of an undertaking to pay money upon a consideration received by the indorser. The plaintiff must prove the contract, and a breach, before the indorsement and note become evidence, and not merely an acknowledgment of the receipt of money.

The nature of the consideration has no influence upon thecontract, and upon principle should have none upon the remedy by which it is enforced.

When therefore the courts held that the contract was evidence at all, to authorize a recovery under the money counts, to have been consistent, they should not have allowed the action to be defeated by any evidence that would not be a bar to suit upon the contract.

The rule may be otherwise in England, but in this state, inHughes v. Wheeler, (8 Cowen, 84,) it was adjudged that the note was conclusive evidence of pecuniary consideration, so far as respects the remedy under the money counts. Ten years afterwards, in Smith v. Van Loan, (16 Wend. 660,) the decision was affirmed, and the doctrine applied, where the consideration of the note was work and labor. Such has been the law as settled for twenty-five years. In Butler v. Rawson, (1Denio, 107,) the same doctrine was recognized, but an exception made in cases where the suretiship of one of the makers appeared upon the face of the note. This case has been followed inBalcom v. Woodruff, (7 Barb. 15.)

Whether these exceptions are consistent with principle, is a question not necessary to be decided at this time. Hughes v. Wheeler settled this question as one of pleading, and we think the decision ought not to be disturbed.

The judgment must be affirmed.