Beals v. Peck , 1851 N.Y. App. Div. LEXIS 100 ( 1851 )

By the Court,

Welles J.

The first question in order in this case, is upon the sufficiency of the notice of the dishonor of the note in question. It is not denied, as I understand, that the note was in fact sufficiently demanded, and at the proper time and place, or that payment was refused. It is claimed that the notice was insufficient, inasmuch as it does not state such demand and refusal, and that it does not sufficiently identify the note in question. The notice merely stated that the note was protested for non-payment; and the question is upon the legal import of the word protested, as used in the notice. If it necessarily conveyed the idea that the note had been presented at the proper time and place, and payment thereof demanded and refused, giving notice that it had been protested, was equivalent to saying it had been duly demanded and payment refused. It is unimportant what form of words is used, provided they convey to the indorser the requisite information.

Although strictly, no formal protest is necessary to charge an indorser of a promissory note, as is the case with respect to a foreign bill of exchange, yet what the import of the word includes in the latter, is equally necessary in both cases. In the case of a foreign bill, it has always been held, both in England and this country, that the protest for non-acceptance implies the presentation at the proper time and place, and refusal to accept; and a protest for non-payment, a proper demand and refusal; and notice that the bill has been protested, is a brief mode of informing the drawer and indorsers of the dishonor of the paper. (Story on Bills of Exc. § 276, note 2. Coddington v. Davis, 3 Denio, 16, 25. S. C. in error, 1 Comst. 186.)

In the present case, the same course has been adopted, and the like notice given, upon another form of commercial paper, but resembling in effect, almost identically, a bill of exchange. The relations and liabilities of the acceptor and indorsers of a bill of exchange, to the holder, correspond exactly with those of the maker and indorsers of a promissory note to the holder thereof ; and the rules of law affecting the former, are generally equally applicable to both. (Chitty on Bills, Phil. ed. of 1821, p. 420, 421.)

It seems to me, therefore, as the word protest, and its preterit protested, are words of well known signification among business’ and commercial men, when used in relation to commercial paper, and are necessarily understood to mean the taking of such steps, in the ease of a bill of exchange, as are requisite to charge the indorser and drawer, except the notice ; that is, demand and refusal ; that when used in reference to a promissory note, the same force and meaning attaches to them, as would when used in relation to a bill of exchange; and that they import a demand and refusal, as much in the one case as the other. This seems to have been the opinion of Justice Jewett in the case of Coddington v. Davis, (supra,) in this court, and of Judge Gardiner in the same case in error. The cases of Dole v. Gould, (5 Barb. S. C. R. 490,) and Boulton v. Welch, (3 Bing N. C. 688, S. C. 32 Eng. Com. L. R. 283,) cited by the defendant’s counsel, do not conflict with the foregoing view. The notice did not, in either of those cases, state that the note had been protested, and nothing is said by the court in either case as to the import or effect of that word. In both cases, the notices stated what had been done at the maturity of the notes, and in neither was it stated that the note had been demanded of the maker. In the case at bar, I have attempted to show that the word protested, imports both demand and refusal, and upon that ground I place my opinion. In the case of the Cayuga Co. Bank v. Warden, (1 Comst. 413,) the notice, in this respect, was in substance like the one in the present case, and was held sufficient; and in Stocken v. Collins, (9 Car. & P. 653, S. C. 38 Eng. Com. L. R. 273,) a notice that the note was dishonored, was held sufficient in form. (See also, Mills v. Bank of U. S. 11 Wheat. 431.)

Next, as to whether the note is sufficiently described in the notice.

The notice described a note corresponding with the one given in evidence, as to amount, maker and indorser, and contained* what was equivalent to a statement of the time it became due ; for the notice is dated December 13, 1849, and stated that the note was that day protested for non-payment. The indorser would therefore understand that it was a note which matured on that day. The note in question was dated September 10, was payable three months after date, and consequently matured on the 13th of December This, in my judgment, was sufficient. If there were other similar notes in existence, to which the notice would apply, it was incumbent upon the defendants to prove it. Ho presumption to that effect, in the absence of evidence, is to be indulged. If there was no other, then, most clearly, the indorser could not mistake as to what note was intended by the notice. If there had been a misdescription in any particular, as ivas the case in The Cayuga County Bank v. Warden, it might throw the burthen upon the plaintiff of proving that ndf note, to which the misdescription could apply, had ever been given. The case of Beauchamp v. Cash, (16 Eng. Com. L. R. 410.) cited by the defendant’s counsel, was a case of misdescription.

It is also contended on the part of the defendants, that “the indorser being dead, the notice should have been directed to his administrators, and given to all of them.”

The note in question was payable at D. Brigham & Co.’s office, in the city of Hew-York. There was no evidence showing that the notary had any notice or knowledge of the death of the indorser, at the time the note fell due, but there was evidence tending to show that the plaintiff then knew of the indorser’s death, and that the defendants were his administrators. The plaintiff was a banker in Canandaigua, and advanced the money to the maker upon the note, upon its being made and indorsed.

The notice of protest on its face, contained no direction to any one, but was directed on the outside to Reynold Peck, the indorser. This notice-was, by .request of the plaintiff, handed to Vinton Peck, one of the administrators, and was opened and examined by him, in the presence of Leach, one of his co-administrators. I think there is no doubt that in the case of two or more joint indorsers, being partners, a notice of protest served on one of them is sufficient to charge them all. (Story on Bills of Exc. § 305, and authorities cited in note 3. Story on Prom. Notes, §§ 299,308.) Though it is otherwise if they are not partners. (Story on Prom. Notes, § 308. Willis v. Green, 5 Hill, 232.) The reason seems to be, that in the case of a partnership, each partner represents the interest of the others, and of the partnership. Executors and administrators are regarded in the same light. They all represent one and the same interest. (2 R. S. 244, k 5.) I am disposed upon the whole, to hold that notice of protest to one of several executors or administrators of a deceased indorser, is sufficient: and consequently, if the notice in the case at bar was sufficiently served on one of the administrators of Reynold Peck, it was sufficient.

It only remains to consider whether the notice being in form directed to the decedent by name after his death, and not to his ^administrators, was sufficient. The fact no doubt happened in consequence of the notary being ignorant of the indorser’s death. * He directed the notice to him at the place of his residence while living, and in the same manner as if he had been living. It was delivered to one of his administrators the same day that it was received at the post office at West Bloomfield, to which place it was directed, and where the administrators all resided. It is not indispensable that the notice should be in writing. It may be by a verbal statement to the party who is to receive it. (Story on Prom,. Notes, § 341.) It has been held that where the indorser died before the note matured, and at the maturity of the note, no letters of administration or testamentary on his estate had been granted, a notice of protest directed in form to the decedent as if living, and sent to the place where he resided at the time of his death, was sufficient. (Stewart v. Ex’rs of Eden, 2 Caines’ R. 121. Merchant’s Bank v. Ex’rs of Birch, 11 John. 25.) These cases show that there is no inflexible rule as to the person to whom the notice should be directed All that the law requires, is the exercise of due and proper diligence on the part of the holder or notary, in conveying the requisite information to the person who is to receive it, and I have no doubt that the notice may be either written or verbal, or partly written and partly verbal. If the person who is to give the notice, having a written statement of the contents, or a copy of the note, without any thing else in writing, shows or delivers the same to the person to be served, and at the same time informs him that the original note so represented by the statement or copy of it, has been duly protested, <fcc. no one will deny that such a notice would be sufficient. And so if a second indorser is duly served with a full notice directed to himself only, and he shows or hands it to a prior indorser or drawer of the same paper, with a statement that it had been served upon him, there can be no doubt but the notice would be good. In short, any thing that brings home direct notice of the dishonor of the paper ought to be held sufficient. In the present case, the plaintiff, who was a subsequent indorser, directed the witness, who was postmaster at West Bloomfield, to take the notice, which was directed to the decedent by name, and deliver it to his administrators, which was immediately done. It would in my opinion, be allowing the administrator to stultify himself, to permit him to say he did not understand what it all meant, or to allow him to deny due notice of the dishonor of the note in question.

[Monroe General Term, December 2, 1851.

There were several other points made at the trial, as appears by the bill of exceptions, but which were not made upon the argument. I shall therefore treat them as abandoned.

It follows that the judgment at special term must be affirmed.

Ordered accordingly.

Welles, Selden and Johnson, Justices.]