Aiken v. Marine Bank

16 Wis. 679 | Wis. | 1863

By the Court,

Paine, J.

This action was brought against the bank as indorser. The indorsement was a follows : “Pay to the.order of Albert J. Aiken, Marine Bank, by John S. Harris, Prest.” It is claimed that this is not a valid endorsement, and that the decisions of this court in Rockwell vs. Elkhorn Bank 13 Wis, 653, Ballston Spa Bank vs. Marine Bank, ante, 120, do not extend to an indorsement, but only to the making of a note. But we think an endorsement is as fully within the reasoning and principles of those decisions, and of the cases on which they rely, as is the making of a note.

The court below erred in rejecting the certificate of the notary. The bill of exceptions does not state upon what ground it was rejected. But the argument here would indicate, that it must have been for the reason that the notice was addressed to “ John S. Harris, Prest.” It is urged that this was not a good notice to charge the bank, and reliance is placed upon a class of cases which have held that contracts signed by officers in that way, were their individual contracts, and not the contracts of the corporations whose officers they were. But some of these cases go upon the ground that although the intention evidently was to bind the corporation, yet that no sufficient language.being used for the purpose, the officers were bound, upon the rule that where an agent fails to bind his principal he bind? himself. They rely also upon the fact, which is generally true in those cases, that although the officers sign in their official capacity, still the language in the body of the instrument amounts only to a personal promise by them. And while there is a conflict upon the question, it is unnecessary to examine the cases, for the reason that those which hold to the rule referred to, are wholly inapplicable to a mere notice.

It is well settled that a notice is sufficient if it conveys the necessary information. Mistakes of description or inaccuracies, do not vitiate it, if the person notified could not have been misled. It was proved that the bank had no other note of Hoover’s of the amount or date of this note. It was proved by Harris that he never had any notes of Hoover’s himself. The certificate showed that the notice of protest was left at the bank, addressed to “John S. Harris, Prest.” No one can doubt for a moment that he understood this notice to have been given to him as president of the bank, for the purpose of charging the bank as indorser, And if he knew it, if it was impossible to place any other rational construction upon the notice, it was sufficient. If the holder had given the notice himself, it need not have been in writing. Suppose he had gone to the bank and called for the president. He tells the president that the note had been dishonored, describing it accurately, and that he looked to him for payment. The president knew that the bank had indorsed the note, he signing as president. He .knew that he was not liable on it personally, as indorser, and that all this was known to the holder. .Could he then, on a notice like the above, have a moment’s doubt as to what was its meaning, or that it was intended to notify him in his official capacity, of the dishonor of the note in order to charge the bank as indorser ? He certainly could not, and he could have just as little when such a notice was given in writing by a notary.

Assuming that a notice was necessary, we think, therefore, the one offered to be shown was entirely sufficient. But it may well be doubted, whether any notice was necessary. This note was payable at the Marine Bank. It was presented there by the notary, and he was informed by the proper agent of the bank that it would not be paid. Was it then necessary for him to turn round and formally notify the bank that it was not paid ?, There would seem to be no reason for it, so far as the mere knowledge of the dishonor was concerned. But if the endorser, knowing the dishonor has a right to assume that the holder waives all right as against him, unless he notifies him that he looks to him for payment, this part of the notice might still be necessary. Upon this point we decide nothing, having already held the notice offered to be shown fully sufficient.

The judgment" is reversed with costs, and a new trial ordered.