41 Barb. 599 | N.Y. Sup. Ct. | 1864
The indorsement of John Yogt & Co. was undoubtedly a New York contract, and governed by the laws of New York.
By their indorsement, made in New York, John Vogt & Co., in effect, contracted to pay the note in New York, if upon the note being duly presented for payment at the office of J. W. Olds & Co., at Mobile, payment was refused, and they were duly notified of such demand of payment and 'refusal. (Aymar v. Sheldon, 12 Wend. 439. Everett v. Vendryes, 19 N. Y. Rep. 436. Cook v. Litchfield, 5 Selden, [9 N. Y.] 290.)
The decision in Lee v. Selleck, (32 Barb. 522,) was probably right, because probably on the facts found, the indorsement in that case was properly considered as made in New York; but so far as any thing was said in the opinion in that case, to the effect that if the indorsement was made in Illinois, it was a contract, in default of payment by the maker, to pay to the holder or indorsees in New York, the opinion is erroneous.
The contract of indorsement is undoubtedly a contract to pay where the indorsement is made.
What was said in any way inconsistent with this, in Lee v. Selleck, was said inadvertently, or at least without sufficient attention to the cases, and perhaps to principle. I say this with less hesitation, because I wrote the opinion in that case.
If the indorsement of John Vogt & Co. was a New York .contract, it would seem to follow that the judgment in the principal case was right and should be affirmed, for the defendants admit by their answer that they assumed the duty of collecting the note for the plaintiffs; and ignorance of the law on their part, or on the part of their agents at Mobile, cannot excuse the omission of protest and due notice of nonpayment to John Vogt & Co., the indorsers.
The judgment should be affirmed with costs.
Leonard, Glerhe and Sutherland, Justices.]
