16 Barb. 177 | N.Y. Sup. Ct. | 1853
The claim of the plaintiffs is founded on an assignment to them by Cephas C. Barker of his claims against the defendants and one A. J. Hackley for moneys paid on a certain note, they being prior indorsers on the said note. The note in question was in the following words and figures.
“ Nine months from date I promise to pay to the order of P. Cassidy,, at the Onondaga County Bank, four hundred and sixty dollars, for value received, with use. Dated October 22,1842.
(Signed) Aaron Hackley.”
(Indorsed) “ P. Cassidy. A. J. Hackley.
O. Higbie. C. C. Barker.”
I. The defendants object to any recovery, except on the note in question, and insist that the action on the note is barred by the statute of limitations. In the latter part of the opinion of the chancellor in Butler v. Wright, (6 Wend. 290,) it is intimated that if the plaintiff had been the owner of the whole note, so as to have been able to recover on a special count against the defendant as an indorser, on the contract of indorsement, the action On the implied promise for money paid, would not have lain. There are obvious objections in principle, and may be great inconvenience in practice, to the maintaining of an action on the implied promise, when the express promise exists, and may be made the subject of a suit. But as it is not, upon the evidence in this case, clear that Cephas 0. Barker had that right of action on the note, for the whole of it, or had such an interest in the note or judgment as to be able to control them, we shall express no opinion on that point, but shall assume, for the purposes of this argument, that he had no such right. Then looking at the decision in the case of Butler v. Wright, as reported in 20 John. 367, and in another action between the same parties, (2 Wend. 513,) and the same case in error, (6 Wend. 284,) two propositions appear to be established; (1.) That the real cause of action is for money paid for the use of the prior indorsers; and (2.) That the six years will run from the payment of the money, and not from the time when the note fell due;' especially" when the statute had not attached at "the time Of the payment,"
II. It is argued that enough appears to warrant us in the inference that the recovery at the suit of Leonard against Barker, was on account of the money received from the maker of the note; and if this clearly appeared it would unquestionably furnish a perfect defense ; for, then, the payment of this money, which he had received from the maker, could not be regarded as money paid for the use of the defendants. It is, however, sufficient to say that this fact does not clearly appear, either from the amount of the recovery, or in any other way. And yet there is no reason appearing in the case, 'why the recovery was not for the full amount of the note. On another trial the defendants may be able to show how this fact really is. On the present argument we can assume nothing which does not appear on the bill of exceptions.
III. We have already seen that, to authorize a recovery against the defendants, it must appear in some legal way that the money was paid, for the use of the defendants. How, this may be shown by proving that a demand was made, and due notice thereof served on them; and it might also be shown by proving that the money was paid at the request, of the defendants, and on their promise of indemnity, or repayment. The plaintiff has, however, sought to establish this fact, by proving a prior indorsement, demand and notice, and this he has attempted to do in two ways. 1. He offered in evidence the record of a judgment by default, in the aforesaid action, in which Orcut obtained judgment on the note against the several parties to it. To this record, as evidence of the fact of a demand and notice, there was an objection which was overruled by the judge; to which ruling the defendants excepted. It is hardly necessary to say that this record against the defendants, on the note as the foundation of an action at the suit of a subsequent holder, cannot be evidence of a demand and notice, in this suit. (1.) It is not a suit for the same subject matter.
2. The plaintiffs also gave in evidence the notarial certificate, notwithstanding an affidavit of the defendants denying, according to knowledge, information, recollection and belief, the receipt of any notice. The notarial certificate is presumptive evidence of the facts contained in it. But it is expressly provided in the statute that the presumption shall cease, where the defendant denies by affidavit the receipt of the notice. (Laws of 1833, ch. 271.) The affidavit denying notice, renders it necessary to produce the witness who made the demand and gave the notice; and the question is, whether a denial according to knowledge, recollection and belief, is a denial within the statute. The meaning of the affidavit is, that the party has no knowledge, recollection or belief of receiving a notice. This is going about as far as most men would be willing to go, and about as far as most prudent and conscientious men would be prepared to go in relation to the receipt of notice several years before. How could the men know but that some clerk of theirs might have taken out the notice, and brought it to their counting rooms and it was never seen by them ? They cannot say that; but they can deny all knowledge, recollection or belief of having received the notice. Such an allegation in an answer in chancery would be a full denial that would throw on the party alleging the service of notice the bur-then of proving it. Suppose the law had provided that the defendant should be examined on the trial and if he denied notice then that the witness who made the-service should be produced; would not a denial of all knowledge, recollection and belief, cast the burden on the plaintiffs of proving the fact % It should be remembered that it imposes no great hardship on the plaintiff. He is only bound to prove the fact, just as he is bound to prove every other fact in his case. I confess I think he should have been required to prove the demand and notice, by the witness himself. But whether the rule be so or not, is immaterial in this case for,
Gridley, Pratt, W. F. Allen and Hubbard, Justices.]
8. The notice was proved to have been sent to Higbie at . the wrong place. Mr. Kernan testified that Higbie never lived in Utica, but the notice was sent there. Of course there must be a new trial, and on that trial a question will arise whether a joint action can be maintained against two separate indorsers for the cause of action on which the plaintiffs were allowed to recover. The recovery is not on the note ; but for money paid, by a subsequent indorser against a prior one. The suit therefore is not authorized by the act which allows a joint suit against the separate parties to a note or bill of exchange. Nor was it authorized by the 120th section of the code, (see Commissioners’ Report of 1848, page 127, section 100.) Upon the new trial, it will be open to the parties to establish several facts that are left in doubt on this bill of exceptions; and which may exert a controlling influence upon the rights of the parties.
(A new trial was finally granted on only one of the above 4 grounds, viz, the improper joinder of the two defendants inJ the pleadings.)