24 N.J.L. 71 | N.J. | 1853
Opinion of the court by the
This action was brought against the defendant, as the en
Note No. 2, on the 21st of June, 1851, the day of its maturity, between the hours of three qnd five o’clock in the afternoon, was presented, by the notary, at the place of business of the maker in the city of New York, and exhibited to a person in the employ of the maker, and payment demanded. On the 23d of June, (the 22d being Sunday) notice of protest was delivered, by the clerk of the notary, to the plaintiff; and on the same day, as the witness thinks, between twelve and four o’clock, was mailed to the defendant, at his place of residence. Witness thinks it was mailed before the southern mail closed, but made no inquiry as to the time of day the mail left for Rocky Hill. Note No. 2 answers the description of the note mentioned in the notice of protest. The notice of protest states that a note for $1000, made by George Wood, treasurer, was protested for nonpayment. Upon this evidence being given, the defendant moved for a nonsuit, on the ground that the evidence was not sufficient to sustain an action against the endorser upon either of the notes. The motion was overruled, with leave to the defendant to renew the application to the court at bar upon the coming in of the postea.
The application for a nonsuit rests upon an alleged defect of the plaintiff’s evidence in several particulars.
The evidence shows that, on the third day of grace, the note was protested by a notary public; that, on that day, it was duly presented at the place of business of the maker, and payment demanded. It is not, indeed, averred in terms by the witness that payment was refused on presentment; but that fact is sufficiently shown, if there be due proof that the note was presented and protested for nonpayment, and that due notice of protest was given to the endorser.
II. But it is insisted that there is no evidence that due notice of the dishonor of either note was given to the endorser. As to note No. 1, there was no evidence whatever of the contents of the notice ; and as to the second note, though the witness states the contents of the notice, as far as he recollects them, the contents of the notice (as proved) it is insisted are insufficient to hold the endorser accountable.
The evidence of the notary and his clerk, in regard to note No. 1, is, that the note was protested for nonpayment, and that the notice of protest was put into the post office, addressed to the defendant at his place of residence. No copy of the notice was exhibited. There was no further proof of its contents. The evidence was taken under a commission in the city of New York, and no cross interrogatories were exhibited.
It is usual, and certainly advisable, to offer in evidence a copy of the notice of the dishonor of a note, but it is not necessary that the notice should be in writing. It may be verbal; and when a written notice is given, the contents of the notice, as well as the fact of notice, may be proved by parol.
Proof of the fact, that notice of dishonor was given, is at least prima facie evidence that the notice was in proper form. The witness is open to cross-examination. The notice, if written, is in the hands of the defendant, and it is incumbent on him, if he relies on that fact, to show that the form of the notice was defective.
In regard to the second note, the witness, on being cross-examined, stated that the note declared on, which was exhib
It is further objected that the notice did not state that the holder looked to the endorser for reimbursement and indemnity. The object of the notice is to apprize the endorser that the note is dishonored, and that he is looked to for payment. It is not necessary to state in terms that the holder looks to the endorser for indemnity. It is enough if that fact appears by just and natural implication. The modern cases agree that the fact of giving notice to the endorser that the note is dishonored for nonpayment, is in itself a sufficient notice that the endorser is looked to for payment. Lewis v. Gomperty, 6 Mees. & W. 399; Cooke v. French, 10 Ad. & E. 131, note; Bank of U. S. v. Carneal, 2 Pet. 543; Story on Prom. Notes, § 353, 334; Story on Bills, § 301, 390, n.
It is further objected that the notice was not mailed in time to the endorser. The proof is, that note No. 1 was protested on the 22d day of July, and the notice put in the post office in the city of New York the next day; that note No. 2 was protested on the 21st of June, 1851, and, the next day being Sunday, the notice was put in the post office on Monday after twelve o’clock, but, as the witness thinks, not after four o’clock P. M; He made no inquiries, nor is there any proof at what hour the mail left for Rocky Hill, the residence of the en
In the more recent edition of Kent’s Commentaries, the rule is stated thus s “According to the modern doctrine, the notice
And in note a to page 106, the author further states, that the rule was laid down too strictly in Lenox v. Roberts, 2 Wheaton 373; viz. that notice of dishonor must be put into the post office early enough to be sent by the mail of the day succeeding the last day of grace; and that the rule, as it is now generally and best understood in England and in the commercial part of the United States, is, that notice put into the post office on the next day after the third day of grace, at any time of the day so as to be ready for the first mail that goes thereafter, is due notice, though it may not be mailed in season to go by the mail of the day after the default. This is certainly very high authority on a question of commercial law, and the change in the statement of the principle shows that it was made deliberately and upon examination and reflection. Yet it is worthy of notice that this authority was before this court at the time of the decision in the Sussex Bank v. Baldwin. It has since undergone the examination of other American courts without securing their concurrence or approbation. Donnes v. The Planters Bank, 1 Smedes & Marshall 261; Wemple v. Dangerfied, 2 Ib. 445. In both these cases the rule was held to be, that the notice must be in the post office in time to go by the mail of the day next after the day of protest, if á mail goes on that day, unless it leaves at an unreasonably early hour.
In Beckwith v. Smith, 22 Maine 155, it was held that the notice must be in the post office in season to be carried by the mail of the next day after the note is dishonored.
In Chisk v. Pillsbury, 24 Maine 458, it was held by a majority of the court, that it is sufficient if notice of the dishonor of a promissory note be put into the mail within a convenient
• The verdict must be set aside, and judgment of nonsuit entered.