66 Vt. 320 | Vt. | 1894
I. The amended declaration took effect
II. The court did not err in refusing the testimony offered to show the intention of the defendant’s attorney in filing the pleas as he did. His pleas, placed on file, were-to be given their legal effect. The pleader’s intention was-to be ascertained from what they contained and the order in which they were filed. They were not necessarily to be given the legal effect intended by the pleader. If such were the case, before answering, every repliant must, ex necessi
III. The court allowed the protest of the note of March 19, 1883, t0 be received in evidence to show due presentment, demand and non-payment of the note. To this extent it was clearly admissible. From other evidence considered in connection with this, it found notice thereof to the defendant. The protest showed that the notice to the defendant was sent by mail to the plaintiff. Why this was done is not shown. It may have been that the notary did not know the post-office address of the defendant, or the plaintiff may have directed the notary so to send the notice to him, the plaintiff intending to deliver it in person to the defendant, who lived near him in the same village. On this note, under the date of October 1, 1883, there is an endorsement of a payment made by the defendant. Such payment, if made to be applied on this note, was evidence tending to show that the defendant’s liability upon the note had become fixed by due protest and notice thereof to the defendant. Sandie v. Robertson, 7 East. 231; Blodgett v. Durgin, 32 Vt. 361; Bundy v. Buzzell, 51 Vt. 128; Bank of United States v. Lyman, 20 Vt. 666, 679. In the last named case it is said:
“ It has often been held that part payment, a promise to pay, or an acknowledgement of liability, by an endorser, after the note becomes due, is prima facie evidence, not only of notice, but of presentment.”
It is contended by the defendant that this payment was not made to be applied on this note. It was made in Canada, and the plaintiff gave the defendant a receipt stating
The defendant urges that this note was then supposed by the plaintiff to be fully secured by attachment of the defendant’s property, and hence it would be more reasonable to conclude that the plaintiff was demanding payment on the undue note. It is not found that the plaintiff supposed, when he gave the receipt, that this note was fully secured by attachment of property. It is found that the attachment was of no avail. Hence these facts, if they modify, do not take away the force of the fact that this note was due and the other not due.
We also think that the order, turning out to the plaintiff, at a later date, the railroad bonds in the hands of Mr. Hendee, with directions to apply whatever was received therefrom in payment of both of these notes, was evidence tending to show that the notes had been duly protested, and the defendant duly notified thereof. The defendant understood that the maker of the two notes had turned out to him these bonds to secure him against his liability as endorser of the notes. On this understanding the defendant had the right to use the bonds and the avails received therefrom to discharge such liability. But if his liability as endorser had not become fixed, and the defendant did not understand that he was holden for the payment of the notes, he had no
The order given by the defendant to the plaintiff in regard to the bonds and the avails to be received therefrom was, therefore, properly received in evidence and considered on this point. The court, not having received and considered any inadmissible testimony, and only testimony having a tendency to establish that the defendant was duly notified of the presentment, demand and non-payment of the note in controversy, the finding of due notice therefrom by it cannot be disturbed. If it were a question of waiver of a right by the defendant, it is correctly urged that it must be shown ’ that the party against whom the waiver is to operate understood his legal rights in the premises. But this testimony was received and considered upon the question of whether the defendant had been seasonably notified of the due presentment, demand and non-payment of this note. He testified that he thought at some time he received notice of its protest. The testimony, received and considered, bore upon whether his acts and conduct, in matters related to his liability upon the note, showed that-he received such notice seasonably. They had a tendency in that direction. It was competent for the court to find therefrom that he was
fudgment affirmed.