Central National Bank v. Stoddard

Hall, C. J. The principal questions presented by the seventy-four reasons of appeal in this case are based upon the defendant’s ninety-four exceptions to the finding of the trial court and its refusal to find certain facts as requested. These exceptions are, iri substance, that there was not sufficient evidence to support the following conclusions of the trial court: first, that the notes described in the complaint were duly presented for payment; second, that payment was refused; and third, that notice of dishonor was given to the defendant indorser. Regarding the presentment of the notes for payment, the trial court has found, in effect, that the notes, on the days when they became due, were the property and in the possession of the plaintiff, at its bank, where *336 they were made payable, ready to be delivered up when paid; and that there was no actual oral or written demand of payment made. The facts regarding such presentment are supported by the evidence, and show a sufficient presentment. As the bank owned the notes, and they were payable at the bank, no formal demand was required. United States Bank v. Smith, 11 Wheat. (U. S.) 171. The finding that the notes were not paid is supported by the testimony of R. C. Markham, president of the plaintiff bank, and by the presentation in evidence by the plaintiff of the notes themselves. The plaintiff was not required, in presenting its case, to offer further evidence that the maker of the notes, who was not shown to have been a depositer in the plaintiff’s bank, had not, on the day the notes became due, sufficient funds in the plaintiff’s bank to pay the notes. In the absence of evidence to the contrary, that presented by the plaintiff was sufficient to justify the finding that the bank had not in its hands sufficient funds of the maker to pay the notes. United States Bank v. Carneal, 2 Pet. (U. S.) 543, 549. But evidently the defendant’s chief reliance is upon his claim that the evidence fails to support the finding that the defendant was duly notified of the dishonor of the notes. The finding of the trial court regarding such notice is in substance as follows: Mr. Markham, president of the bank, between the hours of 3 p. m. and 6 p. m. on the days the notes became due, wrote, signed, enclosed in a government stamped envelope, and addressed to the defendant in the city of Middletown, notices of the dishonor of the notes, using therefor blank forms kept by the bank for that purpose, and placed the same with the mail of the bank where such mail was usually kept for forwarding on that day, and which it was the duty *337 of one Slavin, a clerk of the bank, to deposit in the post-office. These notices were mailed in time to reach the defendant on the following day, and were received by the defendant. Upon the trial, Mr. Markham, as a witness, having produced the notes in suit and testified that they were duly presented for payment, testified that on the days they became due he filled in, signed as notary public, and addressed to each indorser, and deposited in the office postage prepaid, and mailed to each indorser, the notices of the dishonor of the notes. Among other questions and answers upon the direct examination of this witness were these: “Q. How was it (the notice) signed? A. By R. C. Markham, notary public. Q. How was it sent to each one of these indorsers? A. By mail, postage paid. . . . Q. How was this notice to Mr. Stoddard addressed? A. To the City of Middletown. Q. What name was on it? A. Mr. O. E. Stoddard. Q. You remember what time of day you mailed those? A. Mailed after close of business on the day. . . . Q. What time was it? A. It was after three o’clock. Q. Is that as near as you can get at it? A. Yes. Q. Before what time—Can you tell? A. It went in our usual mail. ... Q. As to the mailing of the notice as to the first one. What time of day was that mailed? A. In the afternoon. Q. Between what hours? A. Between three and six.” The following are questions and answers upon the cross-examination of this witness: “Q. Who mailed the letters of the bank? A. They were mailed by the clerk. Q. Who was the clerk at that time? A. Edward Slavin. Q. Who stamped the letters at that time? A. Our envelopes are stamped by the government. ... Q. Who took the letters to the post-office? A. The clerk. . . . Q. Who wrote the letters of protest that day? A. I did. . . . Q. Addressed all the envelopes? A. I did. *338 Q. Did you mail them? A. Put them with our mail. Q. Did you mail them? A. I did not put them in the office. Q. Do you know whether they were put into the office of your own knowledge? A. I don’t. . . . Q. You don’t know who put the mail, or carried the mail, to the office on either of those days? [the days when the notices were said to have been sent] Q. I do not.” The clerk, Slavin, though still in the employ of the bank, was not called as a witness, and no evidence was offered to show why he was not called as a witness. The defendant moved for a nonsuit, and the court denied the motion. The defendant thereafter offered evidence, and the defendant himself testified as a witness, but did not testify whether or not he received the notices of protest. It appears from the finding, and it is supported by the testimony of the defendant, that at an interview between Markham and the defendant in relation to the notes in suit, about March 1st, 1908, which was after both notes had become due, Markham said to the defendant: “Now, Mr. Stoddard, don’t do anything hasty. Go slow. Let us handle this matter. We can handle it very much better than you can, and we are working it to get all there is in it”; and that “the defendant, relying upon this statement of the president of the bank, took no action regarding said notes, and took no steps to recover of Holmes, as a prior indorser of said notes, whatever damages the defendant might suffer as subsequent indorser.” By the provisions of the Negotiable Instruments Act regarding notice of dishonor, due notice to an indorser is deemed to have been given by the sender when it has been duly addressed and deposited in the post-office, or in any branch post-office, or in any letter-box under the control of the post-office department. General Statutes, §§ 4259-4276, *339 The question is whether the evidence before us justified the trial court in finding that the plaintiff gave the notice required by these statutory provisions. The statute does not provide how it must be proved that the duly-addressed notice, with postage prepaid, was in fact deposited in the post-office or letter-box. It does not require that some person must be able to testify that he himself so deposited it, or that he saw some one else so deposit it. The fact that the notice was deposited in the post-office or letter-box may be proved like other facts, by either direct or circumstantial evidence. It may be proved by the testimony of the person who deposited it, or by proof of facts from which it may be reasonably inferred that it was so deposited. Because the enclosing of such a notice in a stamped envelope, properly addressed, and the depositing of it in the usual place for mail in a bank or place of business, and the fact that it was taken in due time by one whose duty it was to post such mail, do not of themselves, as a matter of law, constitute the notice to an indorser required by statute, it does not follow that these facts would not be proper evidence to show that those notices which the law says are sufficient were in fact given. In other words, it would not follow that it might not properly be inferred from such facts, and especially in the absence of any evidence to the contrary, that the legal notices had been given. Hastings v. Brooklyn Life Ins. Co., 138 N. Y. 473, 478, 34 N. E. 289; Whitney Wagon Works v. Moore, 61 Vt. 230, 238, 17 Atl. 1007. Although it appears that Mr. Markham did not know who took' the mail from the bank on the days in question, and had no personal knowledge that it was deposited in the post-office or in a letter-box, we think that the trial court, in deciding that the legal notices were in fact given, might properly have concluded, from the evidence presented, that Mr. Markham en *340 closed the notices to the defendant in properly addressed and stamped envelopes, and deposited them in the usual place in the bank for letters to be mailed, and that they were taken from that place by one whose duty it was to post them. It was further proper for the trial court, in reaching its final conclusion that the required notices were given, to consider the fact that when the defendant testified as a witness—after the court in denying the motion for a nonsuit had apparently held that prima facie proof of notice had been presented—he did not deny having received the notices. Presumably he had knowledge regarding this fact, which he knew affected his interests to the amount of $15,000, and yet he was silent when he had the opportunity to speak, and when it was greatly to his interest to say that he did not receive the notices, if such was the fact. His testimony that he did not receive the notices would have been admissible as tending to prove they were not mailed. Presumably he was silent because to speak would not aid his case. Tetreault v. Connecticut Co., 81 Conn. 556, 559, 71 Atl. 786; Wilson v. Griswold, 79 Conn. 18, 22, 63 Atl. 659. The statement of defendant’s counsel during the trial, that no such notices had been received, could not properly have been considered by the court as evidence. The fact found, as above set forth, that in February or March, after both notes had become due, the defendant, on account of his conversation with Markham, was induced to refrain from talcing any action against his prior indorser on these' notes, was also proper to be considered by the trial court in deciding whether the defendant had received notice of the dishonor of the notes. The defendant could not have refrained from taking such action, unless he supposed he could have *341 taken some action by reason of his own liability as indorser. It is urged that the plaintiff’s evidence of notice was insufficient because Slavin, whose duty it was to post the letters, was not called to testify. The court considered that fact, and spoke of it in denying the motion for a nonsuit. The unexplained failure of the plaintiff to call him as a witness did not necessarily render the plaintiff’s proof that the notices were mailed insufficient in law. Very likely Slavin could not have testified that he remembered having taken or posted these particular notices on the days in question. Markham had himself testified that they were mailed: “Went in our usual mail in the afternoon, between three and six ”; meaning—as we have said the court might properly have concluded—that they were taken from the bank to be posted at that time. The evidence presented, in connection with the facts above stated, justified the trial court in finding that the notice, which the statute makes sufficient, was given to the defendant, and the facts found are sufficient to support the judgment rendered. It is found that there was no agreement for a renewal of these notes or any extension of the time of payment, as alleged in the answer; and this finding is sustained by the evidence. The statement of Mr. Markham to the defendant, “Now, Mr. Stoddard, don’t do anything hasty. . . . Let us handle this matter,” etc., made in good faith and without misrepresentation or concealment of the facts, so far as appears, seems to have been nothing more than Mr. Markham’s advice to the defendant. It did not estop the plaintiff from pursuing this action. Clinton v. Haddam, 50 Conn. 84, 86. It was proper to permit the witness Markham to refresh his memory from the written memoranda on the *342 backs of the notes, “Indorsers duly notified,” etc., and signed “R. C. Markham, Notary Public,” made by the witness when the notes fell due. The signatures to the memoranda were alone permitted to be used to refresh the memory of the witness, and the remainder of each of such memoranda was stricken out. Other rulings complained of upon matters of evidence require no discussion. The defendant is entitled to no correction of the finding. There is no error. In this opinion the other judges concurred.