Bank of Cooperstown v. . Woods

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 547 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 548 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 550 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 551 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 552 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 554 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 555 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 556 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 557 1. The only objection made to the reading of the note and protest in evidence, (the $1000 note,) to wit, that it was the note of a firm by the name of "Orrin North," instead of anindividual of that name, was properly overruled. The complaint described the note as made by Orrin North, and this was true, whether it was the firm or the individual. 2. The offer to prove other outstanding notes of the same amount as the one in suit, with the like maker and indorser, and place of payment as the one in suit, and maturing at various times between the months of February and August *Page 558 inclusive, was properly overruled for several reasons. (1.) The defendants had permitted the note in suit to be read without objection to the protest, and without a motion for a nonsuit, and without stating at any time in the progress of the suit that the object of the proof was to show that the notice of protest was too indefinite and might be applied to some one of the numerous notes thus offered to be proved. Nor was there any request to charge the jury as to the effect of the notice of protest, or any objection made thereto. (2.) If the question of the sufficiency of the notice of protest was sufficiently made at the trial, the offered evidence did not go far enough to raise a question on this subject. There was no offer or proof that any one of these various notes (other than the one in suit) was held by the plaintiff. There was no offer to show that any one of them matured at or about the time of the one in suit. And apparently such was not the fact. There was no offer to show that any one of these various notes, (other than the one in suit,) was ever protested. None of them, therefore, could be confounded with the one in suit. 3. The notice of protest, though much more general than a cautious and prudent notary public should ever give, has been held sufficient within the adjudications of our courts. A similar notice was approved in Youngs v. Lee, (2 Kern. 552.) See alsoCayuga Co. Bank v. Warden, (1 Comst. 413.) The case of Cook v. Litchfield, (5 Seld. 279,) is not in point to sustain this defense. In that case all the notes were held by a single party; and the notices of protest were alike except in date, and apparently referred to a day past, (without specifying it,) as the day when the notes matured. This notice uses the present tense; saying the note "is protested," apparently referring to the day of the date of the notice as the day when the note was protested, and describes the amount of the note, and the name of the maker, and is addressed to the indorser. Couple this with the facts (which for the purposes of this case we must assume) that *Page 559 no other note of similar amount fell due on that day; that none of the other notes were held by the plaintiff; that none of them were in fact protested, and the inference is irresistible that the indorser could not have been misled. As the main object of the notice is "to enable the indorser to take measures for his own security," (Edw. on Bills, 289,) it would appear to have been sufficiently subserved by this notice. The principle of the case of Cook v. Litchfield, (5 Seld. 279,) ought not to be extended. The true rule is as stated by Judge DENIO in Home Insurance Co. v. Green, (19 N.Y. Rep. 518,) that the notice should reasonably apprise the party of the particular paper on which he is sought to be charged. When the notice contains the particulars specified in this notice, it can never be known that it does not so apprise him, without proof of extrinsic facts. And when these are presented, we are entitled to look at all of them to see whether he could reasonably have been misled, or prevented from taking prompt and diligent measures for his own security. A printed notice was sufficient. (Cuyler v.Stevens, 4 Wend. 566.) I think the judgment should be affirmed.