Ward v. Perrin

By the Court, E. Darwin Smith, J. When the promissory note upon which this action was brought was made, the maker and indorser both resided in Rochester, and the note was dated at that place and discounted at. the plaintiffs’ bank, which was also kept in Rochester, where the plaintiffs also resided. [98] [Monroe General Term, March 1, 1869. The plaintiffs had the right, when the note matured, to assume that the defendant still resided in Eochester, and to act accordingly in taking the requisite steps to charge him as indorser; unless they knew that in the meantime he had changed his residence. The information on this point possessed by the notary who protested the note, must be deemed information possessed also by the holder of the paper, at the time of its maturity. The notary demanded the payment, of the note properly, and gave the proper notice to charge the defendant as indorser, addressed to him at Eochester, and deposited it in the post-office at Eochester, so addressed, with the postage prepaid. The indorser was therefore clear-ly charged and duly fixed as indorser, unless the plaintiff or notary knew that the defendant did not then reside in Eochester, but had, during the time the note was running to maturity, removed to Bergen. This fact was chiefly controverted at the trial, and the' question was fairly submitted to the jury, who have found for the plaintiff,-expressly on this' issue, which, it seems to me, is entirely conclusive. The charge of the judge upon this point was entirely correct, and the finding of the jury fully warranted by the evidence. It was also submitted to the jury, whether the notice addressed to-the defendant, apprising him of the non-payment of the note by the maker, was duly sent from the Eochester post-office to him, and received by him at Bergen, bis place of residence, and the jury have found against the defendant on this issue. I do not see why the verdict is not entirely right; and I can see no error in the charge, or in any direction or decision of the circuit judge during the progress of the trial. The motion for a new' trial should therefore be denied, and judgment, ordered upon the verdict. Hew trial denied. E. D. Smith, Johnson, and J. G. Smith, Justices.]