De La Hunt v. Higgins

Daly, F. J. Wynne a. Alden (4 Den., 163), is a controlling authority as to the insufficiency of the notice. It appeared in that case, that the note was duly demanded, and payment refused, upon the day it fell due, and that the notice was mailed on that day to the defendant, but as the notice was without date, and stated that the note was “ this day presented for payment and payment was refused,” it was held to be insufficient. This was going very far, and farther I think than the policy of the commercial law required, but as the case has not been reversed by the Court of Appeals, it should be conformed to and followed. I do not agree that it must be regarded as overruled by the decision of the Court of Appeals in the Cayuga County Bank a. Warden (1 Oomst., 413), as the question there was solely whether the indorser was or could be misled by the erroneous description of the note. The case is, if any thing, stronger than Wynne a. Alden, as here the notice was dated as if the day before the note fell due, and came near to Ransom a. Mack (2 Hill, 587), where it was dated the day after, and it was said by Beoksoit, J., in that case, that the indorser had a right to presume that the note was demanded the day after it fell due, as in this case he might presume that it was demanded the day before it fell due. The conclusion in Ransom a. Mack was, that the indorser had a right to consider himself discharged, as the notice showed that the holder relied upon a demand that was utterly void, and the same conclusion applies with equal force to this case, for here the notice, bearing date the day before the note was due, was that the note had been “ protested for non-payment, payment having been demanded and refused.” The judgment must be reversed. Brady, J. (after stating the facts). The defendant, M. J. Higgins, the indorser, insists that the notice was not sufficient to [424] charge him, and that the judgment against him should be reversed. He relies upon Wynne a. Alden (4 Den., 163), and Ransom a. Mack (2 Hill, 587). In the former case the notice was without date, but stated that the note had “ this day been presented to the maker for payment, and payment refused.” The question presented was on the face of the notice, no evidence of extraneous facts having been given, in aid of the intrinsic defect in the notice, and the notice was held to be insufficient. In the latter case the notice was dated one day after the day on which the presentment should have been made, and stated that on “ that day” the note was presented. The notice was held to be insufficient. The indorser is entitled to notice of the due presentment of the note, either in express terms or by necessary or reasonable implication from what the notice contains ; and it must appear in one form or the other, or the notice will be defective. (Edwards on Bills, 470; Wynne a. Alden, 4 Den., 163; Ransom a. Mack, 2 Hill, 587; Remer a. Downer, 23 Wend., 626; Cayuga County Bank a. Warden & Griswold, 1 Comst., 413.) In this case there was no intrinsic defect in the notice. It contained all the requisites to charge the indorser, and is unlike the case of Wynne a. Alden (4 Den., 163). If the notice had no date, the evidence in the case of extraneous facts, namety, oí the presentation and dishonor on the 1st July, would be sufficient in aid of the notice, but the date of the notice being the 30th June, one day before the note became due, and the notice asserting that payment had been demanded, was notice to the indorser that on or before the 30th June such presentation had been made. If the notice had stated “ payment on this day having been demanded” it would present the same question considered in Ransom a. Mack (2 Hill, 587), because it would then appear that the demand was made on the day of the date of the notice. I think the authorities referred to are conclusive of the question herein arising upon the contents of the notice. There is nothing in it which either in express terms, or by necessary or reasonable implication, notifies the indorser that the note was presented and dishonored when it became due, and that the judgment should therefore be reversed as to M. J. Higgins.