Baer v. Leppert

Daniels, J.: The judgment was recovered against the defendants as the indorsers of a promissory note. At the time when it -became due it was owned by the Germania Exchange Bank. The cashier of the bank on that day delivered it to a messenger of the bank for presentment for payment, and by him it was'presented at the place where it w^s made payable to a person answering the name of the maker, and payment was demanded of him, but it was not made. The maker [517] of the note was sworn as a witness upon the trial on behalf of the defendants, but did not deny the evidence of the messenger, or that payment of the note had been so demanded. It was not necessary for the purpose of charging the defendants by a proper demand of payment that it should have been made by the notary. It ivas sufficient that it was done by the agent of the holder, who was the messenger in this case, acting under the authority and direction of the cashier. (Story on Promissory Notes [3d ed.], § 246; Parsons on Bills and Notes [vol. 1], 358; Ninth Mechanics’ Bank v. Spicer, 6 Wend., 443.) The note was on the same day protested by the cashier, who was a notary public, but the notice was not sent to the defendants at their place of residence, and no effort was made to ascertain where that was, beyond the simple act of looking for their names in the city directory, which contained neither of them. Upon that circumstance the notice was addressed and mailed to them in the city of New York, where neither of them in fact resided. This was clearly an insufficient service, for no such effort to discover the residence of the indorsers was made as would justify the course which the notary took. (Greenwich Bank v. DeGroot, 14 S. C., N. Y. [7 Hun], 210.) One of the attorneys for the plaintiff testified that when he went to the defendants’ place of business to serve the summons and complaint, he found a person who said his name was Leppert, that he showed him the note and the summons and complaint, and stated to him, “You did not answer our note the other day in reference to the payment of this note.” He said, “No, we did not; my partner is now in New York trying to raise the money to pay it, and we indorsed it.” Upon his cross-examination he said, “When I showed him the complaint, I told him what it was, giving him the title of the suit, and he said, “I am one of them.” He said, “You need not sue me for the reason you see a lot of lumber here and we are perfectly good.” Another conversation was shown to have taken place with the defendant Rottman, but in that he merely stated that he expected Gebhard, who was the maker, would pay the note. In neither conversation was any promise made to pay the note, and at least that was necessary before the indorsers could be legally held to have waived the omission to serve them with notice. The.rale [518] upon this subject has been stated to be that “the promise, to be obligatory, must be deliberately made, in clear and explicit language, and amount to an admission, of the right of a holder, or of a duty and willingness of the indorser to pay; or, if it is implied from the conduct or acts of the indorser, it must as clearly import a like admission, or duty: such for example as a part payment, of the note. If, therefore, the conduct,' or acts of the indorser be equivocal, or if the language used be of a qualified or uncertain nature, the indorser will not be held responsible.” (Story on Promissory Notes [3d ed.], § 363; 1 Parsons on Bills and Notes, 595-8.) And nothing less than what is here stated to be required has been considered sufficient to waive the indorser’s right to notice, in the adjudged cases. (Duryee v. Dennison, 5 Johns., 248; Trimble v. Thorne, 16 id., 152; Gawtry v. Doane, 48 Barb., 148; Griffin v. Goff, 12 Johns., 423; Miller v. Hackley, 5 id., 375.) The evidence given neither established a promise on the part of the indorsers to pay, nor any unequivocal concession of their liability, from which a promise might perhaps be inferred. The maker of the note, when he was a witness in the case, was asked whether the defendants received any consideration for this indorsement. But the answer was excluded upon the plaintiff’s objection, and the defendants excepted. This evidence was admissible under the portion of the answer which alleged them to have been accommodation indorsers. It had a tendency to show that to have been their relation to the paper. And if they were right in that allegation, then one of the defendants could not bind the other by any promise he might make for the payment of the note. As to that they would not be partners and one could not bind the other by his admissions and statements. The judgment and order should be reversed and a new trial ordered, with costs to abide the event. Davis, P. J., and Brady, J., concurred. Judgment and order reversed, new trial ordered, with costs to abide the event.