Clift v. Rodger

Hardin, J.: Failing, upon the trial, to prove that notice of the dishonor of the note was given to the indorser, the plaintiff sought to recover by showing that no notice was necessary, and that the defendant was liable as indorser by reason of having taken security of the maker; and, secondly, because the chattel mortgage was renewed after the maturity of the note; and, thirdly, because the indorser had" accepted part payment upon the note after knowledge of want of protest, and that, therefore, there was a waiver thereof. When notice of the dishonor is not given to the indorser, “ imjwry is presumed until the plaintiff, by proof on his side, removes all chance of damage.” {Smith v. Miller, 52 N. Y., 548, opinion of Rapallo, J.; Commercial Bank of Albany v. Hughes, 17 Wend., 94; Spencer & Sharp v. Harvey, Id., 489.) Therefore, it was incumbent upon the plaintiff to give proof that the defendant, the indorser, sustained no damage nor ran any chance of damage by reason of the failure of the holder of the note to give notice of its dishonor. A complaint against an indorser, which did not aver notice of dishonor, or that notice was dispensed with by the indorser, would be held bad on demurrer thereto, as it would not contain a cause of action. As a general rule, notice of presentment and non-payment must be given to an indorser as a condition precedent to a recovery against him. The exceptions to this rule are laid down in the cases in this State to be where : (1.) The indorser has taken a general assignment of the maker’s property. (2.) Where there has been a waiver of notice of protest, or it clearly appears that the absence of notice did not, and could not work injury or damage to the indorser. {Spencer v. Harvey, supra ; Mechanics' Bank v. Griswold, 7 Wend., 168; Sea42 cord v. Miller, 13 N. Y., 55 ; Otsego Co. Bank v. Warren, 18 Barb., 291; Gawtry v. Doane, 48 id., 156 ; Smith v. Miller, supra; see, also, French's Executors v. Bank of Columbia, 4 Cranch, 162.) The question presented sharply in this case is, can a holder recover when he does not prove notice of dishonor, and seeks to bring himself within one of the exceptions, without averring, the fact or facts necessary to constitute the exception? We have seen that without such proof the holder has no cause of action. The burden of proof of the fact or. facts which dispense with notice of dishonor is cast upon the plaintiff. With averment of giving of notice of dishonor he is at liberty to prove it. Without such averment he would not be at liberty to make proof of the notice. In case he is not able to make proof of notice of dishonor, he needs to prove other “fact or facts,” and to that end he should aver the fact or facts which form an essential part of his cause of action. Our system of pleading is regulated by statute, and we, therefore, turn to the Code of Civil Procedure to learn the office of the complaint. We find section 481 declares what the “ complaint must contain, ” viz., a plain and concise statement of the facts constituting each cause of action without unnecessary repetition.” The late revision changed the word “ shall ” to “ must,” as we suppose for the purpose of making the language more imperative. (See Throop’s note to § 481, Oode of Civil Procedure and § 142 of Code of Procedure.) If the “ fact or facts, ” as we have seen, constitxrting a part of the plaintiff’s cause of action, had been averred in the complaint, the defendant would have had an opportunity to admit or deny and answer thereto, and thus joined an issue, if he elected in respect thereto, preparatory to the trial. The proof we have seen was essentially a part of the plaintiff’s case, and without such “ proof he could not recover,” and without an averment of the “ fact or facts ” constituting his cause of action he ought not to be allowed to make the needed proof. In a similar case the Superior Court, all the judges concurring with Duke, J., in-Garvey v. Fowler (4 Sandf., 667), held that as the plaintiff would be bound to prove such “ fact or facts,” he must aver them in his pleading. We are referred by the learned counsel for the respondent to Tebbetts v. Dowd (23 Wendell, 379), in which [43] Cowen, J., refers to the rule contended for by the respondent, and says there is a conflict in the authorities, and that the balance seems to be that where there is a waiver you may aver notice, and then prove a promise or other equivalent act of waiver. In that same case Bronson, J., says, at page 412, the question of wai/oer does not arise. The case does not seem to pass authoritatively upon the question here presented. Besides, it arose before the Codes, and the observations made there do not answer the views expressed above. In Crandall v. Clark (7 Barbour, 171), ‘Gridley, J., says: “To allow a party who had averred the actual performance of a condition precedent to show an excuse for its non-performance, would be contrary to the first principles of pleading. The object of pleading is to inform the adverse party of the facts relied upon by the pleader, to enable such adverse party to meet them by opposing proof. The better opinion, therefore, is notwithstanding some cases that seem to look the other way, that as a general rule an averment of performance will not be sustained by evidence of a legal excuse for non-performance.” This case and the doctrine thereof are approved by Allen, J., in Oakley v. Morton (11 N. Y., 33), and many other cases cited there to sustain it. (See also Shultz v. Depuy, 3 Abb. Pr., 252 ; Hill v. Varmet, 3 Green, 253.) The principle is also reasserted by the Court of Appeals in Tooker v. Arnoux (76 N. Y., 397), where a complaint was held not to contain a cause of action, which omitted to state facts which were conditions precedent to the defendant’s liability upon his acceptance. No amendment was allowed in that case, but the judgment was reversed without any attempt to conform the pleadings to the facts proven. The referee erred in receiving evidence to establish essential facts constituting a part of the plaintiff’s supposed cause of action, which were not averred in the complaint. Ye ought to reverse. Ju Igment reversed and a new trial ordered before another referee, wdth costs to abide the event. Talcott, P. J., and Smith, J., concurred. So ordered.