Belden v. Lamb

Chukch, J. During the progress of the plaintiffs proof, and for the purpose of proving that due notice had been given [450] to the defendant of the dishonour of the note in question, he introduced the testimony of A. -8. Beckwith, who testified, that the defendant, in a conversation which he heard, admitted that he had received notice of the non-payment, but at the same time, declared his refusal to pay the note, because the notice, which had been sent by mail, had been misdirected. The defendant claimed, that from this evidence there could be no legal inference that the notice had been received in due time, and that it should not be permitted to go to the jury at all, but that the court, as a matter of law, should declare that the notice was insufficient. If this testimony conduced, in any reasonable degree, to prove, that notice was received by the defendant in proper time, it was rightfully before the jury, to be considered by them. Evidence, to be receivable, need not afford full proof of the fact for which it is offered ; it is enough if it tends to prove — if it proves a single circumstance from which such fact may be fairly presumed. In the present case ; to show that the notice was received in due time, it was proper to prove, that it had been sent, and also that it had been received in fact by the defendant, leaving only the time to be supplied, by direct proof or reasonable inference. If the defendant only insisted upon the misdirection of the letter containing the notice, as his sole reason for refusing to pay the note, without an intimation that he had not received it in reasonable time, this might afford a ground of presumption, not strong, yet legitimate, that the notice had been duly received, although misdirected, and as soon as he would have received it, if it had been directed to him at a different post-office. We presume that his silence in this respect, was urged against him in argument; and can we say, that counsel had no right to urge it ? This motion does not proceed upon the ground that the verdict was against evidence, upon this point of notice ; but that the court erred in permitting the jury to consider it. Whether there is any evidence upon any material point in a cause, is a question for the court; how much it may prove, if admissible, is for the jury. O'Kelley v. O'Kelley, 8 Metc. 437. 1 GreenL Ev. 59. It seems that no additional proof was offered on this point; and therefore, the court, in the final charge, instructed tire [451] jury, that this evidence of Beckwith was not sufficient to authorize them to find that notice had been received by the de- ■ Cendant in due time. If therefore, as the defendant claimed, the sufficiency of the notice proved by Beckwith’s testimony, was a question of law, the court decided it, as such, in his favour. The same principles, to some extent, may be applied to the testimony of Hooker. The question is one of relevancy only. Did the facts proved by him at all tend to show, that Belden had acted with ordinary diligence in making enquiry for the indorser’s place of residence l We suppose that it is well settled, that when certain facts conducing to prove diligence, are either proved or conceded, the question whether they amount to due or legal diligence, is one for the decision of the court alone ; but when the question is, as here, what are the facts, and what was done by the holder in making enquiries, the jury are to decide it. And this is the doctrine of all the cases referred to by the counsel on both sides. Hooker testified, that Belden, after having spoken with him, as the cashier of the Farmers and Mechanics Bank, on the subject of the defendant’s residence, went out of that bank, for the purpose of ascertaining it, and soon after returned, and directed the witness to write the word “ Chickopee” upon the note ; which he did. If this testimony was to stand alone, and be considered without reference to any other facts which were proved in the case, we should probably say, that they did not amount to proof of legal diligence. But this was not all. Other facts were proved, which might have an important bearing upon this question. This note was payable at the Hartford Bank. The defendant, within a few months, had received notices, not only from that bank, but also from the Connecticut River and Exchange banks. The Farmers and Mechanics Bank, from whence Belden went out, with the declared purpose of obtaining information regarding the defendant’s residence, was notoriously within a few rods from the aforesaid banks, where the defendant was known. Would it be unreasonable for a jury, under such circumstances, to infer, that Belden, the holder of this note, a man of business, who knew his duty and felt his interest, did make enquiries of the agents of some of these banks? And if he did, the law would require no more of him. The [452] weight of all this evidence it was the duty of the jury to consider. It presented a mixed question of law and fact. Bateman v. Joseph, 12 East 437. Browning v. Kinnear, 1 Niel Gow 81. (5 E. C. L. 471.) Bank of Utica v. Bender, 21 Wend. 643. Remer v. Downer, 23 Wend. 620. Spencer v. Bank of Salina, 3 Mill 520. The superior court, having admitted the testimony of Hooker, submitted it to the jury, with instructions as to the law of the case ; thus treating the question as one involving both law and fact, to be determined by the jury, under the instruction of the court. A majority of us approve of the course taken in this respect. We certainly do not intend to sanction any relaxation of the rules of law requiring diligence on the part of the holders of negotiable paper. And at the same time, we are not disposed to require of them any extraordinary pains-taking to determine which among the almost countless number of village post-offices in this country, will best accomodate the drawers and indorsers of bills and notes ; especially, when all difficulties on this subject may be so easily removed, by putting the name of the post-office upon the bill or note, when it is drawn or indorsed. Again, the defendant claimed that the discounting of the note in suit by Belclen, was usurious ; and that upon the facts stated in the motion, it was the duty of the court so to have said. Usury is connected only with loans, and not with sales. In all cases where the transaction is in fact a loan, though made to assume the form of a sale pr other disguise, and a rate per cent, beyond that of legal interest, is reserved or taken upon it intentionally, as a premium, the law pronounces it to be usurious. The most frequent expedient of the usurer, is, to cover an actual loan under the pretence of a sale or discount of a bill or note ; and it has been found difficult sometimes to detect the real character of the transaction. It seems now to be well understood, that, if a promissory note be good at its inception, and effective in the hands of the payee against the maker, and is what is called a business note, such note may be sold by the holder, like any chattel or other clmm in artfen. for such price or rate of discount as the parties may sf púlate for, without any presumed imputation of usury, but if the note is only made to raise money upon, and to become effective [453] only by the indorsement of it, and thus is merely accomodation paper, the discounting of such paper at a rate of deduction greater than the lawful interest, is treated as a loan by the indorsee, and will be considered at least as prima facie usurious. The enquiry therefore was, notwithstanding the form of the transaction, whether it was a loan of money by Belden to C. tj- II. Chapin, or the bona fide purchase of a business note at a discount ? And this was a question of fact properly submitted to the jury. Munn v. Commission Co., 15 Johns. R. 44. Nichols v. Fearing, 7 Peters 103. Crain v. Hendricks, 7 Wend. 589. Knight v. Putnam, 3 Pick. 184. Lloyd v. Reach, 2 Conn. R. 175. Tuttle v. Clark, 4 Conn. R. 154. Phelps v. Kent, 2 Day 453. Talcott v. Goodwin, 3 Day 264. Carstairs v. Steen, 4 M. S. 192. Finally, the defendant insisted, that if liable at all, he was so only to the extent of the consideration paid by Belden upon the purchase of the note, with the interest. We may admit the doctrine claimed by the defendant, that as between the indorsee and his immediate indorser, the actual consideration of the transfer may be enquired into. But this principle, if true, is not applicable to the present case. Here the real transaction was between C. <f- H. Chapin, the payees of the note, and Belden, the purchaser. Lamb, the present defendant, was no party to the consideration of the contract of sale : he came in only as additional security for the ultimate payment of the note. The jury have found, that this note was originally a valid note ; and that Belden was the Iona fide purchaser of it. We see not, therefore, why he is not entitled to recover its full value, as well from the surety, as he would have been, if he had sued the makers. Such being the views of a majority of the court upon the several objections taken by the defendant, we shall advise that he is not entitled to a new trial. In this opinion Waite and Hinman, Is. fully concurred.