Seymour v. Brainerd

ROSS, C. J. I. The amended declaration took effect — 326 — as of the time when the suit was brought. Dana v. McClure, 39 Vt. 197. On demurrer by the plaintiff, the court correctly adjudged the defendant’s plea of the statute of limitations to the first count of the amended declaration insufficient. The defendant insists that the court should have entertained his motion to dismiss this count because it brought upon the record a new cause of action. Before filing this motion he had waived his right to have this count of the amended declaration dismissed, by pleading the statute of limitations thereto. Blodgett v. Skinner, 15 Vt. 716; Luce v. Hoisington, 56 Vt. 436; Sherman v. Johnson, 58 Vt. 40. Changing and amending his pleadings, under court rule nine, did not remove the waiver effected by pleading the statute of limitations. The case having been continued at the term at which he filed his plea of the statute of limitations, court rule nine gave him the right to change and amend his pleadings within thirty days after the continuance. By the rule he could have such changed or amended pleadings filed and stand for consideration without obtaining leave from the court. But the rule does not profess to determine the legal effect of such changed or amended pleadings. The legal effect of such change, or amendment is to be determined by the court from the substance of the respective pleas, and the order and time in which they were filed. Such change or amendment did not nullify a waiver already created by his pleadings on file. On this-ground his motion to dismiss was properly denied. II. The court did not err in refusing the testimony offered to show the intention of the defendant’s attorney in filing the pleas as he did. His pleas, placed on file, were-to be given their legal effect. The pleader’s intention was-to be ascertained from what they contained and the order in which they were filed. They were not necessarily to be given the legal effect intended by the pleader. If such were the case, before answering, every repliant must, ex necessi — 327 — tate, inquire and ascertain the intention and purpose of the pleader in filing his pleas. Such practice never prevailed, and never could be tolerated. Pleas must be held to stand for consideration upon their substance and legal effect, when taken up in the order in which they were filed, and not upon the legal effect which the pleader intended to have given to them. III. The court allowed the protest of the note of March 19, 1883, t0 be received in evidence to show due presentment, demand and non-payment of the note. To this extent it was clearly admissible. From other evidence considered in connection with this, it found notice thereof to the defendant. The protest showed that the notice to the defendant was sent by mail to the plaintiff. Why this was done is not shown. It may have been that the notary did not know the post-office address of the defendant, or the plaintiff may have directed the notary so to send the notice to him, the plaintiff intending to deliver it in person to the defendant, who lived near him in the same village. On this note, under the date of October 1, 1883, there is an endorsement of a payment made by the defendant. Such payment, if made to be applied on this note, was evidence tending to show that the defendant’s liability upon the note had become fixed by due protest and notice thereof to the defendant. Sandie v. Robertson, 7 East. 231; Blodgett v. Durgin, 32 Vt. 361; Bundy v. Buzzell, 51 Vt. 128; Bank of United States v. Lyman, 20 Vt. 666, 679. In the last named case it is said: “ It has often been held that part payment, a promise to pay, or an acknowledgement of liability, by an endorser, after the note becomes due, is prima facie evidence, not only of notice, but of presentment.” It is contended by the defendant that this payment was not made to be applied on this note. It was made in Canada, and the plaintiff gave the defendant a receipt stating — 328 — that it was to be applied on a note in the plaintiff’s possession, of the same amount as this note, made by the same maker, and having the same endorsers, but named in the reverse order, and with only the initial letter of the first name of the other indorser. He claims it was to be endorsed on another note by the same maker, of the same amount, with the same endorsers, and with the initial letter of the other endorser’s first name, as stated in the receipt. Manifestly the note was not present when the payment was made, for, had it been present, the endorsement would have been made and no receipt would have been given. Under such circumstances reversing the order of the names of the endorsers and using the initial letter for the full first name of one might reasonably occur. We should not expect full, entire accuracy of description in every particular. The notes bore different dates. The date of the note on which the payment was to be applied is not stated in the receipt. This note had fallen due and the other had not when the receipt was given. Under these circumstances the receipt does not fully determine on which note the payment is to be applied. In determining this fact we think the county court could properly consider whether the payment was made to be applied upon a note which was due, or on one which had not fallen due, and on which the defendant’s liability, as an accommodation endorser, had not become fixed. This note had fallen due but a few days previously and been presented for payment. The testimony of the defendant was to the effect that he thought he was notified of the protest of this note, but he could not tell when. He did not in terms deny that the notice was seasonably given. The fact that this note was due and had been presented for payment, and that the other note was not then due, and the defendant’s liability thereon had not become fixed, in connection with the defendant’s testimony, had a tendency to show that the endorsement was properly applied, and could be considered — 329 — as tending to show that the defendant was duly and seasonably notified of the protest of the note. ' Nor does the fact that, four days prior, a suit had been brought on this note and the property of the defendant, as was then supposed, attached thereon, remove but rather add to the force of the fact that this note was due when this receipt was given, and the other one not due. The bringing of the suit so soon after this note fell due, against the defendant, is only reconcilable with the idea that the plaintiff then understood that the defendant’s conditional liability on this note had been made absolute by seasonable notice of its protest. The defendant urges that this note was then supposed by the plaintiff to be fully secured by attachment of the defendant’s property, and hence it would be more reasonable to conclude that the plaintiff was demanding payment on the undue note. It is not found that the plaintiff supposed, when he gave the receipt, that this note was fully secured by attachment of property. It is found that the attachment was of no avail. Hence these facts, if they modify, do not take away the force of the fact that this note was due and the other not due. We also think that the order, turning out to the plaintiff, at a later date, the railroad bonds in the hands of Mr. Hendee, with directions to apply whatever was received therefrom in payment of both of these notes, was evidence tending to show that the notes had been duly protested, and the defendant duly notified thereof. The defendant understood that the maker of the two notes had turned out to him these bonds to secure him against his liability as endorser of the notes. On this understanding the defendant had the right to use the bonds and the avails received therefrom to discharge such liability. But if his liability as endorser had not become fixed, and the defendant did not understand that he was holden for the payment of the notes, he had no — 330 — right, against the maker of the notes, the owner of the bonds, to use the bonds to discharge a liability which he did not understand existed. It is not probable that he would undertake to control the bonds, which he then understood had been conditionally placed in his hands by the maker — and apply the proceeds to be received therefrom to the payment of these notes — unless he knew or understood that his liability to pay the notes had become fixed. Hence, the defendant’s act, in attempting to control and apply these bonds and' the avails to be received therefrom, to the payment of these notes was an acknowledgement, or had a tendency to show an acknowledgement, of a subsisting liability resting upon him to pay the notes. The order given by the defendant to the plaintiff in regard to the bonds and the avails to be received therefrom was, therefore, properly received in evidence and considered on this point. The court, not having received and considered any inadmissible testimony, and only testimony having a tendency to establish that the defendant was duly notified of the presentment, demand and non-payment of the note in controversy, the finding of due notice therefrom by it cannot be disturbed. If it were a question of waiver of a right by the defendant, it is correctly urged that it must be shown ’ that the party against whom the waiver is to operate understood his legal rights in the premises. But this testimony was received and considered upon the question of whether the defendant had been seasonably notified of the due presentment, demand and non-payment of this note. He testified that he thought at some time he received notice of its protest. The testimony, received and considered, bore upon whether his acts and conduct, in matters related to his liability upon the note, showed that-he received such notice seasonably. They had a tendency in that direction. It was competent for the court to find therefrom that he was — 331 — duly and seasonably notified of the protest of the note in controversy. fudgment affirmed.