Cicotte v. Morse

Campbell J.: IjThe rules of pleading, when applied to justice’s courts, have always been extremely liberal, and we are not disposed to regard the declaration in this case as insufficient. But a cause of action must be as fully proved in one [428] court as in another. And facts which can not be regarded as tending to prove others which are material and necessary to establish a cause of action, can not before a justice, any more than at the circuit, be regarded as sufficient to fix a liability. To charge an endorser, for example, several distinct things are necessary, no one of which can be disregarded, and no one of which can, therefore, when proved, raise any presumption of another. These facts to be proved are not only the making of the contract of endorsement, but presentment of the note at maturity for payment, a neglect or refusal- to pay when presented, a notice giving a sufficient description of the note and distinctly showing its dishonor, and service of such notice within the proper time personally, or at the residence or place of business of the endorser, or by mail where it is properly mailable. These are all legal conditions, which, unless waived, must be strictly complied with, in order to charge the endorser at all. And proof of performance of any one or more of these conditions has no tendency whatever to prove a compliance with the rest. In the case before us it is not seriously claimed that all these conditions, necessary to charge the endorsers, have been proved. But it is claimed that this court has decided that, in such cases, we can not weigh the testimony, and determine whether it establishes any fact satisfactorily or or not. It is undoubtedly true that, where the court below finds facts upon pertinent evidence, we cannot review that finding in this way. To the cases heretofore decided by us on that point we are entirely disposed to adhere. If there is any evidence tending to prove a fact, and the court below regards it as proved, we cannot say it should have required more. But no court has a right to assume a fact without any evidence legally tending to prove it, or to dispense with the proof of every distinctive condition affixed to an agreement. And where a court holds that an endorser may be charged without legal notice, it is an error of law, and not a mistaken view of facts. [429] The justice has certified the evidence in the following terms: “I do certify the following to have been the evidence before me in the above entitled cause.” The objections taken before him, were, that necessary facts had not been proved. We must assume that we have the whole case. And as the endorsers are not shown to have been legally charged, the judgment must be reversed with costs, Christiancy J. concurred.