Fulton v. Maccracken

Bautol, J., delivered the opinion of this court. This is an action on a promissory note brought by the appellee against the appellant, and one John M. Linn, as partners, constituting the firm of Fulton & Linn. Linn being returned non est, the cause proceeded against the appellant, and this appeal is taken from the judgment rendered against him. In the progress of the trial six bills of exception were taken. The note sued on was for $2000, dated Cincinnatti, July 10th, 1349, made by William Bradley, at ninety days, payable to the order of Sumner Clark, at the office of the Ohio Life and Trust Company, New York; Sumner Clark endorsed the note to Fulton & Linn, who endorsed it, procured the endorsement of the appellee, Maccracken, thereon, for their accommodation, and obtained a discount of the note for their use, at the “Hocking Valley Bank, of Lancaster, Ohio,” of which bank William Slade, Jr., was cashier. Slade specially endorsed the note as follows: “Pay (o J. Punnett, Cashier, or order.— Wm. Slade, Jr., Cashier.” The note was duly presented and dishonored, and being returned to the Hocking Valley Bank, was paid by the plaintiff. To prove the partnership, the appellee offered, at the trial, a record of a suit brought at Cincinnatti, June 1849, by Lyman Fulton and John M. Linn, as partners, under the firm name of Fulton & Linn, against John It. Betts and others; which evidence was admitted by the court without objection on the part of the appellant. To prove the presentment and non-payment of the note, he offered the protest made by the notary public, to the admission of which, in evidence, the appellant took his first bill of exceptions. The protest is in the usual form., stating that “the original promissory note hereto annexed” was presented to one of the clerk’s in the office of the Ohio Life and Trust Co., in the city of New York, and payment thereof demanded of him, which he refused, saying, “No funds.” The only objection made to the protest is, that “it contains no copy of the note presented for verification or identification, but only refers to a note annexed.” — 541 — The Act of 1837, ch, 253, makes the protest of a notary public, duly made, prima facie evidence of the facts stated in it. It is necessary that it should designate or identify the note to which it refers; this is usually done by putting on it a copy of the note. But if the original note itself be annexed, as was probably done in this instance, and be referred to in the body of the protest, that would be sufficient. As it appears, however, in the bill of exceptions, the protest is without the note or a copy of it. But on the back is this endorsement: “Wm. Bradley—note, dolls. 2000—for W. Slade, Jr., Cash’r. Protested Oct. 11th, 1849.—J. P. Giraud Foster, Notary Public and Attorney at Law.” In our opinion this endorsement is a sufficient memorandum to show, that the protest referred to the note sued on, and therefore that the protest was properly admitted as evidence, under the Act of Assembly. The second exception is to the admission in evidence of the notice of protest, given by the notary. No objection is made to the form or contents of the notice, but it is contended the name of the notary ought to have been signed by himself, in his own handwriting, instead of being printed. In our opinion, this exception is not well taken; all that is required is, that the notarial certificate should appear to be the act of the officer. In Monroe vs. Woodruff & Robinson, 17 Md. Rep., 159, we decided that such official acts may be performed by a clerk employed by the notary; his name need not be signed by his own hand; it is sufficient that it be affixed by his authority or direction; he may employ the hand of a clerk for that purpose, or a printing press. The third exception was taken to the admission of the depositions of Giraud Foster, the notary, with reference to the sending of notices of protest. In the argument of the cause in this court, we did not understand the appellant’s counsel as insisting upon this exception, and we think there was no error in admitting the evidence. The fact that the notary’s name was affixed in print, as we have before said, is no valid objection. — 542 — nor do we consider any of the other other objections made by the appellant to this evidence, as valid or supported by authority. The fourth exception presents for our consideration the testimony of the cashier, William Slade, Jr., which, it is contended, was improperly admitted, because it is alleged to be mere vague and indefinite impressions of the witness, without any distinct knowledge or recollection of the facts about which he testified. This exception was very earnestly and ably pressed by the appellant’s counsel in theargument. But after the best consideration we have been able to give the subject, and to the authorities adduced, we are of opinion the testimony was properly admitted. It is impossible to read the witness’ testimony without being struck with his cautious and hesitating manner of stating his recollection and belief. Taking the whole together, however, we think it was sufficiently definite to be submitted to the jury. The main fact which the witness was called to prove was, the sending of notices of protest to the several endorsers of the note. He states, “that the plaintiff took up the note after his liability was .fixed by notice of non-payment, which notice came in same envelope with other notices, and was, as witness thinks, served on the plaintiff by himself.” In answer to the cross-interrogatory by defendant, “Whether the witness had any distinct and positive recollection that he mailed any notices of protest to the endorsers of said note, in the manner and at the time mentioned in his answers, to the direct interrogatories contained in this deposition'?” the witness stated “that while he had no doubt that he did mail such notices, he could not say that he distinctly remembered the precise fact.” This was competent evidence to be submitted to the jury, whose province it was to determine its weight and credibility, and to pass upon its sufficiency to prove the fact sought to be established. We find no error in the ruling below on the fifth exception. The facts testified to by the witness were not in any sens? — 543 — privileged communications from his clients. No rule is better established than “that communications which a client makes to his legal adviser for the purpose of professional advice or aid shall not be disclosed, unless by the consent of the client for whose protection the rule was establised.” But as we have said this case does not come within that rule; the facts testified to by Mr. Corwine, were not derived by him from his clients, under the seal and protection of professional confidence. The sixth exception brings before us the prayers of which the plaintiff below offered two that were granted, and the defendant five, all of which were refused except the fifth, which was granted with a modification. We shall first examine the prayers offered by the defendant:— The first is, that there was no sufficient evidence of notice of non-payment, given to all the endorsers of the note. The second, that there was not sufficient evidence of such notice to the defendant. The third, that there was not sufficient evidence of such notice to the plaintiff. These prayers were properly refused. Even if such notice was necessary to entitle the plaintiff to recover in this case, it may be found in the testimony of the notary and of the cashier, sufficient to be submitted to the jury. The fourth prayer relates to file notary’s name being printed, instead of being written by bis own hand, and is presented by the second exception; it was also properly refused. The fifth prayer, as offered, could not properly be granted, because it ignored entirely the existence of any partnership between the appellant and Linn, of which there was evidence in the cause proper to be submitted to the jury, and was based upon the theory, that the relation between them was merely that of principal and agent, which although the jury might find, it was not competent for the court to assume. We think the objections to the court’s modification of the fifth prayer are not well founded; it placed the case of the defendant before the — 544 — jury, on the questions of agency and of partnership, on as favorable ground as the law entitled him' to. In the Argument of the cause the appellant has contended, that the plaintiff’s prayers were defective in form, and erroneous in substance. The formal objection is supposed to consist in the assumption by the court of the fact of partnership between Fulton and Linn, and of the endorsement of the nfote by them, which ought to-have been submitted to the jury. The prayers are not very artistically drawn, but as we construe them, those questions of fact were left to the jury. In the first prayer, the jury are left to find that the note was “discounted for the use and benefit of the defendants under the firm- name of Fulton a'nd Linn, and that they received the proceeds of said note.” This we think is not an assumption by the court of the existence of the firm; it left to the jury to find the existence of the firm, which they could not do without finding that a partnership existed. The first prayer says nothing about the endorsement by-Fulton and Linn. But that fact was- in no wise material to the proposition contained in the prayer, which was, that the legal result from the facts stated, was that, as between the parties to the suit, the plaintiff was an accommodation endorser, and if so, notice of dishonor to the defendants was unnecessary. We think that the formal objections to the second prayer were also untenable. And from an examination of the authorities cited on both sides, we are of opinion, that the legal propositions contained in both prayers, are sound. The facts stated in the first prayer, if found by the jury, would constitute the plaintiff, as between him and Fulton and Linn, an accommodation endorser,, and if so found, then, as-between them, Fulton and Linn, would be primarily liable on the note, and no notice to them of the dishonor of the note would be necessary to entitle the plaintiff to recover in this suit. What might be the effect of a want of such notice to the prior endorsers, it is not necessary to say, because that question is not involved in these prayers. — 545 — (Decided July 9th, 1862.) We affirm the rulings of the Superior court in all the exceptions, and affirm the judgment. Judgment affirmed.-