Dakin v. Graves

Smith, J. I. Without considering the fact that the instrument in suit is payable "in exchange on New York,” (see 1 Parsons on Notes & Bills, 45 — 7,) it is clear that it cannot be regarded as a bill of exchange, for the reason that it is payable on a contingency ; 3 Kent’s Com. 74. But we think it is , an "order” within the meaning of that term in section 3 of chapter 14, Revised Statutes, which enacts that "the protest of any bill of exchange, note, or order, duly certified by any notary public under his hand and official seal, shall be evidence of the facts stated in such protest, and of the notiee given to the drawer or endorsers.” It is claimed by defendant that this statute "applies only to negotiable paper payable at a specific time and in money but it is difficult to see why the word "order” should have been used, unless the legislature had meant to include under it a class of instruments not comprised under the preceding term "bill of exchange,” as that term would have been a sufficient description of all written orders or requests by one person to another, "for the payment of money, at a. specified time, absolutely, and at all events 3 Kent’s Com. 74. The use of the word "note” would seem to strengthen the construction that the statute was intended to include something more than negotiable paper; see 3 Kent’s Com. 77; Odiorne v. Odiorne, 5 N. H. 315; Cong. Society in Troy v. Goddard, 7 N. H. 430; Parker, C. J., in Wilson v. George, 10 N. H. 445, p. 447, p. 452. The statement that the notary presented "the original draft,” "and demanded payment of the same,” must be taken to mean that a demand was made for payment according to the tenor of the draft, that is, "in exchange on New York.” The ruling upon the reception of the protest was therefore correct. II. Did the holder take proper measures to obtain payment of the drawee at maturity? In the’case of a bill of exchange-payable at a day [48] specially named, it would be sufficient for the holder to present the bill to the drawee and demand payment, but this order was payable upon a contingency which was of such a nature that the holder must of necessity be aware of its occurrence, while the drawee might well be ignorant of it. The event by which Dakin was to become entitled to payment consisted of an act to be performed by himself, not requiring the concurrence or knowledge of either Weare or Graves. In Hicks v. Burns, 38 N. H. 141, the general rule is laid down by Perley, C. J., (p. 151,) that "where the act, or the state of facts upon which the liability of the defendant is to arise is uncertain in its character, and peculiarly within the knowledge of the plaintiff, so that the defendant cannot learn the facts by the exercise of reasonable diligence, ho must have notice before suit;” see, also, Fitts v. Hoitt, 17 N. H. 530. Adopting this statement of the law, we think that the retiring of the notes vras a fact so peculiarly within the knowledge of the holder that he had no right to demand payment of the drawee till he had notified him of his compliance with this condition precedent. As he did not give such notice, he has not made the proper presentment to the drawee for payment, and the drawer therefore is not liable in this action. , III. Plaintiff claims "that the statement of Weare to the notary at the time of demand, that he had no funds for that purpose, is properly proved by the protest, and being proved, any demand or notice to either Graves or Weare would thus be rendered unnecessary.” It is true that the statute makes the protest "evidence of the facts stated in such protest,” but this refers only to "acts within the scope of a notary’s official duty,”'and the notarial certificate cannot be evidence of collateral facts. If payment is not made it is his duty to certify that fact, but he is not bound to state the reasons given for not paying, and, if he does, his certificate is not evidence of them; see Dumont v. Pope, 7 Blackford 367; Maccoun v. Atchfalaya Bank, 33 La. O. S. 342. Without inquiring, therefore, whether the declarations of the drawee, if proved, are evidence against the drawer to show want of funds, we hold that those declarations cannot be proved by the notarial certificate. But if it had been conceded that the drawee had no funds of the drawer at the time of presentment; it might well be questioned whether, to excuse the holder from making presentment to the drawee, it is not necessary to prove the additional fact that the drawer had no effects in the hands of the drawee from the time the order was drawn to the time of presentment; see Richie v. McCoy, 13 Smedes & Marshall 541. IY. Under the circumstances of this case the fact that two of the items in the set-off are demands growing out of a co-partnership matter is not a bar to the recovery of these items in a suit at law. Partners may separate any portion of the partnership affairs from the rest, and adjust that portion, and an action may be maintained upon a promise to pay the sum found due upon such adjustment, notwithstanding other partnership concerns remain unsettled. Gibson v. Moore, 6 N. H. 547; see, also, Lyon v. Malone, 4 Porter’s Ala. 497; Collamer v. Foster, 26 Vt. 754; Caswell v. Cooper, 18 Ill. 532. "There may be special bargains by which particular transactions are insulated and separated [49] from the winding up of the concern, and are taken out of the general law of partnership;” Bayley, B., in Jackson v. Stopherd, 2 Cr. & M. 361, p. 366. In the present instance the partners have each, in effect, waived their right to have all'the partnership matters which might come to light after the dissolution adjusted in one single proceeding (in equity;) and have agreed that as to such matters the members of the firm shall regard each other as individuals, and not as partners. And it docs not appear that the outstanding items are so numerous or so complicated that it would be either impossible or difficult to adjust them in a suit at law. In fact, it would seem that if both items were recoverable in this suit the rendition of the judgment would be "an entire termination of the partnership transactions,” and that there is no ground for the objection "that it would be useless for one partner to recover what upon taking a general account he might be liable to refund.” It is true that there was not, and from the nature of the case could not have been, any agreement to pay a specified sum or balance. But the agreement was as definite as the circumstances admitted of, and is just as effectual in changing these matters from partnership to individual transactions as if the amounts had been known and agreed on. The defendant can maintain an action "for a cause which he can show to have been cut out from the partnership by himself and his partners jointly, and to be as completely separated from it as if there had never been any connection between them.” In Rockwell v. Wilder, 4 Met. 556, it was held that where it is ascertained by partners, who are about closing their partnership concerns, that a balance will be due to one of them on a final settlement, although the exact amount of such balance cannot be ascertained, yet if the debtor partner gives the creditor partner a promissory note for a sum not exceeding the amount of the balance which will be due on a final settlement, such note is given on a good and sufficient consideration, and payment thereof may be enforced by an action at law, though the balance is not struck between the partners. There seems to be no good reason why a promise to pay a specified proportion of any items which may hereafter be discovered cannot be the foundation of a suit at law. As there was in this case a special agreement, we need not inquire what the defendant’s rights would have been in the absence of such an agreement; see Fanning v. Chadwick,, 3 Pick. 420; Brown v. Agnew, 6 Watts & Serg. 235. Our conclusion is, that the defendant is entitled to set off his claim against the plaintiff for a share of the undistributed assets, and that he would have had a right to- set off the claim for contribution if he had given notice to the plaintiff before suit of the payment of the firm debts ; but, as it does not appear that he gave any notice, and the payment was a fact peculiarly within his knowledge, he cannot recover contribution for the plaintiff’s proportion of the debts paid. V. For the same reason, want of notice to the plaintiff before suit, the defendant cannot set off the loss on the Illinois bank currency. If the plaintiff had agreed to make good the difference between the par value and the actual value at the time he turned over the currency to the defendant, it might be argued that the market value at that time was a [50] fact equally open to the observation and knowledge of both parties. But it would seem that the plaintiff was to "make up to "the.defendant any loss which the defendant might sustain,” and that might depend on when the defendant parted with the currency, a fact not supposed to be within the plaintiffs knowledge. Verdict set aside. New trial.