author: By the Court. Bosworth.—The Hoffman, J.—It

text:
    Cook v. Litchfield.
    A notice to the endorser of a note, dated on the day such note matures, stating, that a note made by the actual maker thereof, naming him, and the date of the note and its amount, and that it is endorsed by the person to whom such notice is directed; and also stating, that such “ note was, on the day that the same became due, duly protested for non-payment, and that the holders look to you for the payment thereof,” is sufficient to charge such endorser, unless it is made to appear, that he was the endorser of other notes, then outstanding, made by the same maker, of the same date, and for the same amount.
    When, in such a case, a notice, which is sufficient in the absence of proof of any such extrinsic facts, is, by such proof, rendered defective, by reason of not being sufficiently full in its description of identifying particulars, the plaintiff may prove other extrinsic facts, existing and known to such endorser at the time of his receipt of the notice; and if, on construing the notice in the light of all such extrinsic facts, there' can be no reasonable doubt, that the endorser knew that the notice related to the note maturing on the day of the date of such notice, it will be held sufficient.
    If there be a conflict of evidence, as to the existence of the alleged extrinsic facts, or as to the defendant’s knowledge of them, the questions of fact must be determined by the jury.
    When there is no conflict of evidence, as to either of those facts, the sufficiency of the notice is to be determined by the Court.
    A general verdict, ordered for the plaintiff, will not be set aside, merely because the Judge, at the trial, submitted to the jury special questions, and which they answered affirmatively, when, upon the evidence given, the Judge might have ruled, with propriety, that the propositions, which the answers of the jury to such questions affirmed, had been satisfactorily established, and entitled the plaintiff to a verdict.
    (Before Bosworth and Hoffman, J. J.)
    Heard, November 11th;
    decided, November 28th, 1857.
    This action comes before the General Term, on a verdict for the plaintiff, taken, subject to the opinion of the Court on questions of law directed to be heard at the General Term, in the first instance. It is brought by Edward Cook, as plaintiff and endorsee, against Elisha C. Litchfield, as defendant, and as payee ahd endorser of three promissory notes, each of the same date and amount, and each being dated, “ Detroit, April 2d, 1849,” each made by “ J. L. Carew,” and each payable, with interest, to the order of the defendant, “ at the Bank of Hew York, in the City of Hew York,” one at ten, one at eleven, and one at twelve months from its date. The controversy relates, chiefly, to the sufficiency of the notices, served on the defendant, to charge him as endorser. The action was tried in December, 1856, before Oh. Justice Oakley and a jury.
    The plaintiff’s counsel, after opening the case to the jury, put in evidence the three promissory notes, mentioned in the complaint, being as follows:—
    “ Detroit, April 2d, 1849.
    “$740.
    “ Ten months after date, I promise to pay, to the order of E. 0. Litchfield, Esq., at the Bank of Hew York in the City of Hew York, seven hundred and forty dollars, value received, with interest. J. L. Carew.”
    (Endorsed) “E. C. Litchfield,
    G. W. Byckiian.”

      “Detroit, April 2d, 1849.
    “$740.
    “ Eleven months after date, I promise to pay, to the order of E. 0. Litchfield, Esq., at the Bank of New York in the City of New York, seven-hundred and forty dollars, value received, with interest. J. L. Carew.”
    (Endorsed) “E. C. Litchfield,
    Gr. W. Ryckmah.”
    “ Detroit, April 2d, 1849.
    “$740.
    “ Twelve months after date, I promise to pay, to the order of E. 0. Litchfield, Esq., at the Bank of New York in the City of New York, seven hundred and forty dollars, value received, with interest. . J. L. Carew.”
    (Endorsed) “E. 0. Litchfield,
    Gr. W. Rygkman.”

    It was also stated and admitted, that there was a fourth note, similar, except as to time of payment, yhieh was gqq held by the plaintiff, being in litigation in another suit between the same parties, such fourth note being as follows:—
    “Detroit, April 2d, 1849.
    “$740.
    “Nine months after date, I promise to pay, to" the order of E. C. Litchfield, Esq., at the Bank of New York in the City of New York, seven hundred and forty dollars, value received, with interest. J. L. Carew.”
    (Endorsed) “E. C. Litchfield,
    Gr. W. Ryckmah.”
    The plaintiff proved, that each of the said four notes, on the day when it became payable, (being severally the 5th day of January, February, March and April, 1850,) was presented at the Bank of New York in the City of New York, by a notary public, and payment thereof demanded, of the teller, which he refused; and that, on the following morning, (except the first case, when the following day was Sunday, and then, on the Monday morning next afterwards.) a notice, signed by the said notary public, was deposited in the New York post-office, addressed to the defendant, at Detroit, Michigan; that only one such notice, to the defendant, was sent for each note; that said notices consisted of printed blanks, filled up. in manuscript, and there is a blank space of several lines, in the printed blanks, between the words “ dated” and “endorsed;” and that the notices produced, by the defendant’s counsel, and in evidence on the trial, are the same which were so sent, such produced notices being as follows:—
    “New York, Jan. 5th, 1850.
    “ $740 and interest.
    “ Please to take notice, that a promissory note, made by J. L. Carew, for $740, with interest, dated April 2d, 1849, endorsed by you, was, on the day that the same became due, duly protested for non-payment, and that the holders look to you for the payment thereof.
    “ Your obedient servant, John T. Irving,
    “ Notary Public, Mechanics’ Bank, Attorney and Counsellor, No. 7 Nassau street.”
    “ Mr. E. C. Litchfield, Detroit, Mich.”
    (Postmark) “New York, 7th January, 10 cents. (Superscription) “ Mr. E. 0. Litchfield, Detroit, Michigan.”
    “ $43 60 interest.
    740 00
    $783 60” “ New York, February 5th, 1850.
    “ Please to take notice, that a promissory note, made by J. L.' Carew, for $740, with interest, dated Detroit, April 2d, 1849, endorsed by you, was, on the day that the same became due, duly protested for non-payment, and that the holders look to you for the payment thereof.
    “ Your obedient servant, John T. Irving,
    “Notary Public, Mechanics’ Bank, Attorney and Counsellor, No. 7 Nassau street.”
    “ E. C. Litchfield, Esq., Detroit, Michigan.”
    I (Postmark) “ New York, 6th February, 10 cents.” . (Superscription) “ Mr. E. C. Litchfield, Detroit, Michigan.”

      “ $47.91 interest. 740.00
    $787.91
    “ New Yoek, March 5th, 1850.
    “ Please to take notice, that a promissory note, made by J. L. Carew, for $740,and interest, dated Detroit, April 2d, 1849, and endorsed by you, was, on the day that the same became due, duly protested for non-payment, and that the holders look to you for the payment thereof.
    “Your obedient servant, John T. Ieving,
    “ Notary Public, Mechanics’ Bank, Attorney and Counsellor, No. 7 Nassau street.”
    “ E. C. Litchfield, Esq.”
    (Postmark) “ New York, 6th March, 10 cents.” (Superscription) “ Mr. E. C. Litchfield, Detroit, Michigan.”
    “ $740 and interest. New York, April 5th, 1850
    “ Please to take notice, that a promissory note, made by J. L. Carew, for $740 and interest, dated April 2d, 1849, endorsed by you, was, on the day that the same became due, duly protested for non-payment, and that the holders look tó you for the payment thereof.
    “Your obedient servant, “John T. Ieving,
    “ Notary Public, Mechanics’ Bank, Attorney and Counsellor, No. 7 Nassau street.”
    “ Mr. E. C. Litchfield, Detroit.”
    (Postmark) “ New York, 6th April, 10 cents.” (Superscription) “ Mr. E. 0. Litchfield, Detroit, Michigan.”
    It was admitted by the counsel for both parties, that the defendant lived in Detroit, Michigan, at the date and endorsing of the notes, and thence, until the time of the last notice; that his residence was there; and that the general residence of Joshua L. Carew, the maker of the notes, was in Detroit, during the same period.
    The defendant’s counsel objected, in time, to the admission, in evidence,, of the said notices of protest on the notes in suit, on the ground, that said notices were insufficient on their face, in not" properly nor sufficiently describing nor identifying the particular notes referred to. The Court overruled the objection, and the defendant thereupon excepted.
    It appeared, at the trial, that the four notes were drawn, signed and endorsed at Detroit, and, subsequently, delivered by the maker, J. L. Carew, to Garret W. Ryckman, in, and who then resided in, the City of Hew York, for hops previously sold by Ryckman to Carew, for, and, in fact, used in a brewery at Detroit. That, at the times when such hops were so bought and used, the defendant had such an interest in the business of that brewery, as would make him and Carew liable, as partners to third persons, for articles bought for and used in conducting the business of such brewery; but it did not appear, that Ryckman knew that fact when he sold the hops or received the four notes.
    By an agreement, dated the 1st of January, 1849, prior to the cjate of the notes, but subsequent to the purchase of the 'hops, a partnership was formed between the defendant, J. L. Carew, Geo. W. Barnes and B. Hubbard, all, then, of Detroit, for the prosecution of the brewery business. The property and assets of the business, in which the defendant was then interested with Carew, was transferred to the new firm, and, in consideration of that, among other things, the new firm agreed to issue their notes, to the amount of $10,000, and apply the same, or the avails thereof, to the payment of outstanding liabilities against the old concern of Carew. But a small part of that amount was so issued or applied.
    When the testimony on both sides was concluded, the defend- - ant’s counsel moved to dismiss the complaint, on the grounds—
    1. “ That the defendant is an endorser, and can be sued only as an endorser, and cannot be made a maker.
    2. “To make the defendant liable, for the purchase of the hops mentioned in the complaint, the plaintiff should have sued as the assignee of Ryckman, as to the claim for the hops. And the proof is, that he is only the holder of the notes,- and there is no allegation or proof that he is the assignee of Ryckman, as to the claim for the -hops.
    3. “ If the defendant was a partner of Joshua L. Carew, and, as such, a maker of the notes, and not entitled to notice of protest, Carew should be a party to the suit.
    4. “ If Bela Hubbard was a partner, he should be made a party to the suit.
    5. “ The plaintiff, having failed to prove notice, to the defendant, of the protest of the notes, as endorser, he cannot charge him as a maker of the notes.
    6. “No partnership, between the defendant and Carew, is proved.
    7. “ The notices, given to the defendant and above contained, were insufficient to charge him, as endorser, by the laws of New York.
    8. “They were also insufficient to charge him, as endorser, by the laws of Michigan. And the laws of Michigan govern the contract of endorsement; and the defendant is, therefore, not liable as endorser.”
    His honor, the presiding Justice, said, “The plaintiff sues the defendant as endorser and means to hold him as endorser, and insists that the defendant knew which note the notices of protest related to. The defendant insists that the description of the note, contained in the notice, is imperfect. The plaintiff then proposes to show that the defendant knew, when each notice was received by him, to which note it referred.
    “ The counsel for the defendant claimed that the notice must, affirmatively, convey the notice of protest, and designate the note protested, with such particularity as to show, on its face, what note was due.

      “ The counsel for the plaintiff then proposed to submit to the jury a single question, as to each note, viz., whether the defendant, at the time he received the respective notices of protest, produced by him, knew which note each notice referred to ? and then to take a verdict, subject to the opinion of the Court at General Term.
    “ The counsel for the defendant objected that there was no question for the jury to pass upon, and renewed his motion to dismiss the complaint, on the grounds, as above stated.
    “ The Court denied the motion to dismiss the complaint, to which the defendant’s counsel excepted. And the Court ordered the questions hereinafter stated to be submitted to the jury; to which the counsel for the defendant excepted, on the ground that the cause presented no such questions for the jury, and that there was no evidence authorizing a verdict for the plaintiff on such questions.
    “ The defendant’s counsel also asked the Court to instruct the jury, that there was no evidence, authorizing a verdict in the affirmative, on any of said questions; which the Court refused, and the defendant’s counsel thereupon excepted.”
    The counsel for the respective parties having addressed the jury, the following questions were submitted to them by the Court, viz.:—
    “ 1. Did the defendant^ when he received the notice dated 5th February, 1850, know that it was intended to inform him of the presentment and non-payment of the note dated April 2d, 1849, payable in ten months ?
    “The jury answered, Yes.

      “ 2. Did the defendant, when he received the notice of 5th of March, 1850, know that it was intended to inform him of the presentment and non-payment of the note dated April 2d, 1849, payable in eleven months ?
    “The jury answer, Yes.

      i “ 3. Did the defendant, when he received the notice of the 5th of April, 1850, know that it was intended to inform him of the presentment and non-payment of the note dated April 2d, 1849, payable in twelve months ?
    “The jury answer, Yes.
    “ The Court then directed a verdict for the plaintiff, for $3415.72 damages, subject to the opinion of the Court at General Term, on a case to be made, to be heard there in the first instance, with liberty to the Court to dismiss the complaint if so advised, and with the liberty to either party to turn this case into a bill of exceptions. Judgment suspended meantime.”

      Wm. Curtis Noyes, for plaintiff.
   I. This Court, on the previous hearing, disposed of all the questions presented upon the facts as they then appeared, and nothing now remains open, so far as those facts are concerned, except the question, whether the notice to the defendant, as the endorser of the notes in suit, was sufficient. (Cook v. Litchfield, 5 Sandf. S. C. 330; S. C., 5 Seld. 279.)

n. The notes, in suit, were given for a debt contracted by a firm of which the defendant was a dormant partner, and for which debt he was liable.

HI. He received an assignment of all the effects of the firm, and the one which succeeded it, and agreed to pay the notes in suit, and is bound to pay them under that agreement, as well as under the agreement of June 15th, 1852.

IV. The evidence, to apply the respective notices of protest to the several notes, was competent, and the jury have found that the notices of protest did actually communicate, to the defendant, notice of the presentment and protest of the notes in suit, as they severally became due, and their finding, is conclusive on the question of notice. (Cayuga Co. Bk. v. Warden, 1 Com. 413; S. C. 2 Seld. 19.)

Chas. Tracy, for the defendant, argued, among others, the points following, viz.:—

I. The notices of protest were insufficient. (5 Seld. 279, Cook v. Litchfield.)

II. The special findings of the jury, that the defendant knew, in each case, which note was intended, should be set aside, or treated as a nullity. (1) The Court erred in submitting those questions to the jury, and the defendant took an exception, No evidence, of any sort, had been given to show the fact of the defendant having such knowledge; and notice in these cases is to be proved, not presumed. (Parson’s Merc. Law, 115; 5 Seld. 279, Cook v. Litchfield; 2 Hill, 587, 595, Bansom, v. Mack) (2) The verdict on those questions is wholly unsupported by evidence. It is against the evidence and against law.

IH. The defendant is not liable as joint maker, with Carew. The complaint alleges, that the defendant and Carew, having been partners under the name of Joshua L. Carew, they afterwards made these notes by that name, to be used in liquidating the debts of such partnership. This allegation is not sustained.

IV. The supposed debt to Eyckman, for hops, is no ground to support the present action. 1. That debt is stated to have been contracted in October, 1846. It was a debt to Eyckman, and not to the plaintiff. 2. The debt was released, on the delivery of these notes. The debt, therefore, has no importance in this case, unless the consideration of the notes should come in question. 3. That debt was not assigned to the plaintiff; and, he being a mere endorsee, cannot sue on the original consideration. (4 Sandford, 93, 97; Morris v. Hudson, 1 Hill, 577; National Bank v. Norton.) 4. Such supposed debt was barred by the statute of limitations before this action was brought. 5. These notes, in the hands of Cook, the plaintiff, are mere commercial paper, having for maker Carew alone, and for endorsers first, Litchfield, and second,,Ryckman. The plaintiff can hold the defendant only upon his contract as endorser.

Y. There is nothing in the case excusing the plaintiff from giving due notice of dishonor, or rendering defendant liable, without such notice. 1. The articles of partnership between Carne, Carew, Litchfield and Hubbard, make no provision for such notes as these. 2. At the date of those articles, (1st January, 1849,) the only debt to Ryckman outstanding against Carew, or against the Detroit brewery establishment, amounted to barely $43.05. 3. The agreement between Carew and the defendant, made 15th June, 1852, has no influence on this question. These notes were past due and dishonored long before that agreement was made, as they matured in January, February, March and April, 1850. The defendant in June, 1852, being already discharged of his conditional obligation as endorser, could not be made absolutely liable by any thing in that agreement. Hor is that agreement a general assignment of Carew’s property, but only of certain specified property. (13 Barbour, 163, 165, 166; Bruce v. Lytle) 4. Nor does the obligation of the defendant, to release Carew, relate to any transactions except to those of the firm and firms, containing Hubbard or Carne; and a mere promise to the maker of a promissory note to indemnify him, does not change the contract of the endorser with the holder of such note.

VI. If any action upon these notes would lie against the defendant, by reason of any of the alleged copartnerships or transactions with Carew, or with Carne, Carew & Co., the present action must fail, for defect of parties. If the defendant is alleged to be a joint maker with Carew, as a member of the supposed firm of J. L. Carew, then Carew must be joined as co-defendant. If the defendant is alleged to be a joint maker with Garew, Game, and Hubbard, as a member of the firm of Carne, Garew & Co., then Garew and Hubbard must be joined as co-defendants. This objection was duly taken by the answer, and on the trial.

VII. On the whole record, judgment should be given for the defendant, and the complaint should be dismissed, under the stipulation contained in the case.

By the Court. Bosworth.—The

defendant is the payee and endorser of four several promissory notes made by I. L. Garew, and dated, “ Detroit, April 2d, 1849.” Each is for the sum of $740, with interest. All are of precisely the same terms, except that one is payable nine, one ten, one eleven, and the other twelve months after date. This action is brought on the three notes which matured last.

Each note, on the day it matured, was duly presented for payment, and payment of it was demanded and refused. Each note was, therefore, properly and duly protested. The important question is, was sufficient notice thereof given to the defendant, as endorser, to charge him ?

A notice, in each case, was mailed on the proper day, accurately directed, and was actually received by the defendant.

The notice, inasmuch as it stated that the note to which it referred was “ duly protested for non-payment, on the day that the same became due,” was sufficient to charge the endorser, if good in other respects. That has been finally and definitely determined, in an action between these parties upon the notes in question. {Cook v. Litchfield, 5 Seld. 279-291.)

The notes, after being endorsed by the defendant, at Detroit, were returned by him to the maker, who first negotiated them in the City of New York, by delivering them there to one Ryckman, who endorsed them to the plaintiff. The endorsements receiving their first vitality as contracts from the negotiation of the notes by the maker in New York, the law of New York must determine the sufficiency of the notice in each case.

We start, then, with the propositions duly established, that there was a valid presentment and protest of each note, and that a notice was served in time to charge the endorser, and that each notice was sufficient to inform him, that the note to which it referred had been, presented for payment on the day it became due, at the proper place, and that payment had been refused on being then and there demanded.

It has already been decided by the Court of Appeals, that in determining the sufficiency of the notices from their contents, and in view of the mere fact, that there were four such notes as have been described, the notice first served was sufficient to charge the defendant, as endorser of the first note, (meaning by first note, the one which first matured,) and that neither of the-other notices was sufficient to charge him as endorser of either of the other three notes.

The Court of Appeals, in the opinion delivered, say that the notice first served was sufficient to charge him as endorser of the first note, because it informed him that a note, made by J. L. Carew, for $740, with interest, dated April 2, 1849, and endorsed by him, was, on the day the same became due, duly protested for non-payment—only one of the four had fallen due at the date of the notice. “ The notice pointed out with sufficient certainty which of the four notes had then been dishonored, and distinguished it from the other three, by reference to the time of its maturity” (5 Seld. 287).

This being so, the defendant, when he received the second notice, dated on the day when the second note matured, knew that it did not refer to the third or fourth note, because neither of them had then become due. Yet it notified him of the dishonor of a note which had become due, and by language which informed him that it did not refer to the third or- fourth note.

It, therefore, could only refer, either to the first or second note. He had received, a month previously, due notice of the actual dishonor of the first note: the date of the second notice was one month subsequent to the day of the maturity of the first note, and was on the day the second note matured.

If he knew that the second note matured on the day of the date of the second notice—if he was bound to infer or suspect that the holder of the notes, in causing the second notice to be sent, would act with a view to protect' his interests, and that the notary, in mailing it, was acting in the discharge of his duty—it is difficult to conceive that the defendant could have imagined that it was sent to inform him of the dishonor and due protest of the first note. To indulge in such a conjecture, he must be allowed to forget, or regard it as immaterial, that the first note had been didy dishonored, and that he had been duly notified of it, a month previously: as a notice of the dishonor of that note, it was unnecessary, even if mailed in time, and wholly nugatory, by reason of being mailed too late, to charge him, by force of such notice, as endorser of the first note.

The marginal entries on the second notice, viz.:—

“ $43.60 interest.

“740.00

“$783.60,”

would naturally, as it seems to us, be understood to mean, that interest on the note protested, at the time of the protest to which the notice referred, was $43.60: so construed, it would clearly identify the second note, as the one to which the second notice referred, because no other note of the series could be protested on the day of its maturity, and have, on the day of its maturity, that amount due, for interest accrued.

But the Court of Appeals has determined, that these facts— however persuasive they may be to convince, that the endorser must have known that the second notice referred to the second note—are not, of themselves, sufficient to make it a good notice of the dishonor of the second note, or to charge the defendant, as endorser of it.

The features in the action, as now presented, which distinguish it from the action as it was presented when before this Court, and the Court of Appeals, as reported in 5 Sand. S. C. R.; 330, and 5 Seld. 279, are these:—

On the trial of the present action, Ch. Justice Oakley, before whom it was tried, submitted to the jury, with respect to the second notice, this question:—

“Did the defendant, when he received the notice dated 5th February, 1850, know that it was intended to inform him of the presentment and non-payment of the note dated April 2d, 1849, payable in ten months ?”

The jury answered, “Yes.”

A question in like form, and adapted to each of the two other notices, by describing its date, and the notes maturing on their respective dates, was submitted to the jury, and they answered to each question, “Yes.”

The defendant’s counsel objected to the submission of each of these questions to the jury, on the ground, that the cause presented no such questions for the jury, and that there was no evidence authorizing a verdict for the plaintiff on such questions, and excepted to the submission of the questions. He also asked the Court to charge the jury, that there was no evidence authorizing a verdict for the plaintiff on such questions, and excepted to the refusal of the Judge to so instruct the jury.

The plaintiff’s counsel contends, that it is competent for a plaintiff, when the terms of a notice are equivocal on their face, in such sense, that they do not necessarily identify the note to which it refers, to prove extrinsic facts known to the defendant at the time, in the light of which the notice may be deemed to have informed him of the precise note to which the notice referred; and that, on such facts, and in connection with the notice, it may properly be left to the jury to determine, whether the endorser of the note knew, on receiving the notice, to what note it related.

He also insists, that such extrinsic facts were proved, on the trial of this action, as made the submission of the particular questions put to the jury, in this case, proper.

The latter proposition is denied by the defendant’s counsel. He also insists, that there is no conflict of evidence, in respect to the matters called extrinsic facts, and that, in such a case,'the sufficiency of the notice is a question to be decided by the Court alone, and not by a jury.

If extrinsic facts may be proved to aid a notice, which is defective, because not sufficiently full in its details, and if such facts were proved, in this case, as leave no reasonable doubt that the endorser, on receiving each notice, knew that it referred to the note maturing on the day the notice bears date, a new trial should not be granted, because the question was left to the jury, instead of being decided by the Court, if the jury have determined it, as it was the duty of the Court to have decided it. (Miller v. The Eagle Life and Health Insurance Co., 2 E. D. Smith, 287.)

We will first consider the question, whether extrinsic facts, known to the endorser, may be proved for such a purpose; and, next, the nature and effect of those proved and relied upon, in this action, as being sufficient, to make the notice operate as a good notice to the endorser.

We start with the proposition, settled, in reference to these notices, that, in an action upon either note alone, the notice of protest, dated on the day such note matured, would be sufficient, of long as it was not made to appear that any other note, of that date and amount, had been made by J. L. Carew, and endorsed by the defendant.

It is only by proving the fact, that there was another note, or that there were other notes, outstanding, to which the terms of the notice would be as applicable as to that maturing on the day of the date of the notice, that such notice would be rendered so equivocal, as to be insufficient.

If, therefore, extrinsic facts may be proved, to establish the insufficiency of a notice which would be held sufficiently definite, if these facts had not been proved, it is quite clear, that the effect of such facts may be obviated, by the proof of other facts known to the endorser, which establish, that the notice must have informed him of the particular note to which it referred.

In Cook v. Litchfield, (5 Seld. 289,) the Court say, that, “ in determining whether the description of the note or bill is sufficient, the circumstances of the case, and the defendant’s knowledge of these circumstances, may be taken into consideration; and, therefore, where the notice to the drawer of a bill of exchange, was, that his draft on A B was dishonored, the notice was adjudged to be sufficient, until it was shown, that there was another bill, drawn by the defendant on A B, for which the one in question might be mistaken.”

But the adjudged cases have gone so far as to hold, not only that a notice, which fails to give such details of the note as will, of themselves, identify it, clearly and distinctly from all others, may be sufficient, when construed in the light of facts existing at the time, and known to the defendant; but also, that a notice, erroneous in some of its particulars—and, therefore, calculated to mislead to such extent as errors of that character might tend to produce that result—would be sufficient, when construed in the light of facts which demonstrated, with reasonable certainty, that the endorser knew what note it was to which the note referred, notwithstanding, in some particulars, the notice had misdescribed it.

The Cayuga Co. Bank v. Warden & Griswold, (1 Com. 413, and 2 Seld. 19,) is a case of the latter description.

We think, that extrinsic facts, known to an endorser at the time he receives a notice, may be shown, and that the Court, in' construing the notice and determining its sufficiency, may construe it in the light of such facts; and that if, on being thus construed,’there can be no reasonable doubt that the endorser knew that the notice related to the note maturing on the day such notice bears date, the notice must be held sufficient. This doctrine is not only not repudiated in Cook v. Litchfield, (5 Seld. 289,) but is expressly asserted, and was a point, in judgment, in the Cayuga Co. Bank v. Warden & Griswold.

The only question of substance left, relates to the extrinsic facts proved, and the light they shed upon the terms of the several notices of protest, and the sufficiency of the notices, when construed, with reference to those facts. "

I think we may start with the assumption, that slight circumstances, known to the defendant at the time each successive notice was received, to point it to the note maturing on the day such notice bears date, are all that can be required in a case like the present.

The notice first received, informed him of the dishonor and protest of the first note, (the one at nine months,) and identified and distinguished that note, as the one of the four which had been protested, and to which that notice related.

The notice secondly received, was dated on the day the second note (the one at ten months) matured, and was mailed and postmarked on the next day thereafter. It informed the endorser of the due protest of a note, on the day the same became due, "and, therefore, informed him it did not relate either to the third or fourth note.

There being, in the margin of the notice, the figures and words,

“ $43.60, interest.

“ 740.00"

“ $783.60,”

it might, as it seems to us, be reasonably construed to mean, that interest on the note, so protested, at the time of such protest, and which was the day the note referred to in the notice became due, amounted to $43.60. That could only be true of the second'note, and, so construed, the notice would distinguish and identify that note from either of the others.

The third notice, on a similar construction, would identify the note at eleven months as the one to which it referred, and of the dishonor and protest of which it gave information.

In the Cayuga Co. Bank v. Warden, supra, the notice of protest, in the body of it, described the note as one “ for three hundred dollars.” It was, in truth, a note for $600. In the margin of the notice were the figures “ 600”, without any prefix, except the character “$,” or any addition to indicate for what purpose they were written, or to what they related.

Jewett, J., in 1 Coms. 418, says:—“ Now, having the accessary facts, namely, that this note was the only note in this bank drawn by S. Warden, and endorsed by the defendants, and the intimation conveyed by the figures “600,” upon the margin of the notice, who can doubt but that this notice conveyed to the minds of the defendants the information that this identical note had been dishonored, although it misdescribed the note, as it respects the sum for which it was made, in the body of it? The defendants, knowing the facts stated, on the receipt of this notice could not, as it seems to me, fail to be apprised, by it, that this particular note had been dishonored.”

In the same case, when again before the Court of Appeals, (2 Seld. 26,) Gardner, J., said: “ So the design of the notary, in this case, was to inform the endorser of the dishonor of a particular note. Whether he has succeeded, depends, in like manner, upon the terms of the notice. If the subject is there described so as to be identified, upon proof of extrinsic facts, which, in the language of lord Coke, 'stand with the notice,’ the object will be accomplished, although the description may not be true in every particular; and the defendant would be bound by it, although as dull of apprehension as his counsel proposed to prove him.”

- So it may be said, in this case, with much force, that the defendant knew he had endorsed a note made' by the person described as maker, and of the date and amount named in the notice, and maturing on the day the notice bore date.

Each notice informed him that the note protested was dishonored on the day it matured. And the intimation conveyed by the figures in the margin of the 2d and Sd notices was, that the note so protested was for the sum named, and that the interest on it, at the time of such protest, was the sum so stated in the margin. It seems to us, that he could not suppose either of these notices referred to a note previously protested, and of which protest he had been duly notified.

On this trial, it appeared that the defendant received the notices, and gave so much attention to them that he preserved them and produced them at the trial. It thus appears that he received as many notices as he had endorsed notes; that each successive notice so received was dated and mailed on the proper days to protest each successive note as it matured, and to mail the notice thereof, so as to charge him as its endorser.

Whether he preserved them all, so as to be able to demonstrate, on the trial of an action against him, if sued as endorser of the notes, that he could not tell to what note either of the notices, except the first, related, or because he had no doubt to which note each notice referred, and also had an interest in the notes being paid, beyond that arising from the fact of his having endorsed them—different minds may, possibly, differ in their conclusions.

The facts proved show that the consideration of the notes was a sale of Hops, by Ryckman, (to whom the notes were delivered,) to J. L. Carew, for, and which were used in, prosecuting the business of the Detroit brewery. That at the time the hops were purchased and so used, the defendant and Carew had such an interest in the business of the brewery as would make them liable, as partners to Ryckman, in an action for hops sold and delivered, though Ryckman does not seem to have been informed of that fact.

So long as a cause of action, based on a contract for the sale and purchase of the hops, would not be outlawed, and, by returning the notes after they had matured, the defendant and Carew might be sued, as partners, on such contract; the defendant, as a person originally liable to Ryckman, for the consideration of the notes, had an interest in knowing whether they were subsequently paid.

The notices were convenient memoranda to remind him, both of his liability, as endorser, and of the possibility of his being charged as a party, in law, to the contract for the sale and purchase of the hops.

They might, also, have been, preserved, in the expectation that he would be sued, as endorser, in the Courts of Michigan, in which State he resided, and with the confident expectation, that, although each notice informed him, accurately, that it referred to the note maturing on the day of its date, yet, they would be held insufficient by the Courts of that State, on the mere ground, that they did not, in terms, state, that the notes were presented for payment at the bank at which they were made payable, but only stated, that the notes were “duly protested for non-payment,” on the day that the same became due.

But he had a still further interest in the payment of these notes by Carew.

By an agreement, dated the first of January, 1849, prior to the date of the notes, but subsequently to the purchase of the hops, a partnership was formed between Carew and the defendant, and Geo. W. Carnes and B. Hubbard, all, then, of Detroit, for the prosecution of the brewery business.

The property and assets of the business, in which the defendant was interested with Carew, were transferred to the new firm, and, in consideration of that, among other things, the new firm were to issue their notes, to the amount of $10,000, and apply the same, or the avails thereof, to the payment of outstanding liabilities against the old concern of Carew.

But a small portion of that amount was so issued or applied. Had they been issued and applied to the amount agreed upon, the defendant would have had a pecuniary interest in their application to the payment of the notes in question, and to the absolute extinguishment, by such means, of all personal liability, as a partner of Carew, to Ryckman, for the hops, for which the notes had been given.

We think, on reading each notice, in the light of these facts, that the defendant, as he received each successive notice, instead of being in doubt as to the note to which the notice referred, must have understood it to mean, that a note, maturing on the day the notice bore date, had been on that day protested, and that the holder looked to him for the payment.

Why is an endorser, who is notified of the dishonor of a note for $175, when the note endorsed by him was for $200, or who is notified of the protest of a note for $300, when the one he had endorsed was for the sum of $600, held to be concluded, as to the sufficiency of the notice, on its being proved, that he was endorser of only one note, made by the maker named in the notice, or payable at the place where the notice states the one so protested to have been payable ?

Proof of such a fact, does not enable the Court to give any meaning to the terms of the notice differing from their obvious import, or render their description of the note more accurate.

The object of notice is, to inform the party to whom it is sent, that payment has been refused by the maker, and that he is held Hable. Hence, such a description of the note as will give sufficient information to identify it, is all that is necessary.

It cannot be maintained, that every variance, or omission of a descriptive particular, however immaterial, is fatal. It must be such a variance, or omission, as that the notice will convey no sufficient knowledge to the party of the particular note which has been dishonored. If it does not mislead him—if it conveys to him the real fact, without any doubt—the variance or omission cannot be material, either to guard his rights or avoid his responsibility. (Dennistoun v. Stewart, 17 How. U. S. 606; Bank of Rochester v. Gould, 9 Wend. 279; Snow v. Perkins, 2 Gibb’s Mich. 238; Sasscer v. The Farmer’s Bank, 4. Md. 400.)

Hence, when an endorser receives notice, that a note, endorsed by him, and made by a person who is named, and payable on a specified day, was, on that day, duly protested, he is bound to understand, if he has endorsed but one note, made by such person, that such note has been dishonored, although the notice misdescribes the note, either by stating the note to be larger or smaller than the one he had actually endorsed.

He is not at liberty to regard the notice as telling the truth in every particular, and claim exemption from Hability on that ground, so .long as it states enough to enable him to determine, with the aid of other facts, then known to him, that it refers to the note which it was designed to inform him was dishonored. (Mills v. The Bank of the U. S., 11 Wheat. 376; Bank of Alexandria v. Swan, 9 Peters, 33.)

In the present case, the second notice, for instance, states no one particular inaccurately, and, therefore, was not calculated to mislead, by stating the note protested to be different, in any of its terms, from the note as it actually reads.

The only defect which can be pretended is, that it did not enable the defendant to know whether it referred to a note maturing on the day of the date of the notice, or to one maturing a-month prior thereto.

To this, we think, it may be replied, you could not have supposed it referred to a note maturing one month prior to the date of the notice, because you knew that was dishonored on the day it fell due, and notice thereof was mailed to you the next day, which notice you received, and preserved, and now produce. You also knew, that such a note, and only one such note, matured on the day the notice is dated.

The plaintiff could have no motive to cause a notice to be sent a month after the protest of a note, in respect to which he had done regularly, at the time, every thing essential to charge you as endorser. The notary must be deemed to have been acting in the discharge of his duty, and designing to give you notice of acts which would create a liability on your part as endorser. By referring his notice to the note maturing on the day the notice was dated, he was doing that which was proper and necessary to be done, to fix your liability as endorser of a note maturing that day, and so far as appears, the only one which then matured.

The entries on the margin of the notice, might, reasonably, have been understood to mean, that the sum there stated, as the amount of interest due on the note protested, was the amount due on the day of its protest, and not the amount due one or two months after it was protested.

The statement, as to the amount of interest due, thus understood, could not apply to any note except one falling due on the day the notice is dated.

The same reasoning and considerations apply, to the third notice, with as much force as to the second.

We think the facts proved on this trial lead, irresistibly, to the conclusion, that the defendant could not have been misled nor left in doubt as to the note to which either notice referred. On the contrary, he must have believed and understood, that each successive notice received, was designed to refer to, and to inform him of the dishonor of the note maturing on the day such notice was dated, and that the holders looked to him for payment thereof.

If, on such a state of facts, the Court should determine what knowledge the notice, in the light of such facts, conveyed to the endorser, instead of submitting it to the determination of a jury, the defendant has not been prejudiced by such submission, if it was the duty of the Court to have held the notice sufficient.

The Court, by submitting the question to the jury, must have deemed the evidence sufficient to justify a verdict that the defendant knew, what they have found he knew.

It has done no damage to the defendant, that their verdict shows that, in their judgment, he knew to what note each notice related.

If it was a question of law, to be decided by the Court, on evidence not conflicting, whether the notice was sufficient, the case is properly before the General Term, on a verdict subject to its opinion on questions of law.

We think either notice was sufficient, when construed in the light of all the facts proved, to inform the endorser that it referred, and was intended to refer to, and inform him of the dishonor of a note maturing on the day such notice was dated, and that the holder looked to him for the payment of such note. And that the jury having found, as it was the duty of the Court to have decided, (if the question is to be treated as one to be determined by the Court only;) the defendant was not, in any way, prejudiced by the submission to the jury of the questions, on which they passed, by their verdict.

A judgment must be entered in favor of the plaintiff on the verdict.

Hoffman, J.—It

might be sufficient for me to express my concurrence in the views presented by Mr. Justice Bosworth, and with his conclusion. The fact, however, that a decision of the Court of Appeals is pressed, as settling the case in favor of the endorser, induces me to add some observations.

I agree that the decision of that Court precludes us from saying that the facts, apparent on the face of the notices of protest successively made, were sufficient to charge the endorser with the payment of the note now in suit.

But extrinsic facts and circumstances are admissible in evidence to make clear an equivocal or ambiguous notice of protest, and to show that the endorser could not have failed to attribute the notice to the note in question.

If a notice, apparently sufficient, may be rendered insufficient, by proof of the extrinsic fact, of there being another note to which it could be applied, then proof can be adduced of other facts to meet and repel that conclusion. The right to go out of the notice to overthrow it, cannot be stronger than the right to support it, by the same species of evidence. Slight testimony, under the circumstances of this case, is all that can be demanded, to fix this endorser; and the facts proven on this trial amply warrant the inference, that this defendant, not only was not misled, but could not have imagined, without gross stupidity, that the notices did not refer, in succession, to the notes due in succession.

The fact, now proven, that all the notices in question were preserved by the defendant, and were produced by him at the trial, is enough, in my judgment, (apart from all other facts proven,) to save the present case from the decision referred to, and to support it within principles, admitted in the judgment of the Court. These facts, according to the reports, did not appear on the former trial.

I consider that we have the right to assume, that the previous notice or notices were before the defendant, at the period of his reception of each successive notice. It is, then, impossible but that the information received was pointed, definite and incapable of being misunderstood.

My difficulty has been, whether the questions, put by the learned Chief-Justice, were matters proper to be left to the jury.

The constitution of our tribunals has given the office of applying the law to established facts, to the Court, that .of finding the facts, to the jury.

The question, whether an endorser, asserting that he could not know, from a notice, what note was intended, had not actually matters within his knowledge, which clearly designated the note, may undoubtedly be a matter of fact, to be settled upon evidence, not demonstrative. In such a case, the jury should pass upon it. Admissions, for example, might have been made, and different witnesses have given their respective versions of them. That would be clearly a case within the province of a jury.

The case of Houlditch v. Cauty (6 Scott, 299, 4 Bing. U. C. 411) appears to me a decisive and satisfactory authority upon this point. The action was against an endorser of a bill of exchange. A plea was, that the defendant had not due notice of dishonor. Presentment to the acceptor and dishonor were duly proven. A notice to the defendant was given by a letter, clearly insufficient. And proof was adduced, of a conversation between the defendant and the holders of the bill, in which he expressed his regret that the bill had not been paid.

A verdict was found for the plaintiff. A motion was made for a new trial. The Court hold the letter insufficient notice; but, coupled with the conversation, there was no ground for saying that the defendant did not receive sufficient notice of the dishonor of the' bill. And the Chief-Justice concludes:—“ The jury found, that the notice was sufficient, and we are not disposed to disturb their verdict.” Coltman, Justice, observed: “The jury have found the notice sufficient, and they are the proper judges of the effect of of the conversation,”

In the Bank of Rochester v. Gould, (9 Wendell, 279,) the Judge at the circuit left it to the jury, to say whether they believed that the defendant knew what note it was that had been protested, or had not been misled by the notice. The notice was probably defective. The fact of there being no other note at the bank, and a conversation with the cashier, were the matters adduced in evidence. A new trial was denied. See, also, McKnight v. Lewis (5 Barbour, S. C. Rep. 681).

Whatever, then, may be the rule, as to the right of a Judge to withdraw questions of this nature from the jury, I apprehend it is not matter of law, that a question of knowledge of what note a notice of protest referred to, may not be submitted to it. (Chitty on Bills, 468, note.) The general exception, then, in this instance, cannot be sustained. And it seems to me quite clear, that there was evidence upon which, a jury might be called on to pass, as to this point.


source: Caselaw Access Project

author: By the Coubt. Boswobth, J.—The

license: Public Domain

text:
    Schermerhorn, et al., Plaintiffs and Respondents, v. Niblo, Appellant.
    1. In an action by vendors, to compel the specific performance of a contract for the purchase of real estate, the relief asked will be granted, even though there be a bare possibility, that the title may be affected by existing causes, which may be subsequently developed, provided, the highest evidence of which the nature of the case admits, and amounting to a moral certainty, be given, that no such causes exist.
    2. Thus, when the title of the vendors is that of sole heirs-at-law of a person dying on the 18th of December, 1856, and their contract to sell was made in February, 1856, and the action was tried in January, 1857, and, after thorough search, no will of the deceased had been found, up to the time of the trial, and he died leaving personal estate, worth over $10,000, and his debts and the demands against his estate, so far as ascertained, do not exceed $500, the possibility of discovering a will, or that other debts and demands may be presented to Ms administrator, are not sufficient to deprive the vendors of the right to a judgment for a specific performance.
    (Before Bosworth and Hoffman, J. J.)
    Heard, Nov. 10th;
    decided, Nov. 28th, 1857.
    This action is brought by John and Alfred Schermerhorn, and Maria Graven, by her next friend, against William Niblo, to compel a specific performance by him of his contract with them, of the date of the 19th of February, 1856, to purchase of them a house and lot in West 24th street, in the City of New York. It was defended on the ground, mainly, that he was not bound to accept such a title as the plaintiffs tendered, and were able to give.
    It was tried in January, 1857, before Mr. Justice Duer, without a jury, who gave a judgment granting the relief prayed for, and from that judgment the defendant has appealed to the General Term. Judge Duer’s conclusions of law and of fact were as follows, viz.:—
    “ First.—As matter of fact, I find and decide, that the plaintiffs were the sole heirs-at-law of Peter B. Schermerhorn.
    “ Second.—As matter of fact, I find and decide, that no will executed by him had been found, after thorough search for the same, and that, upon the ground of his intestacy, letters of administration had been granted to George R. J. Bowdoin, upon his estate.
    “ Third.—As matter of fact, I find and decide, that the value of the personal estate of said Peter B. Schermerhorn, was $10,000, and that his debts, so far as known, did not exceed $500.
    “Fourth.—And as matter of law, upon the foregoing facts; the agreement of sale, and the refusal of the defendant to comply with the same, and to accept the deed, and the fact that the said Peter B. Schermerhorn died seized, in fee, of the premises in question, being admitted by the pleadings, I do find and decide, that no proof has been given, on the part of the defendant, of the existence of any debt beyond the amount admitted, nor any reason shown to justify the belief or suspicion that Peter B. Schermerhorn had ever executed a will; the bare possibility that the title which the plaintiffs were competent to give might be defeated, by the future proceedings of creditors, or the production of a will, was, and is, not sufficient ground for releasing the defendant from his agreement, and denying to plaintiffs the relief demanded.
    “Fifth.—And, as matter of law, I do further find and decide, that the plaintiffs are entitled to judgment, decreeing a specific execution of the contract of sale, but without costs, and that judgment be entered accordingly.
    “Dated January 31,1857.”
    The defendant excepted to the decision and finding of the said Justice, on the matters of fact, as stated and contained in the second and third clauses of said decision; also to his decision, as matter of law, contained in the fourth clause; and also to his finding and deciding that the plaintiffs were entitled to judgment, decreeing a specific execution to the contract of sale contained in the fifth clause of said decision.
    Some portions of the testimony are stated in the opinion of the Court.

      G. J. & F. De Witt, for Appellants.
   The decree "of this Court, made at Special Term, should be reversed. Because—

I. The plaintiffs had not, at the time of the tender of the conveyanee to the defendant, and his refusal to accept the same and complete the purchase, nor had they at the time of the trial,, a marketable title to the premises in question.

1. The lands of the deceased could be sold for the payment of his debts, on the application of the administrator, at any time within three years after the granting of letters of administration, and any creditor of the deceased could compel a sale for the payment of debts. The debts of the deceased are thus made a lien upon the land for three years at least. (2 R. S., p. 100, § 1, marginal paging; Laws of 1837, p. 536, § 72; Laws of 1843, p. 228, § 1; Hyde v. Tanner, 1 Barb. S. C. R. 75; Ferguson v. Brown, 1 Bradford R. 10.)

2. The supposed title of the plaintiffs, as heirs-at-law, might be defeated by the production of a last will and testament of the deceased within four years after his death. (1 R. S. 748, § 3.)

The fact, whether there were creditors of the deceased, or whether there was sufficient personal property to pay his debts, or whether he made a will, could not be determined in. this action. No proof or proceedings taken herein would conclude a creditor, nor any person claiming under a will of the deceased, and in such a case a purchaser should not be compelled to take. The exceptions to the evidence on these points were well taken. (Lowes v. Lush, 14 Vesey, 548; Smith v. Death, 5 Madd. 371; Atkinson on Titles, p. 391, etc. 404, etc. 590, etc. See also Pyrke v. Waddingham, 17 Eng. Law & Eq. 534.)

II. But even if it appeared on the trial that the plaintiffs could then give a good title, the defendant should not have been compelled to take.

1. On the first day of May, 1857, when the contract was to be performed, and when the deed was tendered, the administrator had not advertised for creditors to present their claims. It was not then in the defendant’s power to decide, nor could this Court have then determined, with any certainty, the questions of fact upon which the validity of the title depended.

2. The defendant properly refused to take, on the ground that the plaintiffs could not, at that time, give him a marketable title, and he then elected to rescind the contract. If the plaintiffs were unable, on that day, to give a marketable title, the defendant had a right to rescind the contract, and it could not after-wards be enforced against Mm. (Dominick v. Michael, 4 Sand. Superior Ct. R. 374.)

• HI. It is no answer .to these objections to say, that if they prevail, heirs-at-law will be unable to sell, and compel purchasers to take until after the lapse of three or four years from the death of the intestate. Heirs-at-law may sell and convey immediately upon the death of their ancestor, and all difficulties will be obviated by their contracting to sell the title which-they really have, and no other. Purchasers may then determine what they will pay for such a title. It is not pretended, nor is- there any proof in this case, that the plaintiffs professed to sell only the title wMch they had as heirs-at-law of the deceased. The defendant contracted for a good and marketable title, and knew nothing of the character of the plaintiffs’ title.

IY. There should have been judgment for the defendant, and a reference to ascertain the amount of damages, etc., sustained by him.

J. larocque, for Respondents..

By the Coubt. Boswobth, J.—The

plaintiffs are the sole heirs-at-law of Peter B. Schermerhorn, deceased. He died, seized of the premises in question, in fee, free from all incumbrances. If he died .intestate, owing no debts, the title of the plaintiffs, as his heirs-at-law, is as perfect and absolute, as was his own; at the time of his death.

If their title was one to. which the defendant had- no right to object, the judgment appealed from is free from error.

The deceased died on, the 20th of November, 1855. On the 15th of December, 1855, the Surrogate of New York, (the county in which P. B. Schermerhorn resided and died,) on proof satisfactory to him that P. B. Schermerhorn died intestate, granted letters of administration on his estate to George R. J. Bowdoin.

On or about the first of May, 1856, the plaintiffs tendered to the defendants, a full covenant warrantee deed of the premises in question. This action was brought to trial on the 22d of January, 1857. It was proved that diligent and proper search had been made for a will of the deceased, and that none could be found.

It was also proved, that on the 8th of June, 1856, an order was obtained by the administrator to advertise for creditors to present their claims on or before the 10th of January, 1857; that notice of the order had been duly published, and that claims to the amount of $500, only, had been presented.

It was also proved, that the personal estate of the deceased amounted to about $10,000, and that he was tenant in common with the other plaintiffs in property worth from $70,000 to $100,000, and was interested in still other real estate.

This evidence demonstrates, with a high degree of moral certainty, that the title tendered was perfectly good.

It is" true, there is a possibility, that a will may be discovered and established which may affect the title. There is also a possibility, that claims of creditors may be presented and established which will not only exhaust the personal estate, but which may make it necessary to resort to the real estate of the deceased to obtain satisfaction of such claims.

But the possibility is so slight as to be destitute of substance, and is not sufficient to justify the defendant in refusing to perform his contract.

As the law does not regard trifles, a bare possibility that the title may be affected by existing causes which may subsequently be developed, when the highest evidence, of which the nature of the case admits, and evidence, amounting to a moral certainty, is given, that no such cause exists, will not be regarded as a sufficient ground for declining to compel a, purchaser to perform his contract. (Winne v. Reynolds, 6 Paige, 407 and 413; Belmont v. O’Brien, 2 Kern. 395; Seymour v. Delaney, Hopkins’ R. 436; Spring v. Sandford, 7 Paige, 550.)

The evidence," to the admission of which the defendant excepted, was competent, with a view to establish the facts; that the deceased died intestate, and owing no debts, which could be made the means of impairing the title which the tendered deed, in terms, conveyed.

We think there is no error in the judgment appealed from, and that it should be affirmed.


author: Hoffman, J.— Boswobth, J.

text:
    The Eagle Works v. Wm. H. Churchill and others.
    1. The plaintiffs offered to sell the balance of their stock of cutlery to the defendants, and exhibited a list or invoice thereof, with the prices, which list was represented to contain an approximation to the sizes, quantities and qualities of such cutlery; and the defendants agreed to buy the same, on a credit of eight months, at a deduction of fifty per cent, from the list prices.
    2. The cutlery was, soon thereafter, all delivered to and accepted by the defendants. There was delivered with the cutlery a complete invoice of it, containing the actual descriptions, sizes, quantities, qualities, and list prices of the same. The defendants were requested to examine the cutlery, and if any thing was wrong, to inform the plaintiffs immediately. During the stipulated term of credit, the defendants made no objection to the cutlery. They sold and disposed of it.
    3. Seld, that, there being neither fraud nor warranty, the defendants were liable to pay fifty per cent, of the prices stated on the invoice delivered with the cutlery, although the latter invoice varied in some particulars, as to the quantity and quality of portions of the cutlery, from that exhibited at the time of the agreement to purchase.
    4. Evidence of the incorporation of a company, under and pursuant to'a statute of a sister State, which, such statute declares, shall be deemed sufficient, will be held sufficient in the courts of this State, to prove the fact of such incorporation, provided, that due proof of the existence and contents of such statute shall also be given. (Per Hoffman, J.)
    5. In an action by a corporation (proved to have been duly created) against a person, upon a contract made by him with such corporation, it cannot be set up, as a defence, that the corporation has been guilty of acts or omissions, which would subject it to a forfeiture of its charter, on proceedings duly instituted for that purpose by the State granting the charter.
    (Before Bosworth and Hoffman, J. J.)
    Heard, Nov. 10th;
    decided, Nov. 28th, 1857.
    This action comes before the Court at General Term, on an appeal, taken by the defendants, from a judgment entered, on the decision of a referee, in favor of the plaintiff, for $3,121.05.
    The action is brought to recover the alleged contract price of certain parcels of cutlery, sold by the plaintiffs to the defendants, about the 8th of April, 1856. The articles, alleged to have been sold, are specified in a schedule to the complaint, in which the several prices are stated, and the aggregate amount; and it is alleged, that the price was to be fixed, by a discount of fifty per cent, upon this aggregate, and that the cutlery was sold on a credit of eight months.
    The answer sets up the defence, of a sale by an invoice or list, produced and shown by the plaintiffs’ agent, and that the goods were represented by such agent to be of the description, sizes, styles, quantities and qualities set forth in such invoice, in whole packages, and in good order and condition. That, upon unpacking and examining the articles after they were delivered, they were found not to correspond with such descriptions and representations; that they were not the goods agreed to be purchased, but varied therefrom, greatly, and in many particulars; that they were goods of a lower grade, and cheaper class, than those the defendants had agreed to purchase; inferior in description, sizes, style, quantity and quality; comprising fewer goods of a saleable character, and more of an unsaleable nature; and containing broken packages, and defaced, shop-worn and injured parcels, and parcels with the labels erased, presenting the appearance of a refuse lot, from which the better goods had been sold out or selected.
    That, upon discovering the condition of the goods, the defendants offered to return them, and notified the plaintiffs to that effect; but the plaintiffs and their agent refused to receive them, and left them in the defendants’ hands, without any further action, until the month of December, and that the defendants held them, subject to the plaintiffs’ order.
    The defendants aver a willingness to pay for the goods, what they were reasonably worth, making the just deduction for the inferiority; and insist, that a deduction should be made of $500, from the sum demanded in the complaint, on that account.
    The referee, appointed to hear and determine the action, decided as follows, viz.:—

      "First.—That, about ten days previous to the 8th day of April, 1856, the plaintiffs, through their agent, Moses Camp, agreed to sell to the defendants the whole remaining stock of cutlery of the plaintiffs, at a credit of eight months; that, at the time of said agreement, said agent exhibited to the defendants a list or invoice, which, said agent represented, contained an approximation to the sizes, quantities and qualities of the cutlery so sold, the prices being set opposite each description, from which prices the plaintiffs were to deduct 50 per cent.

      “ Second.—That, in consummation of said agreement, the plaintiffs, on the day following, delivered to the defendants a small quantity of said cutlery, and, on the eighth day of April, 1856, delivered to the defendants all the balance of their stock of cutlery, together with a complete invoice of all .the cutlery so sold' and delivered, containing the actual descriptions, sizes, quantities, qualities and prices óf the same, which cutlery, so delivered, the defendants accepted, and have, since sold the same in the course of their business.
    “ And I further find, that the schedule marked A, annexed to the complaint, is a copy of such complete invoice, so delivered to the defendants with said cutlery.
    “ Third.—That such complete invoice varied from the said list, or invoice, exhibited at the time of making said agreement, and that the prices, so far as the goods corresponded, were the same in each; I therefore find, as a matter of law, that the plaintiffs, on the eighth day of April, 1856, sold and delivered, to the defendants, the goods, wares and merchandise mentioned and-deseribed in said complete invoice, so delivered to the defendants, with said cutlery, at the respective prices therein specified for the same, less a discount of 50 per cent, upon the aggregate, of said prices, at a credit of eight months.
    “And I find, that the. aggregate prices of said cutlery, less the said discount of 50 per cent., amounted, in all, to the sum of $2870.26; and that the credit, given upon such, sale, expired on the eighth day of December, 1856; and that the defendants are indebted to the plaintiffs, in the said principal sum of $2870.26, together with interest thereon, from the said eighth day of December, 1856, to the date of this report ;• which interest, I find, amounts to $123.88, and which principal and interest amount, together, to $2994.14, for which sum of $2994.14 the plaintiffs are entitled to judgment, with the costs of this action; all of which is respectfully submitted.”
    Judgment was duly entered on the report, and the defendants also duly excepted to the decision of the referee.
    On the trial, one of the defendants gave evidence tending to show, that the amount which ought to be deducted from the invoice prices, assuming the facts stated in the answer to be true, was $927.95.

      On the trial, a point was made, that the plaintiffs could not recover without proof of their corporate existence, and that such proof had not been given. The complaint alleges, that the plaintiffs “ are a corporation duly created under, and by the laws of the State of Connecticut, and doing business in the town of Winchester,” in said State.
    To this the defendants answer, “That they have no knowledge or information sufficient to form a belief,” whether such allegations are true.
    The evidence on this point, and portions of the evidence relating to the merits, are stated in the opinion of Mr. Justice Hoffman.

      Thompson da Kellogg, for plaintiffs.

      H. JB. Cowles, for defendants, the apellants.
   Hoffman, J.—

First, If there was not a warranty of the quality or value of the articles, and no fraud was practised by the plaintiffs or their agent, the claim for an abatement will be wholly unfounded. The contract of sale was made through Camp, the agent, about ten days before the 8th of April, 1856. On the day following the contract, a portion of the cutlery, which was then in New York, was delivered to the defendant. By the 8th of April, the whole was delivered, with an invoice or list fully made out, and of which a copy is annexed to the complaint. About the 8th or 9th of April, this invoice, or bill, was inspected by the defendants, or one of them. Objections were made to certain articles; there was an offer by the agent for a deduction respecting them; the defendants were then requested to examine the bill as soon as they could; one of them said that it would take two or three weeks to do so. The agent requested them to examine, and if any thing was wrong, to write to the Eagle Works immediately. The address was given; no communication was made by the defendants to the plaintiffs. On the 9th of December, 1856, the credit having expired, the plaintiffs wrote to the defendants, that the bill had fallen due, and they presumed it had been found correct, as they had not heard to the contrary. They forwarded a draft for the amount, which was dishonored.

In the interim, the goods had been shelved by the defendants and exhibited for sale, and after the defendant, Churchill, knew of their condition. They have been since transferred to other parties.

It would be unjustifiable to allow the defendants to rest for eight months without complaint or action, especially when they were invited to make their objections, and now to insist upon an abatement from the stipulated price, (Muller v. Eno, 3 Duer, 421.)

We are of opinion that there was no warranty of the articles, and no fraud practised in the sale. The agent distinctly apprised the defendants that he had made out the list from an old invoice; that it might vary from the true amount and value of the goods, but not substantially. The defendants chaffered to increase the discount, on the ground that it was a job-lot of goods they were purchasing.

2d. But an objection is taken, that the plaintiffs, a foreign corporation, have not established their capacity to sue.

The evidence is this:—

Moses Camp, a witness for the plaintiffs, swears, that the plaintiffs are a corporation, incorporated under the laws of Connecticut. The defendants objected to this mode of proof. The question was reserved. He also proved that it originated five years ago, and that the organization was still kept up.

The plaintiffs also produced in evidence, extracts from a book purporting to be the Revised Statutes of Connecticut of 1854, and from chapter 14 of such statutes. It was agreed, that these extracts, and the statute, might be read from the printed volume.

The Act, under which the plaintiffs claim to have been organized, was passed in 1837. It is found in the Revision of 1849, to which we have been referred. The Revised Laws of 1854 were also produced in evidence, and do not differ, in the sections relied upon, from the former provisions.

Under these provisions, the articles of association produced, and admitted to be genuine, were entered into; dated the 4th of November, 1851.

By another document, it is certified, that The Eagle Works was a joint stock corporation, formed under the laws of Connecticut, on the 4th of November, 1851, to manufacture cutlery, etc., with a named capital, divided into eight hundred shares of $25 each; that the stock had been subscribed for, by the persons named, in the shares and amounts specified. The stock was to be called in as the board should direct. This was signed by three directors and the president, on the 9th of January, 1852; was sworn to, and was received and recorded, January, 10, 1852, by John C. Mather, Secretary of State.

Certificates, sworn to by the president and three directors, are then annexed to the document, showing successive payments of the three instalments of twenty-five per cent. each.

These documents and certificates are attested and authenticated, by the Secretary of State of Connecticut, under the seal of the State, on the 13th of April, 1857.

From the case of The Welland Canal Co. v. Hathaway, (8 Wend. 480,) and the cases cited, I conclude, that the evidence of the corporation, which would be sufficient in Connecticut, will be sufficient here; except, perhaps, that a public statute must be proven as a fact. The admission to read it from the statute book dispensed with this. “ A copy of the charter properly authenticated, should be produced.”—Nelson, Justice, in the case above cited.

But when an association becomes incorporated under a general Act, something must be proven to show its organization. A certificate, authenticated by the seal of the State, and apparently conformable to the public Act, must be sufficient.

It is clear, that no subsequent faults or omissions which would work a forfeiture, can be made available to defeat this action, if the corporation was once legally constituted.

In Caryl v. McElrath, (3 Sandf. S. C. Rep. 176,) it was stated, that the Court would have probably held, had it been necessary, that the company, having claimed to be organized, and having acted as a corporation, the question of its actual existence was to be tested by the government, and not by parties -who had dealt with it.

The objections of the defendants, to the evidence adduced, are, that neither the proof of the preliminary meeting, prescribed in section 199, nor of the advertisement, with a copy of the articles, directed by section 210 to be published, has been made.

As to the first objection, the authorities cited by Mr. Angell, (on Corporations, § 638,) are express to the point, that corporations cannot be compelled, at a distant day, to produce the advertisement calling the meeting which organized them. (See, also, 5 Wendell, 478 ; 10 Johnson, 167.)

This rule is equally applicable to the other objection.

But, besides, a section of the statute, added in 1854, enacts, that a certified copy, by the Secretary of State, under the seal of the State, of the certificate of the president and directors, deposited in his office, for record, of the purposes for which the company was formed, etc., shall be received as sufficient prima fade evidence of the due formation, existence and capacity of such corporations in any suit.

It is again urged, that the 212th section provides, for annual returns to be made, by certificates, of the situation of the company, comprising various particulars, and that this has been neglected in many particulars. Without comparing the certificates produced with the requisitions of the section, we are satisfied that the objection cannot prevail in this action, even if well founded in fact.

The judgment should be affirmed, with costs.

Boswobth, J.

The articles of association, dated November 4, 1851, admitted to be genuine, and conforming to the statute laws of Connecticut, were received in evidence. By them, the subscribers thereto, and who had subscribed for the whole of its capital stock, declare that, “we do hereby associate ourselves as a body politic and corporate,” pursuant to such statute, and that the corporate name shall be, “ The Eagle Works.” The statutes themselves were duly proved and read in evidence. These statutes and these articles are the charter, or act of incorporation. Acts of user, under it, down to the time of the trial, were proved. Certificates of the payment of three several instalments of the capital stock, verified and recorded as such statutes prescribe, and certified in proper form by the Secretary of State, under his seal of office, were read in evidence. This evidence, as a whole, was objected to as “incompetent and insufficient.” No grounds of incompetency, or particulars of insufficiency, were pointed out. The statute was competent and sufficient evidence of its contents. It was agreed, that it might be read from the printed book. The articles of association produced, being admitted to be genuine, and conforming to the statute, were admissible. Under such a general objection, all the documents were properly admitted, and the only question, on this point, is, do they furnish prima fade evidence that the plaintiff is a corporate body. The production of • the Act of incorporation, and proof of such Acts of user under it, and of its continuing to act as a corporation, are prima facie, sufficient. Bank of Michigan v. Williams, (5 Wend. 478) and cases cited in the opinion of the Court. I think there is no error in the other decisions of the referee, and that the judgment should be affirmed.

Judgment affirmed.